At first blush, the rise of independent directors in Singapore provides a straightforward example of an extraordinarily successful legal transplant from the West to Asia. In 2001, Singapore implemented a UK inspired Code of Corporate Governance (Code), which required the adoption of independent directors on a comply or explain basis. Shortly thereafter, an overwhelming 96 percent of Singapore listed companies reported full compliance. This, combined with Singapore’s world leading economic success, ostensibly confirmed the Anglo-American-cum-global conventional wisdom that independent directors are required for good corporate governance.

This article reveals, however, that Singapore’s supposedly conventional legal transplant was, in fact, unconventional. The original Code defined independence as requiring no independence from controlling shareholders at all—a seemingly illogical aberration from the definition used in most other controlling shareholder jurisdictions. Historical evidence suggests that Singapore’s unconventional approach, however, was the product of strategic regulatory design (not ignorance) and, we argue, was surprisingly effective. It all but guaranteed exceptionally high compliance rates, which sent a critical signal of “good” corporate governance to international markets in the wake of the Asian financial crisis; while, at the same time, allowing Singapore to functionally maintain its efficient (quasi-state and family-owned) controlling shareholder environment.

We suggest that Singapore’s successful use of what we coin “hollow signalling” was possible primarily because it possessed unique functional substitutes for limiting private benefits of control, which would otherwise have been the primary function of “properly defined” independent directors. In addition, Singapore’s effective, albeit unconventional, use of “hollow signalling” and its somewhat surprising recent move away from this seemingly successful approach will be explored in this article.

We use hand-collected data from four German crowdinvesting portals to analyze what determines individual investment decisions in crowdinvesting (which is also referred to as equity crowdfunding). In contrast with the crowdfunding campaigns on Kickstarter, where the typical pattern of project support is U-shaped, we find crowdinvesting dynamics to be L-shaped. The evidence shows that backers base their investment decisions on information provided by the crowdinvesting portals as well as the behavior and comments of other investors. Furthermore, crowd investors engage in herding behaviour. These findings offer support for adequate information disclosure requirements that are consistent with ongoing regulatory reforms such as the JOBS Act in the United States, but that behavioral components also affect investment decisions of the crowd.

Abstract: This presentation discusses findings from an Australian study of the costs of tax dispute resolution. It focuses on the resolution of individual taxpayers’ applications to the Administrative Appeals Tribunal (AAT) for the review of the Australian Taxation Office (ATO)’s decisions. A simple model was formulated under the assumption of short-term cost minimisation to explain which route the taxpayer is likely to take for resolving a tax dispute: ATO internal review, AAT review without professional assistance or AAT review with professional assistance. The decision rule involves three parameters: the amount of tax in dispute, the costs of tax dispute resolution to the taxpayer and his/her subjective probability of being successful at the AAT. Hypothetical costs are then constructed for two scenarios: with and without professional assistance. In the former case, the professional assistance fee is a main cost component while the opportunity cost of time loss represents the bulk of the costs in the latter. The costs are substantial, especially if professional assistance is engaged. An examination of the data reveals that (i) the proportion of taxpayers in dispute taking the external review route is under 5%, and (ii) the STCT has been playing a declining role over time. These findings support the claim that personal costs represent a considerable barrier to access tax justice. This may pose a challenge to the tax authorities in setting court fees and other assistance to taxpayers at an ‘equilibrium’ level which discourages frivolous disputes but not genuine tax grievances. It is recommended that (i) the STCT’s $5,000 tax threshold should be raised
The presentation will also discuss the next stage of the research which examines the costs involved in larger disputes in an effort to determine how significant scale and resources are in determining the outcome of tax disputes and the development of the tax law via the courts.

Abstract: How should we think about regulating our dynamically changing financial system? Existing regulatory approaches have two temporal flaws. The obvious flaw, driven by politics and human nature (and addressed in other writings), is that financial regulation is overly reactive to past crises. This article addresses a less obvious flaw: that financial regulation is normally tethered to the financial architecture, including the distinctive design and structure of financial firms and markets, in place when the regulation is promulgated. In order to effectively address future crises, this article argues, financial regulation must transcend that time-bound architecture. This could be done by regulating the underlying economic functions of the financial system — the provision, allocation, and deployment of financial capital — as well as the financial system’s capacity to serve as a network within which those functions can be conducted. The article analyzes how to design and implement such a "functional" approach to financial regulation. Although this approach is primarily normative, it provides regulatory ordering principles that should have practical utility — not only as a set of standards to inform actual regulatory design but also as a counterweight to the prevailing view that macroprudential regulation of systemic risk can be adequately served by an ad hoc assortment of regulatory "tools."

Abstract: Legal scholars, economists and other social scientist often refer to the idea that countries can be classified into a number of “legal families” or “legal origins”. Yet, this research is unsatisfactory as regards the actual classifications of the legal systems of the world. Thus, it is the aim of this paper to develop a new taxonomy of legal systems. This taxonomy is based on a new dataset of 157 countries that is subsequently analysed with tools of network analysis. In particular, this paper suggests that the world’s legal systems can be divided into the four clusters of “the Good Old Common Law”, “the Modern European Legal Culture”, “the Authoritarian Core”, and “the Weak Law in Transition”. This has important implications, not only for our understanding of the legal world, but also for the feasibility of legal transplants and harmonisation.

Abstract: The relationship between competition (that is, the market structure and the degree of rivalry) and innovation has long been an area of interest for economists. Fewer researchers have attempted to make sense of the legal implications of this complicated puzzle, which has the potential to transform our understanding of intellectual property and competition law. The fact that the relationship between market structures and the degree of innovation is a complex one (and at least considerably more complex than the relationship between prices and market structures) has sometimes been used (in particular in the US) as an argument against the strict enforcement of competition law, in particular in high-technology industries. This work takes a different perspective on the question. Unlike previous research, it does not seek to draw conclusions from economic research in the field, which is not disputed and is taken as a given. The paper seeks instead to make sense of the impact of the introduction of dynamic innovation considerations in competition law analysis on the legal and institutional architecture on which the enforcement of the discipline rests.

Abstract: I exploit the passage of the UK Bribery Act 2010 as an exogenous shock to UK firms’ cost of using bribes to study whether the ability to pay bribes creates firm value. I find that UK firms operating in high corruption regions of the world exhibit negative abnormal returns upon passage of the Act. This effect is stronger for firms that are not subject to US anti-bribery regulation, are not part of corporate social responsibility indices, operate in concentrated industries, and are better governed. Foreign firms subject to the Act because they have a UK subsidiary also exhibit negative abnormal returns. I also identify real implications of the Act: After enforcement, UK firms expand their subsidiary network less strongly into high corruption regions of the world and their sales in these regions grow 6 percentage points more slowly than sales of comparable continental European firms. Thus, the ability to pay bribes creates firm value and unilateral anti-bribery regulation hurts affected firms.

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Abstract: Varying forms of collaboration between law and economics have been shaping the academic discourse for quite some time. More pragmatically, the European law of financial markets and of listed stock corporations has established a remarkably close working relationship with economics in legislative policymaking and to a lesser extent in judicial practice. All of this suggests a similarity in questions asked, in language used and in scientific tools employed. Surprisingly, closer inspection does not corroborate this presumption but reveals fundamental differences between both disciplines. While legal and economic scholars are considering the same phenomena, their epistemic motives are as diverse as the scientific methodologies they employ. Hence, a problem familiar to legal comparativists is arguably even more pressing for legal scholars working in the broader area of finance law: Can we successfully aim at transplanting findings not of a foreign legal culture, but of a different academic discipline into the law?
    While “economic transplants” form a necessary part of many areas of law in general and the law of financial markets more specifically, the task of making such transplants work is a more complicated matter than one should hope. The argument proposed here claims that the strong appeal economic reasoning has had for law-making in the area of financial markets forms part of a more general quest for backing up legal reasoning by “scientific” arguments. Recognizing the merits of this approach, its limits are exposed and the requirements of normative judgments in law are highlighted. Taking it from there, some preliminary rules of thumb for successfully integrating economic transplants into a legal environment are introduced.

Abstract: This article explores the influence of the pension system on corporate governance, which has so far received little attention in the corporate law literature. While the shareholder-centric view of corporate governance is strong today, this is a relatively recent development. “Managerial capitalism” began to give way to shareholder capitalism over the past three decades. The article argues that changes in the pension system, specifically the shift from defined-benefit plans to defined-contribution plans that began in the 1970s, have been a major force pushing the corporate governance system toward shareholder primacy. While in traditional pension plans, workers depended primarily on their employer’s ability to fund pensions, in today’s system retirement benefits strongly depend on capital markets. Shareholder wealth thus became more important for larger segments of society, and pro-shareholder policies became more important relative to pro-labor policies strengthening employees’ position vis-à-vis their employers. Consequently, shareholder primacy became the dominant factor in corporate governance debates. Managers today claim to focus on this objective and are less well positioned to take the interests of their firm’s employees or other groups into account. The political economy of corporate governance underwent a seismic shift. While it is not clear whether shareholders truly benefit from most reforms, these have been largely supported by the center-left given their apparent beneficial effects for shareholders and consequently the middle class. For the same reason, unions have been among the most eager proponents of shareholder activism.
In Continental Europe and Japan, the pension system was also an important factor that infused at least some degree of shareholder wealth maximization spirit into these corporate governance systems. Previously, capital markets were largely irrelevant for workers due to these countries’ generous public pension systems. During the 1990s, demographic pressures induced European and Japanese governments to adjust pension systems to rely more strongly on private pensions. Conspicuously, corporate governance practices began to change at the same time. The article argues that these developments are linked.

Abstract: This paper explores the possibility for efficient long term contracts among traders with changing and privately known incentives for exchange. We analyze a negotiation process that enables parties to adapt the default rules of exchange to changes in their preferences for trade. The selection of control rights and default options is delegated to the parties themselves, who collectively are best informed as to which investments and exchanges are efficient. The paper demonstrates how contracts with flexible and endogenous default options are tailored to induce efficient investment and optimal exchange. Applications of our findings for contract theory, the design of commercial contracts, and the need for legal support are discussed.

Abstract: This article investigates the phenomenon of litigation undertaken by Patent Assertion Entities (PAEs), often referred to as ‘patent trolls’, within the legal system of the Patents Court (PHC) of England and Wales during the period 2000-2008. Our analysis shows that patent suits involving PAEs at the PHC are rare – they account for less than 6% of all patent cases. We suggest two reasons why the PHC does not provide a welcome venue for PAE litigation. Firstly, the majority of patent cases which reach a judgment in the UK result in a ruling invalidating the patent. Secondly, the costs regime in the legal system of England and Wales requires that the losing party pay the costs of the other side. In other words, even if its own costs are kept low, a PAE which loses a case may have to spend a substantial amount of money in order to cover the costs of the other side. When taken together, it is likely that these two aspects discourage litigation by PAEs at the PHC, which accounts for the low volume of cases when compared with other jurisdictions such as the US. We also offer interesting insights to the wider debate concerning whether it is likely that in the near future there will be a similar increase in PAE litigation in Europe as has already occurred in the US over the last decade. This article also discusses potential implications for the design of the proposed European Unified Patent Court.

Abstract: The global economy's centre of gravity is shifting. Emerging and developing countries have been contributing over 50% of the global GDP since the onset of the 21st century, which is unprecedented since the Industrial Revolution. This paper offers the first analysis of the creeping convergence of the BRIC world (ie, Brazil, Russia, India and China) with global legal standards in a key area of International Law: the International Tax Regime (ITR). The ITR is a legal technology fundamentally designed by the League of Nations in the 1920s, when the BRICs played an irrelevant role. This paper proposes a theory which aims to illuminate the core driving forces of the on-going trend towards global convergence in this area of International Law from both the static and dynamic dimensions. It is grounded on the logic of two-sided platforms.

Abstract: The secured creditor control in the resolution of distress in small businesses can have two effects: it can reduce the ex-post cost of financial distress but, on the other hand, secured creditors and business owners may collude to divert value from junior creditors. This concern has been particularly expressed in the US for state procedures under which a large percentage of small businesses are restructured. In the UK the secured creditors have introduced the highly contested practice of pre-packs which vividly highlights this trade-off. In a pre-pack, an insolvency practitioner, appointed by the secured creditor, can privately sell the company without involving the courts or consulting with junior creditors and in 50% of the cases the company is sold back to the original owner. Contrary to widespread criticism that this procedure leads to collusion, we find no evidence of exploitation of conflict of interests and we find that it preserves the value of the business and maximizes recovery in circumstances in which a public announcement of bankruptcy would destroy value. In small businesses where secured creditors are concentrated the benefits of their control seem to outweigh the costs. This evidence contradicts the view that court supervision, instead of freedom of contracting, is always needed to avoid expropriation. Moreover, the findings of the paper have important implications for debates about auction designs of bankruptcies and for the social implications of using floating charge as a debt resolution mechanism.

Abstract: Shavell (1994) in a seminal contribution has compared the incentives to acquire information prior to sale under required versus voluntary disclosure. As some of his findings seem intriguing and the topic remains to be of great importance it may be worth having a closer look at the underlying assumptions. In particular, he assigns all bargaining power to the party who acquires information. The present paper introduces a generalization of Shavell’s model. Moreover, instead of concentrating on an explicit bargaining game, the analysis relies on disclosure, incentive and participation constraints only that are shared by all bargaining procedures. The present paper uncovers that some of Shavell’s findings rest indeed on the extreme assignment of bargaining power as well as on confining the analysis to trade decisions where trade always occurs, no matter which move of nature prevails.

Corporate governance codes are an increasingly prominent feature of the regulatory landscape in many countries, yet remarkably little is known about the determinants of corporate governance reform. Potential determinants include: (1) the diffusion of an international benchmark model of good governance; (2) a country’s legal system; (3) the desire to attract foreign investors; and (4) the influence of interest groups. I construct a proxy for the investor-friendliness of 52 corporate governance codes of different jurisdictions and collect data on the code issuers. I find strong evidence that the drafters of codes emulate international benchmark models and that jurisdictions belonging to different legal traditions use different regulatory strategies, some evidence that portfolio equity inflows are associated with the investor-friendliness of codes, and no evidence that interest groups succeed in affecting rules. The article suggests a method for the modeling of legal evolution, convergence, and the political economy of corporate governance codes.

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The Eurozone banking and sovereign debt crisis has brought the fragility of the European monetary union into sharp focus and exposed the lack of effective instruments at the European level to maintain financial stability. As a response to the crisis, the Member States and the institutions of the Union adopted in short succession several financial assistance measures that have given rise to much political and legal controversy. The European Central Bank (ECB) played an active role in the institutions’ efforts to contain the crisis and prevent the disintegration of the Eurozone by deploying a number of so-called non-standard or unconventional monetary policy measures, namely its Securities Markets Programme, Long-Term Refinancing Operations, and in September 2012 the Outright Monetary Transactions Programme (OMT Programme). The OMT Decision envisages  ...

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This article makes the claim that certain strands of thinking within the sociology of knowledge, including the sociology of science, may provide some of the most powerful intellectual resources for rethinking the role of law within economic life. Starting with an understanding of the ?rationality' of economic actors as a situated social construction, this literature encourages us to explore law's role in the construction, dissemination, and evolution of the structures of knowledge which form the foundation of particular market rationalities. It offers one potential avenue for answering recent calls for further research into the constitutive role of law in economic life.

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The mandatory bid rule has its origins in the UK and now applies throughout the EU and in many other jurisdictions. Under a mandatory bid, an acquirer of a controlling stake in a listed company has to offer to the remaining shareholders a buy-out of their minority stakes at a price equal to the consideration received by the incumbent controller. While the rule warrants that no value-destroying control transfers take place, it is often criticised for preventing value-increasing transactions. This paper challenges some of the claims made by critics of mandatory bids. Highlighting the effects of synergy gains in private sale-of-control transactions, it is shown that mandatory bids prevent inefficient control transfers, where minority shareholder protection rules provide inadequate protection. Furthermore, mandatory bids help facilitate transfers to the most efficient bidders in multi-bidder settings. The mandatory bid is justifiable, on economic grounds, in wider circumstances than is commonly assumed by law and economics scholars.

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Should transactional lawyers bear responsibility when their competent actions facilitate unlawful activity by their client? Or is a lawyer's only concern to act in the client's interest by providing her with the advice and support she seeks? The high profile failure of Lehman Brothers provides a unique opportunity to explore these questions in the context of the provision of a legal opinion by a magic circle law firm. A legal opinion which, although as a matter of law was accurate, was a necessary precursor to an accounting treatment by Lehman Brothers which was described by the Lehman's Bankruptcy Examiner as ‘balance sheet manipulation’. The article argues that the law's existing understanding of when consequential responsibility should be imposed on those who assist another's wrongdoing provides a theory and a tool‐kit whose application can be justifiably extended to the professional regulation of transactional lawyers.

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We investigate the hypothesis that shareholder empowerment may have led to more bank bailouts during the recent financial crisis. To test this hypothesis, we propose a management insulation index based on banks’ charter and by-law provisions and on the provisions of the applicable state corporate law that make it difficult for shareholders to oust a firm’s management. Our index is both conceptually and practically different from the existing alternatives. In a sample of US commercial banks, we show that management insulation is a good predictor of bank bailouts: banks in which managers are fully insulated from shareholders are roughly 19 to 26 percentage points less likely to be bailed out. We also find that banks in which the management insulation index was reduced between 2003 and 2006 are more likely to be bailed out. We discuss alternative interpretations of the evidence. The evidence is mostly consistent with the hypothesis that banks in which shareholders were more empowered performed poorly during the crisis.

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The limits of markets as mechanisms for constraining socially suboptimal behavior are well documented. Simultaneously, conventional approaches toward the law and regulation are often crude and ineffective mechanisms for containing the social costs of market failure. So where do we turn when both law and markets fail to live up to their social promise? Two possible answers are culture and ethics. In theory, both can help constrain socially undesirable behavior in the vacuum between law and markets. In practice, however, both exhibit manifest shortcomings. To many, this analysis may portend the end of the story. From our perspective, however, it represents a useful point of departure. While neither law nor markets may be particularly well suited to serving as “the conscience of the Square Mile”, it may nevertheless be possible to harness the power of these institutions to carve out a space within which culture and ethics – or, combining the two, a more ethical culture – can play a meaningful role in constraining socially undesirable behavior within the financial services industry.

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Contemporary accounts of corporate legal evolution view lawmakers as highly responsive to the economic interests of both pressure groups and markets. Through this lens law is understood to be the product of pressures exerted by managers, investors, institutional shareholders and the Federal Government, and the incentives of state lawmakers to accommodate the interests of these pressure groups. This lens dominates our current understanding of corporate legal evolution in the United States and is becoming highly influential in comparative accounts of corporate legal variation. This article sounds a note of objection. The article argues that the disciplinary pendulum has swung too far toward external accounts of legal evolution and too far away from internal accounts of legal change which view the path of law, at least in part, as the product of the internally generated constraints of the legal system – the relative autonomy of the law. To make this argument, the article considers the internal constraint of the conception of the corporation in 19th century US and UK corporate law and the evolution of self-dealing law in these two jurisdictions. It shows how two jurisdictions that started from the same legal proposition about self-dealing diverged rapidly as a result of the interaction of this proposition with profoundly different conceptions of the corporation. Contrary to the dominant account of the evolution of self-dealing law in the United States, the contemporary self-dealing rule is not the legally unexplained product of external market pressures but the logical and consistent product of the path of fiduciary law trodden through the corporate conception. The article shows that for contemporary corporate law a significant dose of inevitability was administered at the inception of general incorporation.

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This article argues that accounting-based distribution regulation provides variable and at times significant protection to both existing involuntary creditors - by increasing the probability that they will be paid - and the constituency of involuntary creditors - by decreasing the probability that companies' actions will produce involuntary creditors. These benefits become visible when close attention is paid to the interaction of applicable accounting standards on the recognition of provisions with the UK's existing distribution regime. Whilst the current debate and reform consensus correctly analyses the relationship between the current regime and adjusting creditors, the article argues that the organizing category of the 'capital maintenance doctrine' has obstructed inquiry into the ways in which the existing rules' dependence on accounting standards results in benefits for involuntary creditors.

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The global economy’s centre of gravity is shifting. Emerging and developing countries have been contributing over 50% of the global GDP since the onset of the 21st century, which is unprecedented since the Industrial Revolution. This article offers the first analysis of the creeping convergence of the BRIC world (i.e. Brazil, Russia, India and China) with global legal standards in a key area of International Law: the International Tax Regime (ITR). The ITR is a legal technology fundamentally designed by the League of Nations in the 1920s, when the BRICs played no relevant role. This article proposes a theory that aims to illuminate the core driving forces of the on-going trend towards global convergence in this area of International Law from both the static and dynamic dimensions. It is grounded on the logic of two-sided platforms.

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This article aims to offer the first structural analysis of tax disputes under institutional instability using a core element of the international tax regime as an example. It offers a theory grounded on Mancur Olson’s seminal contribution to group dynamics, the logic of collective action. It also suggests implications of this theory that might help to address key enforcement issues faced by the international tax regime in a frequent context worldwide: institutionally unstable countries.

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Certain parts of the international tax system are largely unexplored from a structural perspective. One prominent example is the asymmetric tax treaty network, i.e. the network that consists of bilateral tax treaties concluded between developed and emerging countries on the basis of the OECD Model Tax Convention on Income and on Capital (OECD model). The relative size of this network is substantial. For instance, the United Kingdom's asymmetric tax treaty network represents about 72 per cent of its entire tax treaty network. This article offers a structural analysis of the asymmetric tax treaty network. It answers two fundamental questions. First, it elaborates a theory for explaining why a representative emerging country is willing to conclude tax treaties with developed countries on the basis of the OECD model. Secondly, this article extends that theory to understanding the dynamics of tax treaty interpretation in the emerging world. This extension aims to illuminate the structure of incentives the courts of a representative emerging country normally have when construing OECD-based tax treaties in the foreign direct investment (FDI) area. Game theory is used as a theoretical framework for answering both questions.

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This chapter shows the evolutionary path of transfer pricing dispute resolution in twenty countries from the five continents since 1799. It consists of six core stages that encapsulate how the ALP has gradually evolved from being a rule–based regulation to a procedural, standard–based regulation over the last century. The main driving force of this transformation is probably the ALP adaptation to two central technological innovations: the emergence of multinational enterprises over the first globalisation (1850-1914) and, then, the emergence of the international trade in intangibles during the second globalisation (1945 to the present).

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The financial scandals of the last decade have called into question the effectiveness of the system of securities regulation in many countries. Articles that have examined the origins of the regulatory crisis have concluded that the classical tools of corporate governance for the supervision of management have lost their force in light of new incentive structures in the financial markets. They see as the solution to the regulatory lacunae the utilisation of financial intermediaries and other market participants as gatekeepers, i.e. as agents that ensure compliance of the primary market actor (the issuer) with applicable rules by reviewing its disclosures and withholding their participation in transactions if violations occur. However, commonly acknowledged contours of gatekeeper liability have not yet emerged. Furthermore, the discussion is largely confined to an abstract analysis of the advantages and disadvantages of the gatekeeper theory without asking whether the legislative measures that are in force may be construed in a way that facilitates considerations of the theory. This essay undertakes to remedy the omission. It conducts a comprehensive analysis of the US and European regulation of the market for securities, identifies deficiencies and suggests a new approach to solve one of the major conundrums of the current discussion - the standard of care that the gatekeeper should be held accountable for when reviewing the acts of the primary market participant. The essay concludes by advancing a tentative explanation of certain trends of convergence between US and European regulatory mechanisms that can be observed.

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This article uses the recent drive in the UK to abolish gold-plating as a starting point to analyse whether EU legislation on prospectus disclosure, transparency requirements, and market abuse provides for maximum harmonisation or allows Member States to adopt super-equivalent implementing measure. In addition, the article develops a number of general criteria to identify situations where maximum harmonisation may be beneficial, and cases where the setting of minimum standards, or merely the removal of obstacles to crossborder mobility, is advantageous. The article argues that prospectus disclosure entails largely maximum harmonisation. The character of the Transparency and Market Abuse Directives, on the other hand, is ambivalent. Recent case law calls into question the permissibility of the super-equivalent implementation of the Market Abuse Directive by UK law. As far as the benefits of harmonisation are concerned, the article distinguishes between disclosure obligations and liability provisions. It is submitted that harmonisation is beneficial with respect to the latter, but should be scrutinised carefully in case of the former.

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The increase in corporate mobility in Europe and its impact on different aspects of company law (making) has dominated much of the academic writing in European company law over the last two decades. One aspect that, it is argued, has not yet been fully appreciated in this context is the extent to which all national company law systems depend on features of adjacent areas of (national) law in order to achieve the desired regulatory outcomes. Company law, insolvency law, and to some extent tort and criminal law, interact with each other in highly complex ways to form integrated, coherent regulatory systems on the national level.
    Although few company law scholars would question the existence of such interdependence across legal areas, the growth of corporate mobility has the potential to increasingly “tear apart” these coherent legal systems, as conflict of law rules rely on different connecting factors across different areas of law.
     This paper aims to examine some of the related problems by analysing the regulatory framework in EU Member States in relation to companies in the “vicinity of insolvency”. In this area, the inter-dependence between, in particular, company and insolvency law is especially pronounced. We show how corporate mobility and conflict of law rules may result in the application of incoherent, incomplete, and inefficient rules to companies making use of their Treaty freedoms, and discuss a number of possible solutions.

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The article explores the relationship between economics and moral philosophy. Starting point of the analysis is the question of whether legal policy should be guided purely by considerations of efficiency (as, for example, Richard Posner argues) or also (or exclusively) by considerations of fairness. The article discusses the two main philosophical movements underlying this question: the Kantian rights-based approach and the utilitarian (consequentialist) view. It concludes that neither approach succeeds in substantiating the claim that certain values (individual liberties vs. the greatest good for the greatest number) can be accorded exclusivity or absolute truth. The views can, therefore, not predetermine the issue of whether efficiency considerations should govern the legislative process and the application of the law. Rather, depending on the circumstances of the case, different interests have to be balanced. These general considerations are then applied to specific problems involving, inter alia, the value of human life, the Learned-Hand formula, and the concept of cheapest cost avoider.

I argue that the view that contract law should do social justice deserves closer and more charitable attention than it has been given in theoretical debates. In particular, I try to show that much of the resistance to that view is due to misunderstandings about (1) the nature of social justice and the interests it protects, (2) the kind of impact that contract law can make on the social structure and the demands that this would involve for individual transacting agents, and (3) the relation between structure-sensitive and structure-insensitive principles for the enforcement of voluntary transactions. Once these misunderstandings are dealt with, taking contract law to aim for social justice seems a no less plausible or attractive a view than most other grand normative theories of contract.

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If we set out to justify our contract law to a moral agent, what kind of story should we be aiming to provide? Or, to sharpen the question, if we cast a critical eye on our contract law, what should we take as its proper moral measure? Should we test contract law for its effectiveness in protecting the moral rights of promisees and enforcing the moral duties of promisors? Should we test it for its ability to make efficient use of the community's resources? Should we test it for its ability to bring about just distributions? Or should we test for its ability to make us more autonomous?
    As these different views claim the same justificatory space, moral agents intent on scrutinizing contract law face a problem of 'perspective' at the start of their enquiry. My aim in this paper is to discuss how general moral theory, and our intuitions about decent moral agency and responsibility in particular, might help moral agents respond to this problem. Taking issue with Seana Shiffrin's recent account, I argue that the appeal to moral agency and responsibility underdetermines the most pressing aspects of that problem.

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My contribution to the Thematic takes issue with the idea that tort law is there to protect rights and that what is typically called ‘distributive justice’ is not a proper normative standard by which tort law ought to be assessed. I suggest that this idea is misleading for two related reasons. First, it misunderstands its target: theories of ‘distributive justice’ are not theories about distribution, they are theories about the basic social structure. Second, social-structural concerns play an important role in determining the general conditions of moral responsibility and are therefore important elements in explaining when the violation of a right makes an agent responsible to the bearer of that right. If this is correct, theorists who exclude considerations of social justice from the normative standards that apply to tort law not only misunderstand the nature of social justice and its demands, they also have a poor account of responsibility for violations of rights.

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The article aims at providing a linguistic and comparative perspective on financial markets governance by investigating the meanings and legal categories underlying the term “securities” in a multilingual society. It first illustrates how the term “securities” is not a straightforward legal concept and requires clear definition – both at the national and transnational levels – to limit regulatory arbitrage and forum shopping phenomena that might endanger investor protection and financial stability. Subsequently, moving from the economic function of securities, the article analyses the legal techniques adopted to define the term “securities” in the United States and in selected European countries, with particular attention to France, Italy and the United Kingdom. The legal and linguistic comparison reveals hidden similarities, converging towards a common a set of shared components related to the concepts of investment, negotiability and value. Notwithstanding this common core, several discrepancies emerge when finally the study focuses on the application of EU securities law and on the legal standardisation efforts carried out by the International Organization of Securities Commissions (IOSCO). The article points out that in a globalised and multilingual society, the meanings attributed to the term “securities” have a crucial impact on the overall soundness of the financial system. Furthermore any attempt to reach a common legal definition of the term must consider the implicit cognitive processes, embedded in language, that are necessary to interpret and apply securities law in different legal contexts.

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This article examines the relationships between governance structures and regulatory approaches. It develops a typology to explain and fine-tune supranational regulatory models for the governance of markets. The article suggests, firstly, a range of regulatory options which are defined according to two dimensions: (a) the degree of centralization of regulation, which includes networks, meta-organizations, and single central authorities; and (b) the degree of invasiveness of regulation, which ranges from sunshine regulation to command and control approaches. The aim is to relate structural alternatives (considered in terms of centralization) to regulatory approaches (considered in terms of invasiveness). The typology here constructed is applied to analyse the governance structure of EU competition law. Secondly, the article focuses on the recent structural changes reshaping the governance of European financial markets. The reform is discussed through the lens of the typology. It appears that, differently from what was observed in the EU competition law model, the newly established ESAs are part of a complex structural development, in which the separation between a highly invasive regulatory approach and a decentralised supervisory structure adds further complexity. The article concludes by noting a set of possible normative implications, suggested by the typology, to ensure a consistent governance model for financial markets regulation and supervision in the EU.

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The growing interconnections between people, markets and networks together with the development of new technologies have increased the frequency and impact of large-scale disasters around the globe. Many of these events, defined as emerging catastrophic (or systemic) risks, have no previous record. At the same time there is a strong probability that their frequency and impact will increase in the future. This paper takes a governance perspective by assuming that policy actions should be designed to cope with ignorance and large-scale losses, being the primary features characterising such emerging catastrophic risks. Precisely, the governance activity should aim both at expanding the industries' capacity to absorb losses and at acquiring more information about frequency and impact of such losses. However, it appears that some solutions may conflict with policy objectives. Direct governmental interventions to compensate victims and stringent antitrust policy goals might block the development of a market for first-party property insurance for emerging systemic risks. In particular, frictions between competition law and precautionary actions (such as the development of an insurance market for unexpected risks) are here examined. The paper, thus, elicits crucial points that require further elaboration by policy-makers and it advances the idea for a workable legal definition for such line of risk that, by embracing the precautionary principle, avoids policy conflicts.

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