Organizational choices of banks and the effective supervision of transnational financial institutions
- This paper outlines relatively easy to implement reforms for the supervision of
transnational banking-groups in the E.U. that should not be primarily based on legal form
but on the actual risk structures of the pertinent financial institutions. The proposal also
aims at paying close attention to the economics of public administration and international
relations in allocating competences among national and supranational supervisory bodies.
Before detailing the own proposition, this paper looks into the relationship between
sovereign debt and banking crises that drive regulatory reactions to the financial turmoil in
the Euro area. These initiatives inter alia affirm effective prudential supervision as a pivotal
element of crisis prevention.
In order to arrive at a more informed idea, which determinants apart from a perceived
appetite for regulatory arbitrage drive banks’ organizational choices, this paper scrutinizes
the merits of either a branch or subsidiary structure for the cross-border business of
financial institutions. In doing so, it also considers the policy-makers perspective. The analysis
shows that no one size fits all organizational structure is available and concludes that
banks’ choices should generally not be second-guessed, particularly because they are subject
to (some) market discipline.
The analysis proceeds with describing and evaluating how competences in prudential
supervision are currently allocated among national and supranational supervisory authorities.
In order to assess the findings the appraisal adopts insights form the economics of public
administration and international relations. It argues that the supervisory architecture has to
be more aligned with bureaucrats’ incentives and that inefficient requirements to cooperate
and share information should be reduced. Contrary to a widespread perception, shifting responsibility
to a supranational authority cannot solve all the problems identified.
Resting on these foundations, the last part of this paper finally sketches an alternative
solution that dwells on far-reaching mutual recognition of national supervisory regimes
and allocates competences in line with supervisors’ incentives and the risk inherent in crossborder
Power and law in enlightened absolutism : Carl Gottlieb Svarez' theoretical and practical approach
- The term Enlightened Absolutism reflects a certain tension between its two components. This tension is in a way a continuation of the dichotomy between power on one hand and law on the other. The present paper shall provide an analysis of these two concepts from the perspective of Carl Gottlieb Svarez, who, in his position as a high-ranking Prussian civil servant and legal reformist, has had unparalleled influence on the legislative history of the
Prussian states towards the end of the 18th century. Working side-by-side with Johann Heinrich Casimir von Carmer, who held the post of Prussian minister of justice from 1779 to 1798, Svarez was able to make use of his talent for reforming and legislating. From 1780 to 1794 he was primarily responsible for the elaboration of the codification of the Prussian private law – the “Allgemeines Landrecht für die Preußischen Staaten” in 1794. In the present paper, Svarez’ approach to the relation between law and power shall be analysed on two different levels. Firstly, on a theoretical level, the reformist’s thoughts and reflections as laid down in his numerous works, papers and memorandums, shall be discussed. Secondly, on a practical level, the question of the extent to which he implemented his ideas in Prussian legal reality shall be explored.
When Soering Went to Iraq…: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights’ Al-Saadoon Case
- In its admissibility decision in the Al-Saadoon case the ECtHR held that the United Kingdom had jurisdiction over the applicants, who had been arrested by British forces and kept in a British-run military prison in Iraq. Just before the respective mandate of the Security Council expired on 31 December 2008, the applicants were transferred to Iraqi custody at Iraqi request and thereby exposed to the risk of an unfair trial followed by capital punishment. In this respect, the case resembles the Soering case, although the applicants were, unlike Soering, not on British territory but on occupied Iraqi soil before they were handed over. This aspect raises the question of Iraqi sovereignty as a norm competing with the UK's human rights obligations. The authors trace back the ECtHR's case law concerning the extraterritorial application of the Convention and analyse the UK judgments and the ECtHR's admissibility decision in the Al-Saadoon affair from this angle. Furthermore they consider the doctrinal consequences of the ECHR's extraterritorial effect in cases like Soering and Al-Saadoon, where contracting parties violate guarantees of the Convention by exposing a person within their jurisdiction to a risk of a treatment contrary to these guarantees by a third state. Finally, they test the argument brought forward by the UK that not transferring the applicants would have violated Iraqi sovereignty and establish patterns how the ECtHR and the UK Courts did cope in the past with international law norms potentially competing with the Convention.
Intellectual property: the global spread of a legal concept
- Although intellectual property law is a distinctively Western, modern, and relatively young body of law, it has spread all over the world, now encompassing all but a very few outsiders such as Afghanistan, Somalia, and Vanuatu. This article presents three legal transfers that contributed to this development: first, from real property in land and movables to intellectual property in the late 18th century in Western Europe; second, from Western Europe, in particular from the United Kingdom and France to the rest of the world during the colonial era in the 19th and early 20th century; third, from the protection of new knowledge to the protection of traditional knowledge, held by indigenous communities in developing countries, on 5 August 1963. This story illuminates how legal transfers in a broad sense – including, but not limited to legal transplants - drive the evolution of law.
Approaching comparative company law
David C. Donald
- This paper identifies some common errors that occur in comparative law, offers some guidelines to help avoid such errors, and provides a framework for entering into studies of the company laws of three major jurisdictions. The first section illustrates why a conscious approach to comparative company law is useful. Part I discusses some of the problems that can arise in comparative law and offers a few points of caution that can be useful for practical, theoretical and legislative comparative law. Part II discusses some relatively famous examples of comparative analysis gone astray in order to demonstrate the utility of heeding the outlined points of caution. The second section offers a framework for approaching comparative company law. Part III provides an example of using functional definition to demarcate the topic "company law", offering an "effects" test to determine whether a given provision of law should be considered as functionally part of the rules that govern the core characteristics of companies. It does this by presenting the relevant company law statutes and related topical laws of Germany, the United Kingdom and the United States, using Delaware as a proxy for the 50 states. On the basis of this definition, Part IV analyzes the system of legal functions that comprises "company law" in the United States and the European Union. It selects as the predominant factor for consideration the jurisdictions, sub-jurisdictions and rule-making entities that have legislative or rule-making competence in the relevant territorial unit, analyzes the extent of their power, presents the type of law (rules) they enact (issue), and discusses the concrete manner in which the laws and rules of the jurisdictions and sub-jurisdictions can legally interact. Part V looks at the way these jurisdictions do interact on the temporal axis of history, that is, their actual influence on each other, which in the relevant jurisdictions currently takes the form of regulatory competition and legislative harmonization. The method of the approach outlined in this paper borrows much from system theory. The analysis attempts to be detailed without losing track of the overall jurisdictional framework in the countries studied.
The European Model Company Law Act project
Paul Krüger Andersen
- On 27 and 28 September 2007, a commission formed on the initiative of the authors held its first meeting in Aarhus, Denmark to deliberate on its goal of drafting a "European Model Company Law Act" (EMCLA). This project, outlined in the following pages, aims neither to force a mandatory harmonization of national company law nor to create a further, European corporate form. The goal is rather to draft model rules for a corporation that national legislatures would be free to adopt in whole or in part. Thus, the project is thought as an alternative and supplement to the existing EU instruments for the convergence of company law. The present EU instruments, their prerequisites and limits will be discussed in more detail in Part II, below. Part III will examine the US experience with such "model acts" in the area of company law. Part IV will then conclude by discussing several topics concerning the content of an EMCLA, introducing the members of the EMCLA Working Group, and explaining the Group's preliminary working plan.
The rise and effects of the indirect holding system : how corporate America ceded its shareholders to intermediaries
David C. Donald
The law of corporate finance in Europe : an essay
European company law beyond the 2003 action plan
- This paper will sketch out some of the developments in European company law as seen from the current moment, which might be referred to as post- 2003 Action Plan, and from my purely personal viewpoint. I will thus restrict myself to presenting the current and expected legislative projects of the EU, with particular focus on the plans and activities of the Commission, and for the moment bracket out both a number of important and interesting decisions of the European Court of Justice and the debates among European legal scholars.
Staging a Supplement : Judge Adam, Advocate “Liebling” and William, the Detective
- Legal practice is based on something that is not only an integral part of it and complements it, but also puts it into question generally. The compulsion to argue and reach decisions in a legal trial clarifies simultaneously that all forms of decision are inapproprate, unreasonable, and can be recreated in an entirely new manner [to suit the needs of the trial]. This is the legalistic supplement in the spirit of Jacques Derrida. The legal truth is supplemented by other forms of media such as drama, film and literature, which are able to stage scenes that cannot be experienced in a real life legal world, but – as no legal official would deny – are an integral part of the trial and verdict procedure.