In this paper, we use case studies to document how dominant shareholders have circumvented mandatory bid rules to appropriate wealth from minority shareholders. Dominant shareholders are numerous in Continental Europe. Creative compliance with mandatory bid rules reveals the failure of boards and regulators to protect minority shareholders and the difficulties of legislating in this area. We propose enhanced means for protecting their interests.

The financial crisis has demonstrated the importance of strengthening liquidity risk management and supervision. Such strengthening must take account of the system-wide dimension of risks: the likelihood that a number of firms will face a common stress at the same time, and the impact of their response to that stress on other firms and the wider system. Five high-level objectives are presented to guide the future development and design of a framework to contain system-wide liquidity risks.

The ECJ's Cartesio judgment should be understood as overriding the Daily Mail judgment of 1988. Under Daily Mail, Community rules governing freedom of establishment were waved away as not applicable, while in Cartesio they are merely not precluding national legislation controlling emigration. According to Cartesio, restrictions on transferring the centre of administration generally pass the test of compatibility. Nonetheless, in the authors' view, there should be no justification for sanctions of annulment or immediate dissolution of a company which has attempted to move its centre of administration to another Member State. In Cartesio, the ECJ proclaimed the right of companies to emigrate for the purpose of conversion into a company form of the host state. By analogy with SEVIC Systems, it seems that the host state may not refuse to give the immigré company permission to convert if similar conversion is open for local legal forms, unless justified by overriding requirements in the public interest. To sum up, the ECJ provides a complex method to determine and protect the freedom of companies to emigrate. Still, this method seems preferable to the other option: forcing Member States to tolerate emigration without regard to their legal tradition and the ensuing difficulties.

The legal framework of telecommunications regulation is about to change. This is due to the reform package which the Commission submitted in November 2007. The European Parliament and the Council of Ministers are still to approve. There is ongoing political debate. Unfortunately, it does not cover the crucial issue: is the sector-specific ex ante telecommunications regulation still justified after ten years of liberalisation and a partly dramatic evolution towards competition? The author replies in the negative from a historical, a regulatory policy and an analytical perspective. De lege lata, the three-criteria test, if applied correctly, induces this outcome. De lege ferenda, a sunset rule, if need be a qualified one, would be useful.

A large number of new rules which rely on disclosure requirements have been introduced in EU corporate governance in recent years, to the extent that disclosure requirements seem to be the predominant if not the only regulatory method used. This article takes a critical look at this development with the aim of assessing whether too much reliance has been put on disclosure as a regulatory instrument in this area. The arguments in favour of disclosure requirements are studied, as are those situations where disclosure is most likely to prove an ineffective or insufficient tool. Furthermore, it is examined how the current disclosure regimes in EU corporate governance can be improved to ensure that they will be more effective.

In the Cartesio decision of December 2008, the European Court of Justice has legitimated the real seat theory for those Member States that require the presence of the administrative seat and the statutory seat in their territories as a condition for a company's valid formation. The Court, by an obiter dictum, has also put forward the idea that the transnational conversion is included in the freedom of establishment of Articles 43 and 48 as a form of international mobility. This article analyses the possible consequences of the Court's decision for regulatory competition in company law in Europe, taking into consideration both aspects.

Good corporate governance of banks is of a vital concern to banks themselves as well as to the banking supervisors. During the past decade, listed banks and even non-listed institutions worldwide started to publicly emphasise that good corporate governance is of vital concern for the company, and even to adopt individualised corporate governance codices. In turn, the Basel Committee on Banking Supervision already published two editions of a guideline entitled ‘Enhancing corporate governance for banking organisations’ which reflects the supervisors' taking on the issue to perfection. Last but not least, two years into the financial crisis, the issue of banks' good corporate governance has started to attract pronounced interest, with the OECD taking a leading role. Against this backdrop, the article, on the one hand, discusses the particularities of banks' corporate governance – due in large part to banking regulation and to deposit insurance – in a principal-agent framework, and, on the other hand, presents the supervisors' financial stability perspective taking the Basel Committee's guidance as a starting point. The article concludes with reflections on some tentative lessons from the current crisis for (banks') good corporate governance: banks' corporate governance differs from that of a generic firm. Deposit insurance and prudential regulation, while aimed at compensating for deficits in the monitoring and control of banks, both act to exacerbate the particular problems that are inherent in banks' corporate governance. From this perspective, banking regulation and banks' corporate governance interact as the driving forces of a vicious circle that produces ever more regulation. Hence, one may doubt whether banks' corporate governance should map the way forward for corporate governance in general. In particular, this holds true for the way forward to regulating bankers' pay.

The Societas Europaea (SE) has developed unexpected popularity in Germany (cf., the empirical study in Eidenmüller, Engert and Hornuf, Die Aktiengesellschaft 2008, 721 et seq.). Since the incorporation of Allianz SE, more publicly listed enterprises have taken this legal form (e.g., BASF SE, Fresenius SE, Porsche SE). The SE has become attractive to mid-sized companies in Germany as well. Legal advisers and legal scholars in Germany consequently have had a breadth of experience with this new supranational company type. This experience forms the basis of the following recommendations to further improve the legal framework and increase the attractiveness of the SE for large and mid-sized companies in Germany and Europe.

Regulators around the world, including the European Commission, are becoming increasingly interested in behavioural finance as a toolbox for better securities regulation. When securities laws are designed to prevent or minimise the effect of systematic investor bias, they may violate one of the most fundamental principles of traditional securities regulation, the ‘inalienable right of everyone to make a fool of him (and her)self’ (Louis Loss). The paper discusses the potential and boundaries of an alternative concept of investor protection, based on the assumption that investors systematically fall prey to certain fallacies. Unlike the philosophy underlying traditional securities regulation, this concept's impetus is not the danger of market failure caused by asymmetric information but by bounded rationality. Its objective is not the informed but the prudent investment decision. Its measures are rules of an ‘asymmetric’ or ‘libertarian’ paternalism which lead those who need help to better investment decisions without limiting the freedom of those who do not need or want any assistance. The paper exemplifies this concept by analysing how the Market in Financial Instruments Directive's conduct-of-business regulation could be re-shaped to protect overconfident investors who suffer from biased self-attribution and confirmation bias from the dangers of excessive trading.

The sale of retail financial products, such as investment funds but also mortgage products, is frequently combined with the provision of advice, which opens up the possibility of unsuitable advice and misselling. The article argues that despite recent legal changes in Europe, such as MiFID, there is still much scope for the improvement of both legal norms and supervisory activity. To obtain a logically consistent and workable framework, consumer protection, both generally and applied to the field of retail finance, must be put on a sound economic basis.

This article discusses the limitations of the orthodox economic theory of the firm as a nexus of contracts. Various experimental studies have shown that the aggregation of individuals in groups changes behaviour and preferences systematically. This perspective has been formalised by models of interdependent preferences. Based on a prominent approach of interdependent preferences, intention-based preferences, two types of labour contracts, incentive contracts and bonus contracts are analysed. Results are compared with the predictions of the orthodox economic theory.

Niklas Luhmann's sociological systems theory sees in an organisation neither a group of acting individuals nor a single corporative actor, but instead a social system. For Luhmann, a social system is a closed network of communication processes that recursively engender each other. This article introduces the reader to this particular way of understanding organisations. For this purpose, we will have to look at certain individual issues within Luhmann's theory. We will start with a few explanatory notes on Luhmann's theory of communication. Subsequently, key terms from the field of systems theory such as ‘system’, ‘medium/form’, ‘autopoiesis’ and ‘structure’ will be introduced. With the help of these notions, we will be able to clarify what Luhmann understands by a social system in general. For Luhmann, organisations are social systems of a particular type. In the last two sections, the specific characteristics of organisations as subsystems of the society will be outlined.

This article describes compensation contracts in private equity. It shows that they may not align interest between the investors and fund managers as much as commonly thought. Certain clauses appear as potentially hazardous for investors and others exacerbate conflicts of interest.