Ireland – New protection and its limits under the Investor Compensation Act 1998

Blanaid Clarke (Lecturer in Corporate Finance Law, University College, Dublin) describes the aims and provisions of the Irish law (Investor Compensation Act 1998) which implemented the European directive (The Investor Compensation Schemes Directive 97/9/EC). Published in the Letter from … section of Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London

Takeover Regulation: Through the Regulatory Looking Glass

It is too early to make a complete judgment on the effectiveness of Directive 2004/25/EC on Takeover Bids as a regulatory mechanism. Such a decision would involve determining whether the Directive: achieves its goals, secures high levels of compliance from Member States and market participants and is democratically accountable. However, this paper places the Directive under a regulatory microscope in order to reflect upon some of its potential strengths and failings in respect of these criteria. A central regulatory problem for European legislators involved determining the optimal balance between harmonization and diversity. In an attempt to reach agreement between Member States, a framework Directive was agreed laying down minimum standards for takeover regulation and a number of key provisions were made optional. On the one hand, it is argued that even this light regulatory touch may have jeopardised the existing efficient self-regulatory regime which operates in the UK, the largest European takeover market. On the other hand, by allowing Member States a significant degree of discretion in implementing the Directive, problems of interpretation and classification arise (is the Directive a company law directive or a capital markets directive?), regulatory gaps may be identified, national differences emerge and the achievement of the Directive\u27s goal of facilitating takeovers and yielding a level playing field may be thwarted. In respect of the latter, the paper focuses on the restrictions on frustrating action and the breakthrough rule. Finally, the paper seeks to determine whether, in this context, competition is preferable to harmonisation. It was hoped that by setting down benchmarks the Directive might put a floor to the race to the bottom. Unfortunately, it is argued that the picture post-implementation does not support this contention

Takeover Regulation: Through the Regulatory Looking Glass

It is too early to make a complete judgment on the effectiveness of Directive 2004/25/EC on Takeover Bids as a regulatory mechanism. Such a decision would involve determining whether the Directive: achieves its goals, secures high levels of compliance from Member States and market participants and is democratically accountable. However, this paper places the Directive under a regulatory microscope in order to reflect upon some of its potential strengths and failings in respect of these criteria. A central regulatory problem for European legislators involved determining the optimal balance between harmonization and diversity. In an attempt to reach agreement between Member States, a framework Directive was agreed laying down minimum standards for takeover regulation and a number of key provisions were made optional. On the one hand, it is argued that even this light regulatory touch may have jeopardised the existing efficient self-regulatory regime which operates in the UK, the largest European takeover market. On the other hand, by allowing Member States a significant degree of discretion in implementing the Directive, problems of interpretation and classification arise (is the Directive a company law directive or a capital markets directive?), regulatory gaps may be identified, national differences emerge and the achievement of the Directive\u27s goal of facilitating takeovers and yielding a level playing field may be thwarted. In respect of the latter, the paper focuses on the restrictions on frustrating action and the breakthrough rule. Finally, the paper seeks to determine whether, in this context, competition is preferable to harmonisation. It was hoped that by setting down benchmarks the Directive might put a floor to the race to the bottom. Unfortunately, it is argued that the picture post-implementation does not support this contention

The Market for Corporate Control: New Insights from the Financial Crisis in Ireland

In an ever-changing legal and economic environment, it is incumbent on us to subject all such premises to scrutiny in order to consider their continued application. This Article considers the effect of the MCC on the management of Irish credit institutions in the run-up to the financial crisis. Part II sets the background by explaining how the MCC has become an integral part of takeover regulation in Europe. The weaknesses in the efficient market hypothesis, which underlie the MCC and are summarized in Part III, appear not to have undermined the theory’s credibility in the minds of public policy makers in Europe. Part IV explains the background of the financial crisis in Ireland, and Part V considers the effect of the MCC on management of Irish credit institutions in the runup to this crisis. A number of reports on the causes of the crisis in Ireland have identified corporate governance failures and, in particular, poor risk management and inappropriate remuneration structures in the years leading up to the crisis. These findings are consistent with similar studies of the financial crisis commissioned in other jurisdictions across the world. A concern is that this mismanagement does not appear to have been reflected in reduced share prices as the MCC would have predicted. In fact, the opposite occurred—share prices in credit institutions soared. This Article argues not only that the MCC did not have the anticipated disciplinary effect on management, but also that it may have had the opposite effect. It appears as if certain boards may have acted recklessly in order to maintain share prices to stave off takeover bids

Resolving the Crisis in U.S. Merger Regulation: A Transatlantic Alternative to the Perpetual Litigation Machine

Regulation by litigation has driven U.S. merger regulation to crisis. The reliance on private lawsuits to police disclosures and potential conflicts of interest in mergers, takeovers, and other control transactions has resulted in the filing of claims after every major transaction. However, it has failed to achieve meaningful benefits for shareholders and has instead deprived them of potentially valuable rights. Regulation by litigation has devolved into attorney rent-seeking, and the raft of substantive and procedural reforms aimed at resolving the crisis has failed. There is an alternative to regulation by litigation. Drawing upon the code and panel-based models of merger regulation in the United Kingdom and Ireland, this Article explores whether a regulatory model might be better at protecting shareholder interests in merger transactions. A regulatory alternative holds a number of significant advantages, including greater speed, responsiveness, certainty, and lower administrative costs. In light of these potential advantages, it is remarkable that no U.S. state has experimented with a code and panel-based model of merger regulation. We explain the persistent difference between the U.S. and Anglo-Irish models by reference to interest group politics and, in particular, the power of the bar to influence corporate law reforms in the United States

Resolving the Crisis in U.S. Merger Regulation: A Transatlantic Alternative to the Perpetual Litigation Machine

Regulation by litigation has driven U.S. merger regulation to crisis. The reliance on private lawsuits to police disclosures and potential conflicts of interest in mergers, takeovers, and other control transactions has resulted in the filing of claims after every major transaction. However, it has failed to achieve meaningful benefits for shareholders and has instead deprived them of potentially valuable rights. Regulation by litigation has devolved into attorney rent-seeking, and the raft of substantive and procedural reforms aimed at resolving the crisis has failed

Ireland – the treatment of employees in takeover situations

Article by Blanaid Clarke, Lecturer in Corporate Finance Law, university College, Dublin looking at legal measures effecting employees in takeover situations, with reference to the Irish Takover Panel act and rules, the European instruments, competition and companies legislation and influence of common law. Published in the Letter from … section of Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London

Crisis in the Irish Banking System

Ireland has had one of the most catastrophic experiences of financial crisis in the developed world, in the wake of the global financial crisis of 2008. Unlike the US or Britain though, Ireland’s enormous banking exposure was almost entirely related to property speculation and to the unchecked domestic housing bubble of the preceding ten years. This paper analyses the conditions that led to the crisis, taking account of patterns of corporate governance, regulatory institutions and practices, and the linkages between the banking sector and the political system.Author has checked copyrightMove to Geary Institute working papers and map to Politics once live - OR 18/10/201312/11/13 R

Crisis in the Irish Banking System

Ireland has had one of the most catastrophic experiences of financial crisis in the developed world, in the wake of the global financial crisis of 2008. Unlike the US or Britain though, Ireland’s enormous banking exposure was almost entirely related to property speculation and to the unchecked domestic housing bubble of the preceding ten years. This paper analyses the conditions that led to the crisis, taking account of patterns of corporate governance, regulatory institutions and practices, and the linkages between the banking sector and the political system