European Company and Financial Law Review

Published by De Gruyter

Volume 7 Issue 4

Issue of European Company and Financial Law Review

Contents
Journal Overview

December 20, 2010

Consequences of Uncertainty for Regulation: Law and Economics of the Financial Crisis

Alessio M. Pacces

Page range: 479-511

Abstract

This article analyzes the last financial crisis focussing on the recurrent dynamics of externalities in banking. It shows that two major determinants of the crisis were the uncertainty of a new form of financial intermediation and the failure of regulation to cope with its externalities. Differently from more standard explanations, which are based on opportunism and/or irrationality of financial institutions, this analysis suggests that regulation has not just been insufficient. Regulation has contributed to financial instability too, supporting fragile conventions to handle uncertainty and encouraging regulatory arbitrage through financial innovation. Three implications are derived from this analysis and contrasted with the ongoing reforms of financial regulation in the US and in the EU. First, regulatory arbitrage is better dealt with by protecting banking from disintermediation than by extending prudential regulation to non-banks. Maturity transformation should be defined functionally and reserved to banks. Second, a major danger with ratings is that they support false conventions of safety. To avoid this outcome, the relevance of ratings for regulatory purposes should be reduced and rating agencies should be deterred from rating without verifiable background knowledge. Third, in order to reduce short-termism, regulation of banks' corporate governance should rather question than reinforce managerial accountability to shareholders.

December 20, 2010

Towards a transnational bank restructuring law? – The attempt of the G20 to initiate and monitor regulatory responses to the „too big to fail“ problem –

Peter Sester

Page range: 512-549

Abstract

Consensus on a general (bank) insolvency law at both the G20 and the EU levels remains out of reach. Consequently we should focus on truly systemic cross-border banks. Therefore “systemic” banks have to be identified on economical rather than political grounds. The smooth coordination of different competent national supervisors will not work without clear-cut rules on competencies and a transnational framework “regulation”. This framework should be based on a G20 insolvency standard that creates a global level playing field for cross-border banks groups with systemic impact. Given the overlap between prudential regulation on the one-side and crisis intervention and resolution tools on the other side, it seems appropriate to implement such a standard via a new Basel Accord.

December 20, 2010

The Mandatory Bid and Company Law in Europe

Georgios Psaroudakis

Page range: 550-584

Abstract

The article presents the interplay between the mandatory bid rule and (European or national) company law. This rule is explained with reference to both the protection of investors' expectations as to the shareholding structure of the company and the promotion of the market's allocative efficiency. In accordance with the recent Audiolux judgment of the ECJ, the mandatory bid cannot be regarded as a manifestation of an overarching equal treatment principle in European company law. Some recourse to company law is in any case necessary to discern the limits of the mandatory bid. Indeed, the mandatory bid rule puts a heavy burden on collective shareholder action, and thus tips the balance of power between shareholders and management in favour of the latter. This is to be taken into account when determining the scope of application of the rule to joint activities of shareholders. This is also a matter of the internal structure of the company, which is only regulated in national, rather than European, company law. Thus, national company law becomes relevant in the interpretation of the mandatory bid rule in each jurisdiction, while the effet utile of the Takeover Directive must be preserved.

About this journal

Please note the press release of the editors of May 27, 2021 in Supplementary Materials

In legislation and in case law, European Union law has become a steadily more dominant factor in determining national company laws as well as financial markets and banking law of the member states. However, national law also continues to play a major role in several fields. Such developments are sometimes of high academic interest in other European jurisdictions.

However, the discussion of these European and national developments is still to a great extent restricted to the national communities of experts and is done in their national language. Therefore, there is still a strong publication and language barrier in Europe. ECFR intends to change this situation by being one of the leading European academic platforms for debate across Europe on drafting and application of European and comparative company and financial markets law. It aims at universities, lawmakers on both the European and national levels, courts, lawyers, banks and other financial service institutions, in house counsel, accountants and notaries who draft or work with European company and financial law.

The journal focuses on all areas of European and national company law and of the financing of companies and business entities. This includes the law of capital markets as well as the law of accounting and auditing and company law-related issues of insolvency law. Banking law is also treated through specific articles as part of financial markets law. Finally, ECFR serves as a platform for the discussion of theoretical questions such as economic analysis of company law. It consists of articles and case notes on both decisions of the European courts as well as of national courts insofar as they are of interest from a comparative perspective. This does not, of course, exclude contributions from other parts of the world which may also be of interest for European readers.

Based on an initiative by the editors of Zeitschrift für Unternehmens- und Gesellschaftsrecht (ZGR), ECFR soon gained the support of many sister journals all of them leading company and financial markets law journals in their respective jurisdictions. Thus, ECFR as a European platform for academic exchange is currently edited by the editors of ZGR in co-operation with Ondernemingsrecht, Revista de Derecho de Sociedades, Revue des sociétés, Rivista delle società, and the Revue pratique des sociétés - Tijdschrift voor rechtspersoon en vennootschap.

Annual conference

ECFR holds an annual conference on recent topics of European company and financial law. The annual conference 2019 took place in Cracow (Poland) on 27 September 2019. Academic presentations, amongst other topics, dealt with the European directive on preventive restructuring, with the implications of Brexit and with recent national company law reforms in Belgium and Poland. For further inquiries please contact the editorial board (ecfr@jura.uni-wuerzburg.de).