'Is the Board Neutrality Principle Rule Trivial? Amnesia about Corporate Law in
European Takeover Regulation' (with D.Kershaw and M. Solinas) European Business Law Review
(2011) 22(5), pp.559-622; working paper published as
WPS03-2011 in LSE Law, Society and Economy Working Paper Series (May
2011).
Whether the European Union's Takeover Directive should have adopted a mandatory neutrality rule has been the subject of much debate. As the European Commission commences its review of the Directive this debate is being reignited. A view is crystallising that the success and failure of the Directive can, in large part, be measured by the number of Member States that have opted-in, or out of the neutrality principle, or have opted-in subject to the reciprocity option. The contestability of European corporations is viewed through this lens as a function of the extent to which EU Member States have adopted an unqualified neutrality rule. This article takes issue with this viewpoint. It argues that the pre-Directive debate and the post-Directive assessment have failed to consider the core lesson of takeover defences in the United States, namely that the construction of defences and their potency are a function of basic corporate law rules. If corporate law rules do not enable the construction of takeover defences, or undermine the extent to which they can be potently deployed, then the adoption or rejection of the neutrality principle in Member States is of trivial significance. This article explores the triviality hypothesis in three central EU jurisdictions: the United Kingdom, Germany, and Italy. It concludes that, although there is variable scope to construct and deploy takeover defences in these jurisdictions, the triviality thesis is well founded.
full text of working paper available via SSRN
'In search of rationality in company law' Modern Law Review,
73 (6). pp. 1048-1075 (2010)
'The Mysteries of Right of Establishment after Cartesio'
(with Michael Schillig) International & Comparative Law Quarterly 2010,
59(2), 303-323
The judgement of the European Court of Justice in Cartesio was eagerly awaited
as a clarification of the questions concerning the scope of the right of
establishment (Articles 43, 48 EC) that remained after previous landmark
decisions such as Centros, Überseering, and Inspire Art. The article analyses
the implications of Cartesio in light of different scenarios of transfer of the
registered and the real seat within the European Union. It assesses the
interrelations of right of establishment and private international law rules for
the determination of the law applicable to companies and concludes that the case
law of the European Court of Justice after Cartesio, rather than providing for a
coherent system of European company law, leads to arbitrary distinctions and
significantly impedes the free movement of companies.
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'Underwriters, Auditors, and Other Usual Suspects: Elements of
Third Party Enforcement in US and European Securities Law' European Company
and Financial Law Review 2009, 6(4), 476-515.
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 as a result of new incentive structures in the financial
markets. They see as the solution to the regulatory lacunae the utilisation of
financial intermediaries 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. The article analyses the most important liability provisions of US and
European securities regulation in light of the gatekeeper theory. It identifies
deficiencies in the current regulatory regime, suggests that some aspects of US
securities regulation may serve as an example for a development of the European
system, and highlights the dangers that a lack of legislative attention and a
reorientation of the judiciary towards general principles of tort law create. It
concludes by advancing a tentative explanation of certain trends of convergence
between US and European regulatory mechanisms that can be observed.
The market for securities and its regulation through
gatekeepers. Temple International & Comparative Law Journal 23 (2). pp.
317-377
This article constitutes an extended version of ‘Underwriters, Auditors, and
Other Usual Suspects’ (see above). It includes a more detailed discussion of US
law, an analysis of competitiveness, transparency and informational asymmetries
in the market for financial intermediaries, and an examination of risk shifting
as a tool to allocate liability risks more efficiently.
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'General Disclosure Requirements – European Framework',
'Quoted Companies – European Framework', 'Europe and Takeovers', chapters 32, 38
and 44 of Gore-Browne on Companies (Bristol: Jordans 2009/10)
An analysis of the EC Directives with
a bearing on corporate reporting (Fourth and Seventh Company Law Directives,
Statutory Audits Directive, IAS Regulation), general disclosure requirements
(First, Second, and Eleventh Company Law Directives), primary and secondary
market disclosure (Prospectus Directive, Transparency Directive, Market Abuse
Directive, MiFID), and cross-border restructuring (Takeovers Directive,
Cross-Border Mergers Directive).
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'Recht, Effizienz und Calabresis Trugschluss' [Law,
Efficiency, and Calabresi’s Fallacy] in S. Grundmann et al. (eds.)
Unternehmensrecht zu Beginn des 21. Jahrhunderts: Liber Amicorum in honour of
Eberhard Schwark, München: C.H. Beck 2009, pp. 3-20
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.
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'Accounting Law of the German Closely Held Corporation (GmbH)'
in H. Heybrock (ed.) Praxiskommentar zum GmbH-Recht, Münster: ZAP-Verlag
2008, pp. 1032-1130
Carsten Gerner-Beuerle
The
book examines the liability of underwriting banks for misstatements in the
registration statement or public offering prospectus according to US-American
and European (in particular German) law. This issue has come to the fore in the
wake of the recent accounting scandals in the US and Europe. The issuers will
often be insolvent and investors will seek to claim damages from the investment
banks that have underwritten the offering. The book discusses the factual
background of the public offering process (underwriting techniques, allotment of
securities, clearing, agreements among underwriters, between underwriters and
issuer etc.), the extensive US case-law on ss. 11 and 12 of the Securities Act
of 1933 and s. 10(b) of the Securities Exchange Act of 1934 in conjunction with
Exchange Act Rule 10b-5, and the corresponding legislative measures under
European and German law. Additional issues are the legal nature of the
underwriting syndicate (prevailing opinion in Germany qualifies it as a general
partnership), relevant conflict of law rules, and the economic implications of
different systems of underwriter liability.