A transatlantic case: the derivative action as a corporate governance tool

The derivative action as a minority shareholder protection device seems to be almost a dead-letter law in the British Isles as compared with the United States. Whether it can or should be revived through legislative reform and judicial interpretation presents us with important governance questions at first instance, but also raises questions regarding the importance of law, as distinct from non-legally enforceable norms, to the development of corporate governance systems, in particular regarding the director-shareholder relationship

Legislative policy, law and competitiveness: a mysterious and difficult relationship in the EU

The Lisbon Agenda places Europe in a uniquely difficult position globally, most particularly as an example of a social and regulatory experiment which many consider to be doomed to failure. The drive towards economic competitiveness has led to a focus on regulation and its effect on entrepreneurship, productivity and business growth but assessing this relationship is complex for a number of reasons. First, not all regulatory effects can be predicted precisely in relation to behavioural outcomes. Path-dependency scholars have also demonstrated that the regulation will have varying effects depending on context. Second, theoretically it is clear that many non-regulatory factors may contribute to economic and competitive success. Third, there is evidence of internal conflict within the Commission as to the relative importance of the Lisbon goals. Finally, the experience of distinct Member States presents challenges both for assessment and prescriptive remedies. The Commission has estimated that the cost of regulatory compliance obligations on businesses in the EU is between 4% and 6% of gross domestic product and that 15% of this figure is avoidable 'red tape' (the term used specifically to signify unnecessary compliance burdens). This article proposes to assess the likely outcomes of de-regulation as we rapidly approach 2010, the year for attainment of the Lisbon goals

The corporate social responsibility movement and law's empire: Is there a conflict?

At the heart of corporate governance and social responsibility discourse is recognition of the fact that the modern corporation is primarily governed by the profit maximisation imperative coupled with moral and ethical concerns that such a limited imperative drives the actions of large and wealthy corporations which have the ability to act in influential and significant ways, shaping how our social world is experienced. The actions of the corporation and its management will have a wide sphere of impact over all of its stakeholders whether these are employees, shareholders, consumers or the community in which the corporation is located. As globalisation has become central to the way we think it is also clear that ‘community’ has an ever expanding meaning which may include workers and communities living very far away from Corporate HQ. In recent years academic commentators have become increasingly concerned about the emphasis on what can be called short-term profit maximisation and the perception that this extremist interpretation of the profit imperative results in morally and ethically unacceptable outcomes.1 Hence demands for more corporate social responsibility. Following Cadbury’s2 classification of corporate social responsibility into three distinct areas, this paper will argue that once the legally regulated tier is left aside corporate responsibility can become so nebulous as to be relatively meaningless. The argument is not that corporations should not be required to act in socially responsible ways but that unless supported by regulation, which either demands high standards, or at the very least incentivises the attainment of such standards such initiatives are doomed to failure. The paper will illustrate by reference to various chosen cases that law’s discourse has already signposted ways to consider and resolve corporate governance problems in the broader social responsibility context.3 It will also illustrate how corporate responsibility can and must be supported by legal measures. Secondly, this paper will consider the potential conflict between an emphasis on corporate social responsibility and the regulatory approach.4 Finally, this paper will place the current interest in corporate social responsibility within the broader debate on the relationship between law and non-legally enforceable norms and will present some reflections on the norm debate arising from this consideration of the CSR movement

JCOERE - Judicial Cooperation in the European Union: Insolvency and Rescue

In this conference paper, the JCOERE project consider some implications connected to the Preventive Restructuring Directive and the cooperation obligations under the EIR Recast against the backdrop of emerging European debates. The paper then goes on to consider how the PRD reflects a range of preventive restructuring processes that already exist in the EU with a particular focus on the Irish Examinership process

JCOERE Consortium. Report 1: Identifying substantive and procedural rules in preventive restructuring frameworks including the Preventive Restructuring Directive which may be incompatible with judicial co-operation obligations

Judicial Co-operation Supporting Economic Recovery in Europe (JCOERE).This report provides a comprehensive analysis of the nature of substantive and procedural aspects that may arise in complex preventive restructuring or rescue regimes as envisaged by the Preventive Restructuring Directive (2019/1023). The report includes a comparative analysis of eleven European Member State jurisdictions, considering their pre-existing systems and approaches, and their responses taken to the Preventive Restructuring Directive

Judicial Co-Operation in Economic Recovery (JCOERE)

Irene Lynch Fannon and Jennifer L. L. Gant provide an update on INSOL Europe’s involvement in the new EU-funded project

Special Report: Judicial Co-Operation in the European Union: Insolvency and Rescue

Judicial Co-Operation for Economic Recovery in Europe (JCOERE) is a research action project funded by the EU Commission DG Justice. JCOERE focuses on substantive and procedural rules typical to restructuring frameworks that are likely to present obstacles to court co-operation as mandated by the European Insolvency Regulation Recast. In its first Report (JCOERE 1) the Project surveys a range of rescue frameworks in European jurisdictions, benchmarked against core concepts in the Preventive Restructuring Directive. In its second phase, engaging proactively with national EU judiciary, JCOERE will document experiences with co-operation including utilisation of co-operation guidelines. It will disseminate its findings to support co-operation in corporate rescue. This report summarises the first steps and some of the preliminary findings that are fully described in JCOERE Report 1

Recognition of UK Insolvency Proceedings Post-Brexit: The Impact of a ‘No Deal’ Scenario

This paper examines the impact of a ‘no deal’ or ‘hard’ Brexit on the recognition of insolvency proceedings commenced in the UK by the remaining Member States of the European Union (‘EU’) post-Brexit. The paper considers the framework currently implemented by the Recast European Insolvency Regulation and the possible approaches when it will cease to apply to proceedings commenced post-Brexit. The paper identifies that there will be no overarching framework in the event that ‘no deal’ is reached between the UK and EU for post-Brexit arrangements, resulting in reliance on individual Member States’ domestic laws to determine recognition of insolvency proceedings commenced in the UK. The paper sets out the contrasting approaches of five of the UK’s key trading partners in the EU: France, Germany, Ireland, the Netherlands and Spain. The paper concludes that UK insolvency proceedings will not be recognised in a consistent manner in these Member States, which will be detrimental to stakeholders in, and ultimately the economies of, the UK and these Member States. In doing so, the paper underlines the importance of an agreement being reached between the UK and the EU on the recognition of cross-border insolvency proceedings for the benefit of all parties