To promote a smooth and effective exercise of minority shareholders' rights attached to voting shares in publicly held companies, some regulators and law-makers have recently enacted provisions granting key rights only to minority shareholders who have been continuously holding a stake for a minimum holding period (‘long-term shareholders’).

This article argues that making certain shareholder rights dependent on continuous ownership is a good way of developing corporate governance because it helps management to act in the long-term interest of the company. In other words, fostering long-term shareholders' activism may be a tool for strengthening the long-term best interest of the corporation because it allows directors to manage their enterprises in a manner that emphasises the long term over the short term.

This article also explores whether the new laws and regulations have an impact on the shareholders' equal treatment norm and briefly addresses certain practical issues that these new laws and regulations could raise.

Motivated by recent policy changes across many countries, this paper discusses the rationale for various policies that target financial advice in the market for retail financial services. To set the stage, we review recent findings on how retail financial consumers make use of professional financial advice. Based on our own research, as well as other recent contributions in the economics literature, we then discuss the pros and cons of, in particular, policies that target the disclosure as well as the size and structure of commissions.

After a short historical introduction, this paper argues that corporate mobility remains a real political issue. To clarify matters, it proposes to distinguish between a formal seat transfer, being the choice of a different legal regime, and a de facto seat transfer that would not affect the applicable company law, the host State not being entitled to apply its company law rules. A future directive should be based on this distinction, prescribing the formalities for the former and stating clearly the consequences of the latter, thereby also defining the limits within which the “general good” can be invoked.

Creditor protection through mandatory disclosure since long is a highly debated issue among corporate lawyers. This paper considers whether the legal system should compel corporations to disclose information publicly in order to better protect its creditors. First, the paper elaborates on the various economic rationales of mandatory disclosure advanced by proponents of that approach. Second, it rehearses the theoretical framework of mandatory disclosure. Third, it gives a brief overview of the law on those mandatory disclosure requirements that primarily or at least in part aim at corporate creditor protection. Fourth, it outlines limitations of mandatory disclosure with respect to creditors and debtor companies. Fifth, it briefly surveys several important challenges to mandatory disclosure regulation with respect to materiality, standardization, comprehensibility and timeliness. And finally, this paper deals with various legislative options to enforce creditor-protective mandatory disclosure.

The creation of the European Securities and Markets Authority (ESMA) has marked a major step towards more integrated rulemaking and supervision in the European financial market sector. ESMA's organisation and operations are strongly influenced by the position of this new Authority within the EU institutional framework. The European Court of Justice (in Case C-270/12) confirmed the legitimacy of the legal basis of ESMA itself and of its powers. While ESMA's governance still displays some features of a network among national supervisors, its quasi-regulatory functions and supervisory tasks are constrained by limitations directly or indirectly dictated by the Treaties. This paper highlights how the traditional concepts of independence and accountability towards EU institutions and stakeholders apply to ESMA. ESMA's relationships with national competent authorities, which retain direct supervisory powers with limited exceptions, and the EU institutions, which are competent for the adoption of legislative and non-legislative regulatory measures, are also considered. The analysis shows that tasks conferred on ESMA fall short to match its relatively high accountability, which is aligned with international best practices. The European Commission announced a possible revision of the European Supervisory Authorities (including ESMA) framework for 2014; we therefore suggest some reform proposals that could help streamline regulatory and supervisory functions at EU level, thus allowing ESMA to better exploit its potential while avoiding the risk of excessive centralisation of supervisory powers.

One of the standard requirements of company law is the restriction of distributions to shareholders in order to protect the legitimate interests of the company's creditors. As lawful dividends don't have to be paid back when the company runs into losses at a later stage, we need a measuring rod in order to decide on the availability of funds for distribution. The traditional balance sheet test is running into criticism due to the rigidity of the old rules and the conflicts between the philosophy of IAS/IFRS and the concept of creditor protection. Newly offered devices like the solvency test aim at giving a better view of the business prospects of the company but they suffer from a limited time horizon and a wide range of discretion for directors. This makes them particularly problematic when long-term obligations have to be addressed. In the end, a combination of balance sheet test and solvency test seems to be a reasonable solution.

The idea that the State is, in a very general sense, responsible for the welfare of the people in terms of availability of goods and services, is probably as old as the State itself. How the State should organise the production and distribution of goods and services, however, is subject to time and ideological approach. Adam Smith has shown that the “welfare of the nations” does not presuppose a State that would itself produce and distribute all goods and services. Such a State would reduce rather than enhance the welfare of the people. The balance between economic activities of the State, on the one hand, and of private actors in the market, on the other, has been a matter of theoretical as well as political debate for centuries. The central question concerns the appropriate “economic constitution”. This question is the Leitmotiv of Ernst-JoachimMestmäcker in whose honour I am pleased to submit the following contribution.

The EU Financial Markets Dialogue led by the SEC and the European Commission has achieved some notable successes, particularly with respect to the consolidated supervision of financial conglomerates and the development of a plan to achieve convergence in corporate financial reporting. On both sides of the Atlantic, there is a clear ongoing commitment to the dialogue as a key mechanism for the development of efficient and credible regulatory solutions that guarantee effective investor protection and a high level of business efficiency. This paper reports on a two-day roundtable discussion that took place at Cambridge University in September 2005 to explore ways in which the academic community can contribute to this transatlantic debate. Lively discussion between the policy-makers, regulators, market participants and academics who attended the roundtable yielded a number of thematic concerns, which, the paper suggests, could form the basis of a programme for further work. Finally, the paper announces the establishment of a seminar series, to be based in the United Kingdom, on the Transatlantic Financial Services Regulatory Dialogue and invites contributions.

This paper evaluates the current attempt to develop local ‘compacts’ between local government and the voluntary and community sector, as an example of a relational contracting approach to structuring the evolving relationships between these sectors. It is structured in four parts. The first part charts briefly local government – voluntary sector (LG – VS) relationships in England over the period 1979-2000. It draws examples in particular from experience in the field of area regeneration. The second part introduces the concept of the Voluntary Sector Compact (VSC), and argues that it is central to the approach of the current Labour government to these relationships. It differentiates this approach from that of the previous government, denoted here as the service agency model, and situates it within the meta-paradigm of community governance. The third part explores the implementation of the Compact in England at both the national and local level. The final part draws out key lessons from this for the future of LG – VS relationships in England, situating these within an emerging model of LG – VS relationships.

This paper explores the relationship between disclosure in securities markets and the firm's need for confidentiality. Transparency plays a crucial role for both investor protection and the proper functioning of financial markets. Confidentiality protects the value of information which has been costly produced by the company and preserves private incentives for business and technological innovation. The requirement of too detailed or early disclosure in securities markets, even when aimed at greater investor protection and enhanced market efficiency, would be ultimately detrimental since it would hinder the firm's competitive capacity and weaken the system of private incentives for innovation. EU mandatory disclosure rules protect the firm's interest in confidentiality and allow public companies to refrain from – or delay – the release of the most sensitive data. The scope of these safe harbours, however, is narrow and always at risk of excessive restriction by the powers of regulatory agencies. Furthermore, when information with competitive value is concurrently significant for investors, refraining from disclosure – no matter if allowed or not by the law – hampers the firm's capacity to raise finance and makes the process of resource allocation less efficient. Selective disclosure reconciles investors' demand for information and the firm's need for confidentiality since it allows market prices to react to the information whilst also bypassing the need for public release of the relevant contents. Reconciling the tension, in turn, constitutes a desirable outcome: the securities market will be more efficient and raising finance will become less costly, especially for the most ‘secrecy sensitive’ projects. At the same time, the system of private incentives for innovation will be fully preserved.

The Financial Market Stabilisation Act of 2008 and the Supplementary Financial Market Stabilisation Act of 2009 allow the German state to gain unlimited control over banks of systemic importance. The emergency character of both acts is to be understood against the background of the turbulences of the financial crisis and the short time span available for bank rescue. Prior to the Acts, neither German insolvency law nor company law nor capital market law provided the means to safely restructure troubled banks. The content and evaluation of these state interventions in the banking sector under the pressure of the financial market crisis are relevant not only for Germany, but in a broader international context.

The first mechanism to obtain unlimited control over banks of systemic importance, which has been applied in the takeover of Hypo Real Estate in 2009, relies on company and takeover law instruments such as capital increases and squeeze-outs. These instruments have been modified by the two Financial Market Stabilisation Acts as regards state-initiated takeovers of systemically important banks. However, these modifications and additional measures, e.g., for combating shareholder strike suits, raise doubts on their compatibility with EC law and German constitutional law. Indeed, actions at the German Federal Constitutional Court are already pending.

The second mechanism to obtain unlimited control involves expropriating the shareholders of systemically important banks. This comes with advantages such as transactional certainty and compliance with EC law. However, expropriation touches on the fundamental principles of the German economic order and especially on the constitutionally guaranteed right of ownership. The Rescue Takeover Act, which has been introduced by the Supplementary Financial Market Stabilisation Act, does not breach this constitutional guarantee. However, great care has to be taken in the application of the Act in the individual case.

The dualism between private and public enforcement of investor-related rights and its influence on the development of capital markets has been the subject of much recent commentary. While opinions differ as regards preference for private or public enforcement, scholarly analysis has so far been focused on the principal-agent relationship between investors and issuers, and has tried to depict the most effective enforcement system from a deterrence perspective. In this article we present some data about the Italian experience of enforcement. Rather than of lawsuits against issuers or gatekeepers, investor protection in Italy is mostly the result of proceedings brought by individuals against investment services providers. Does such a model promote the public goals of securities regulation? Is it efficient? By answering these questions, we aim to show how the Italian experience may contribute to the international debate on the enforcement of securities regulation.

The European Commission has recently announced a proposal to relax the ban on financial assistance by providing a gateway procedure that companies could follow in order to sanitise the granting of financial assistance. This article is unimpressed by the proposal and suggests that adopting it is likely to be a largely pointless exercise. Barring truly exceptional circumstances, no company is ever likely to want to take advantage of the proposed gateway procedure because it is time-consuming, costly, runs the risk of transaction-disrupting minority shareholder actions and exposes directors to excessive personal risks.

The corporate governance of investment funds was hardly studied in Italy before the reform of 1998, when the Financial Markets Consolidated Act (TUF) entered into force, amending the rules on management companies (SGRs) and introducing new corporate governance rules for listed companies. Following this reform, it is now clear that the management of SGRs is an extremely delicate and sensitive matter, especially when the legislator assigns a central role in the governance of listed companies to these intermediaries.

From 1998 onwards, commentators have gradually started to pay more attention to this topic, and the quantity and quality of the measures taken by the supervisory authorities and the Professional Association of Fund Managers (Assogestioni) have also increased. Consequently, there has been a very lively and rich debate in recent years.

The present article intends to address this debate and attempts to examine the issue from a double point of view: that of the unit holders (conflict of interests risk) and that of the companies in which the stakes are held (funds as minority shareholders). These aspects may become intertwined in cases in which, for example, a manager buys shares in a company for purposes of control or, at any rate, for purposes other than maximising the profits of the unit holders' investment.

This paper explores the extent to which the fair trade and ethical trading movements can be a way of influencing trading policies and, more specifically, to what extent that influence can be said to be democratic in nature. It is argued that the ethical trading movements have the potential to assist in democratisation and that the debate should concentrate on the extent to which they should be recognised as part of mainstream political thinking and legitimated by affording them a role in political decision making. Adopting a relational approach to democracy, the authors ask whether a failure to integrate social movements as significant trust networks has contributed to a process of de-democratisation in developed states. The paper goes on to reconsider the parameters of democracy theory (i) by reconsidering the central role of the state in democracy to suggest an evolving interpretation of democracy that focuses on processes between civil society and centres of power, and not necessarily processes between civil society and the state, and (ii) by examining the evolution of ‘democracy’ theorisation to question the marginalisation of ‘socio-economic’ democracy in favour of institutional democracy. The authors suggest that the insistence on institutional democracy derives from a nationalist, state-centric conception of democracy and that the socio-economic element of democracy is now determined by global governance as opposed to state governance. On this basis, the paper considers whether the fair trade movement and other ethical trading movements may hold democratic value as a form of mediation between civil society and corporations as today's ‘centres of power’.

Advances in risk management capabilities should make it profitable for major banks to rely on internal credit ratings to calculate Basel II capital requirements (IRB approach). Firms and, more generally, market participants would benefit from the disclosure of these ratings. Banks, however, have no incentives to make their rating data publicly available. This paper proposes a regulatory framework to efficiently solve this incentive issue. It first shows that there are benefits in requiring the disclosure of internal ratings. In particular, it would reduce the cost of capital for both large and small borrowers while facilitating investor diversification.

To be sure, internal rating disclosure would also have its costs. For example, market volatility may increase, whereas lender-borrower relationships may suffer. This paper argues that it is possible to design a regulatory framework under which the benefits of mandatory rating disclosure clearly outweigh its costs. Banks opting for the IRB approach would have to provide their internal ratings to one of several regional entities. The latter would consolidate the data collected and give each borrower a rating equal to the average of the ratings it gets from its lenders. The average rating would be disclosed to the public unless the borrower has opted for non-disclosure. Relying upon multiple regional entities may cause some uncertainty (a given firm may get diverging average ratings), but it would also reduce moral hazard effects and foster competition in the rating industry.

This comment focuses initially on the way in which cross-border mobility plays a central role in shaping creditor protection regimes across the European Union. We conclude with some preliminary observations about the European Insolvency Regulation and the potential impact of forum shopping on creditors and firms.

This study provides data on the attendance of shareholders and voting behaviour in listed Belgian companies between 1994 and 2003. It empirically analyses the relationship between the size of the corporation, the ownership structure and the attendance rate and describes some of the voting issues tackled at the general meeting. Further, the article presents the regulatory evolution of general meetings since 1994 and analyses whether the legal reforms have significantly influenced the attendance behaviour of shareholders.

On average, 57.2 per cent of the shares were represented at the ordinary general meeting. The total stake of identified shareholders and the stake of the concert parties positively influence the attendance. The average number of shareholders attending the meeting is 38. The size of the corporation and the number of concert parties significantly increase the number of attending shareholders.

The number of attending shareholders increased significantly between 1994 and 2003, while the attendance rate did not. The idea and importance of shareholder activism seem to trickle through, but the patterns that determine corporate policy have not changed. Small shareholders have the opportunity to ventilate their opinions, but the controlling shareholder and the board of directors make the decisions.

Eco Swiss leaves a very mixed impression. On the one hand, the factual implications of this case for arbitration might, after all, appear not so dramatic in practice. The ECJ has firmly demonstrated that it follows its precedents associated with a more self-restrained approach towards national procedural autonomy, at least as far as procedural restrictions in arbitration-related areas are concerned. Furthermore, the Court did not travel the more precarious path between the two suggested by the Advocate General. At present, one can only speculate about the repercussions for arbitration which the judgement would have inflicted, had the Court engaged in analysing the arbitrators' duties and powers to apply EC law or the extent of the supervisory functions of national courts in arbitration matters.