Stakeholders and Takeovers: Can Contractarianism be Compassionate?

The issue of what, if any, purchase non-shareholder corporate constituencies (that is, employees, creditors, suppliers, customers, and communities) should have on the discretionary decisions of corporate management has proved to be one of the most durable, if not vexing, issues in modern corporate scholarship. Most recently, the issue has resurfaced in the context of the takeover wave of the 1980s, particularly during the latter part of the decade when control transactions became associated with high levels of leverage. At core, stakeholder advocates were riveted by the asymmetries involved in change-of-control transactions. While target shareholders earned consistent and sizeable returns from these transactions, stakeholders were left in the cold. Indeed, in some cases, control transactions were thought to be capable of inflicting highly focused losses on stakeholders. So severe were these losses that some commentators, were led to conclude it was the gains from opportunistic breaching of stakeholder contracts that motivated the transactions in the first place. As in the past, participants in the stakeholder and takeover debate generally array themselves into two distinct camps: one, which views any judicial or legislative attempt to protect stakeholders from harms not explicitly prohibited by corporate contracts as anathema (\u27non-protectionists\u27), and the other, which regards corporate responsibility for stakeholder harms as an innate and natural feature of the system of modern corporate governance (\u27protectionists\u27). In a perceptive article, Romano attributes part of the differences among scholars on divisive issues of corporate law to the starkly divergent normative beliefs that underlie each side. For non-protectionists, the underlying normative framework is individualistic liberalism, whereas for protectionists, it is usually communitarianism. Given the gulf that divides these underlying normative views, the hope for a principled and durable resolution to the stakeholder debate is indeed dim

Growing Pains: The Why and How of Canadian Law Firm Expansion

Over the last decade, the Canadian corporate law firm, like its counterparts in other industrialized countries, has undergone a profound transformation, the most remarkable feature of which has been the rapid growth of individual firms. Whereas a mere decade ago only one Canadian firm could boast of having more than 100 lawyers, today there are at least 19 firms that can make this claim. Accompanying the firms\u27 rapid growth has been their steady expansion into distant national and international markets. Significantly, even when that expansion has been confined to local markets, law firms have invoked a much broader array of growth instruments than in the past. In place of singular reliance upon the standard practice of recruitment directly from law schools and subsequent promotion through the ranks, law firms have shown themselves willing to deploy other methods including lateral recruitment (\u27cherry picking\u27), greenfielding, affiliations,and mergers. Interestingly, while the rationale for rapid law firm growth has been given belated, though careful, attention by legal academics, the issue of the mechanisms by which that growth can be achieved has been virtually ignored. This oversight is curious. By understanding the calculus governing the choice of growth instruments, important light can be cast on the structure of and rationale for the modern law firm, and on the way in which it has coped with the stresses and strains of a dramatically changing market environment

Breaking the Logjam: Proposals for Moving Beyond the Equals Approach

Over the last decade, the structure and performance of Canadian financial institutions has undergone a profound transformation. Propelled by both regulatory changes and market innovations, Canadian financial institutions have found their historically protected markets opened to intense competition from a variety of different sources. The most significant regulatory change has been the piecemeal dismantling of the pillars that have traditionally separated the core activities of banks, insurance companies, loan and trust companies, and securities dealers from encroachment by one another. With lower entry barriers, institutions have scrambled to penetrate each other\u27s markets. This entry has spurred a narrowing of differences in the structure and conduct of Canadian financial institutions. Another regulatory change that has spurred increased competition is the reduction, (or, in the case of American owned Schedule II banks, outright elimination) of the constraints that have traditionally limited the operations of foreign financial institutions in Canada. Not surprisingly, the reduction of these restrictions has spawned the growth of a highly dynamic foreign financial industry in Canada

Bad Policy as a Recipe for Bad Federalism in the Regulation of Canadian Financial Institutions: The Case of Loan and Trust Companies

This article addresses the impact of substantive policy on federal arrangements in the regulation of Canadian loan and trust companies. It is argued that reliance on market-suppressing policies (flat-rate based deposit insurance and selective bail·outs of depositors in the event of institutional failure) has undermined the value of competitive federalism in this area, and has spawned highly contentious policy initiatives such as Ontario\u27s Equals Approach. To redress the federalism problems in the regulation of loan and trusts, a useful starting point would be the enhancement of market forces in substantive policy. Here, it is argued that the commitment to secrecy regulation by financial institution regulators has impeded this enterprise

Must Boards Go Overboard? An Economic Analysis of the Effects of Burgeoning Statutory Liability on the Role of Directors in Corporate Governance

On July 21, 1992, six outside directors on the board of Westar Mining Ltd. resigned abruptly from the company\u27s board of directors. Westar was a troubled mining company operating in British Columbia. In 1991, the company had lost $62.2 million, mainly as the result of a poorly performing export coal mine. While resigning from the board, the directors assured the public that there had been no wrongdoing by the company. Rather, the reason for their departure was related to concern over personal liability for wages and other benefits that might be owed to more than 1900 of the company\u27s employees under provincial employment standards legislation should the company become insolvent. Despite the fact that their departure might not absolve them from liability for other duties and would greatly complicate the company\u27s bid for survival, the size of the personal liabilities they faced - more than$20 million - left the directors little choice. Predictably, the announcement of the resignations created considerable consternation in the financial community, the magnitude of which was enhanced when, just one week after the Westar resignations, the entire board of PWA Corp. resigned en masse from the boards of each of its subsidiaries, including Canadian Airlines Ltd. As in the case of Westar, the directors attributed their decision to the fear that they would be forced to pay employee wages, taxes or some other obligation out of their own pockets should the struggling airline run out of money . These highly publicized defections have been invoked by critics as exemplifying the rather myopic and unthinking addiction that Canadian governments have developed to the elixir of directors\u27 liability. By one legal practitioner\u27s account, in Ontario alone more than 100 different federal and provincial statutes prescribe some type of directors\u27 liability. Some critics have gone further and have viewed the board resignations as a powerful passion play that demonstrates in vivid terms the callous and hostile treatment that Canadian shareholders and business managers can expect to receive at the hands of populist legislatures

State Regulatory Competition and the Threat to Corporate Governance

The subject of this paper is the impact of the new globalized order on the integrity of corporate governance. Corporate governance is the system of laws, markets and institutions that seeks to control and discipline corporate activity in the service of the public interest. Over the last several years, many critics have bemoaned the growing integration of various economic markets across national boundaries because it is seen to lessen the capacity of states to regulate corporate behaviour. Essentially, the claim is that in a setting of reduced barriers to factor and product mobility, corporations are rendered much more effective in their capacity to extract regulatory concessions from host governments, and these concessions have the effect of lowering social welfare. The argument is that in a setting of high international corporate mobility, footloose corporations will relocate their operations to whichever jurisdiction offers the most congenial (meaning least stringent) regulation. In the face of certain corporate migration in response to more stringent regulation, states will have no choice but to refrain from adopting socially optimal regulation. This is because states fear the loss of benefits associated with corporate activity: namely, employment, investment and tax revenue. The effect is an international race to the bottom in which states are rendered helpless in countering the effect of heightened corporate mobility

Too Close for Comfort: The Role of the Closely Held Public Corporation in the Canadian Economy and the Implications for Public Policy

For several decades, American corporate scholars assumed the inevitability of the widely held Berle and Means\u27 corporation. The argument was simple. In a rapidly developing industrial economy, economic prosperity dictated the infusion of massive amounts of capital into owner-managed corporations. Without ample capital, entrepreneurs would be unable to realize the scale economies or technological innovations necessary for industrial growth. The rub in the story, however, was that to raise the necessary capital, owner-managers had to sell off equity interests. Inevitably, the pressure for capital meant that ownership ended up being dispersed among numerous small stakes shareholders. With ownership fractured, sundry collective action problems subverted the capacity of shareholders to wield effective control over their managerial agents, which, in tum, meant efficiency losses from sub-optimal resource utilization. Recently, however, recognition of the survival of concentrated share ownership corporations in other countries, namely Germany and Japan and even in the United States, has caused American scholars to reconsider their commitment to the evolutionary inevitability of the Berle and Means\u27 corporation. No longer the byproduct of innate economic forces, the American corporation has of late been viewed by many as merely path dependent, more particularly the result of a confluence of political, historical and cultural factors. Perhaps the most important was the restriction barring financial intermediaries from holding or voting ownership interests in commercial companies. Had these barriers not been created, ownership may have come to reside in sophisticated large stakes shareholders, who were much more likely than retail investors to control managerial agents

Electricity Restructuring: The Ontario Experience

Over the last decade or so, a number of jurisdictions throughout the developed and developing world have embarked upon major competitively oriented restructurings of their electricity industries. Ontario has recently joined this list. Historically, Ontario Hydro has been the largest state-owned enterprise in Canada, having been created by the government of Ontario in 1906 initially to construct and operate a provincial transmission grid which would deliver power from privately owned hydro-electric generators to various municipally owned distribution systems. Ontario Hydro quickly broadened its vision to embrace a province-wide transmission grid and the progressive acquisition of most privately owned generating facilities in the province, as well as the construction of massive new generating facilities of its own. Ontario Hydro currently generates about 90% of the electric power sold in the province, about 60% of which is generated by nuclear facilities built in the 1970s and 1980s. Throughout its history, Ontario Hydro has occupied a unique and in many respects dominating political and economic influence in the province. It has rarely been far from the public eye, and major cost over-runs in system expansion precipitated the first of many commissions or like inquiries as early as 1920. By 1923, debts incurred on behalf of Ontario Hydro amounted to one-half of the entire provincial debt. Despite frequent public inquiries over the years into aspects of its operations, the basic vertically integrated, public monopoly structure of the industry that emerged in its first 20 years of operations has remained intact until very recently. The current Ontario government has now committed itself to wholesale and retail competition in electricity by the year 2000 and has restructured Ontario Hydro into two state-owned successor companies constituted under the Ontario Business Corporations Act. One of these will own the high voltage transmission grid and the other will own the generating facilities subject to commitments to transfer effective control of these facilities to private competitors so as to reduce Ontario Hydro\u27s market share to 35% of price setting plant output within 3 1/2 years of market opening and 35% of all generating output sold in the province within 10 years. Significant rationalization of the almost 300 municipally owned local distribution utilities (LDCS or MEUS) in Ontario through amalgamation or privatization is anticipated (and is already occurring, albeit slowly)

Private Provision of Public Infrastructure: An Organizational Analysis of the Next Privatization Frontier

Constrained by severe, ongoing fiscal pressures and sensitive to concerns over bureaucratic inefficiency, policy-makers in a number of countries are re-evaluating both the goals and instruments of the modern state. In doing so, some have endorsed the need for government \u27reinvention,\u27 a term that is admittedly susceptible of a broad range of meanings, but which nonetheless contemplates a significant shift away from reliance on governmental provision of goods and services in favour of provision by the for-profit and third sectors.\u27 Although not uncontroversial, the claim is that, in comparison with governmental supply systems, both for-profit and third sector modes of delivery offer a superior means for organizing productive activity because of the greater incentives that exist within these organizations for lower-cost, innovative production. Although the claim has been made in a number of different policy contexts, we focus on its salience in the context of government\u27s role in supplying traditional physical infrastructure projects such as roads and highways, bridges, dams, water and sewage systems, and airports

The Political Economy of Rule of Law Reform in Developing Countries

In this paper, the authors briefly review the recent experience with rule of law reform initiatives in Latin America, Africa, and Central and Eastern Europe, drawing on more detailed case studies by the authors. The authors are currently working on a similar case study on rule of law reform experiences in Asia