Business Organizations Law Commons^™

Standard Of Review Under The Sps Agreement After Ec-Hormones Ii, Michael Ming Du

Michael Ming Du

A recurring and delicate issue in the GATT/WTO dispute settlement processes is whether, and to what extent, WTO Panels and the Appellate Body (AB) should defer to national government decisions. With regard to disputes under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), WTO Panels adopted, and the AB endorsed, a standard of review close to de novo review. As a result, the WTO jurisprudence in SPS disputes has been subject to sharp criticisms over the years. In the recent EC-Hormones II case, the AB has deviated from its established case law and articulated a new …

Reducing Product Standards Heterogeneity Through International Standards In The Wto: How Far Across The River?, Michael Ming Du

Michael Ming Du

Heterogeneity in product standards across World Trade Organization (WTO) members adversely affects the international flow of goods and its reduction will increase global economic welfare if legitimate regulatory objectives are not violated. The Uruguay Round has seen the incorporation of international standards in both the Agreement on Technical Barriers to Trade (TBT) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) Agreement as a harmonization device. Despite many benefits that international standards may offer, WTO’s attachment to international standards has been subject to various criticisms. This paper intends to offer a detailed analysis of the role of …

Power And Purpose In The "Anglo-American" Corporation, Christopher M. Bruner

Scholarly Articles

The article discusses the impact of a shareholder-centric and market-oriented approach to corporate governance among public business firms in the U.S. and Great Britain. It mentions that both countries have more common similarities in terms of corporate governance systems and business cultures. It affirms that despite such similarities, both countries' corporate governance system differs on how they relate to external regulations that can affect their relationships among stakeholders.

Free Enterprise And The Rule Of Law: The Political Economy Of Executive Discretion (Efficiency Implications Of Regulatory Enforcement Strategies), Kevin S. Marshall

William & Mary Business Law Review

Economic theory teaches that if all of the operational conditions of the perfectly competitive model hold, then certain efficiencies may be achieved to the favor of a wealth-seeking society, ceteris paribus (assuming all other things remain equal and/or the absence of all other disturbing influences). This Article observes the asymmetrical enforcement of relevant governing laws, regulations and rules eliminates any possibility that all other influences with respect to the performance values of the perfectly competitive model have been neutralized. Under such regulatory enforcement conditions, there can be no wealth-creation expectations.

Confident Uncertainty, Excessive Compensation & The Obama Plan, Michael B. Dorff

Indiana Law Journal

Public outrage at the enormous bonuses TARP recipients paid to senior executives recently prompted the Obama administration to impose sweeping new curbs on executive compensation. Shortly thereafter, Senator Dodd added restrictions on executive bonuses to the stimulus bill President Obama subsequently signed. These are understandable political reactions, but will they achieve the twin goals of reducing executive compensation in recipients of federal assistance while spurring better corporate performance? To examine this question, I analyze excessive compensation as the product of "confident uncertainty, "the tendency of even the most sophisticated actors to place unwarranted confidence in their ability to predict the …

Enabling Investments In Environmental Sustainability, Heather Hughes

Indiana Law Journal

No abstract provided.

Governing And Financing Blended Enterprise, Dana Brakman Reiser

Chicago-Kent Law Review

The image of nonprofit and for-profit as dual and exclusive categories is misleadingly simple. This blurring of the boundary between for-profit and nonprofit has gone on for years and appears only to be gaining steam. Yet, traditionally, the law has put to organizations a choice of either the nonprofit or for-profit form of organization. In the first decade of this century, organizational law is beginning to catch up with the boundary-blurring trend. In the United States and abroad, legislatures are creating new forms for blended enterprise, including several U.S. states' low-profit limited liability company (the "L3C") and the community interest …

The Validity Of Deal Protection Devices In Negotiatiated Acquisition Or Merger Transactions Under Anglo-American Law, Wai Yee Wan

Research Collection Yong Pung How School Of Law

This paper analyses deal protection devices, specifically termination fees and lockup agreements, that are entered into by publicly listed target companies in favour of the preferred bidders, under Anglo-American law. US (specifically Delaware) and UK law and regulation differ markedly in the regulation of these devices. Delaware law generally gives more leeway for the target board to enter into deal protection devices. The UK regime is much more shareholder-centric and severely restricts most types of deal protections. This paper explains the differences and argues that the UK regime is the result of the strong influence of institutional share ownership. In …

Corporate Governance In The Courtroom: An Empirical Analysis, Jessica Erickson

William & Mary Law Review

Conventional wisdom is that shareholder derivative suits are dead. Yet this death knell is decidedly premature. The current conception of shareholder derivative suits is based on an empirical record limited to suits filed in Delaware or on behalf of Delaware corporations, leaving suits outside this sphere in the shadows of corporate law scholarship. This Article aims to fill this gap by presenting the first empirical examination of shareholder derivative suits in the federal courts. Using an original, hand-collected data set, my study reveals that shareholder derivative suits are far from dead. Shareholders file more shareholder derivative suits than securities class …

Mtic (Vat Fraud) In Voip - Market Size $3.3b, Richard Thompson Ainsworth

Faculty Scholarship

In the beginning, the VAT fraud known as missing trader intra-community (MTIC) fraud appeared to be a UK problem concentrated in the cell phone and computer chip markets. MTIC has mutated (to other commodities) and migrated (to other Member States). This paper describes how this fraud operates in the VoIP market, and how in this mutation it is no longer confined to the EU, but can infiltrate any VAT/GST anywhere.

Canada, Botswana, Japan, Iceland and Jamaica (to mention a few jurisdictions) have consumption taxes that are just as vulnerable as is the EU VAT to VoIP missing trader fraud. It …

Corporate Control And The Need For Meaningful Board Accountability, Michelle Harner

Michelle M. Harner

Corporations are vulnerable to the greed, self-dealing and conflicts of those in control of the corporation. Courts historically have regulated this potential abuse by designating the board of directors and senior management as fiduciaries. In some instances, however, shareholders, creditors or others outside of corporate management may influence corporate decisions and, in the process, extract corporate value. Courts generally address this type of corporate damage in one of two ways: they designate controlling shareholders as corporate fiduciaries and they characterize creditors, customers and others as contract parties with no fiduciary duties. The traditional roles of corporate shareholders and creditors may …

Ignoring The Writing On The Wall: The Role Of Enterprise Risk Management In The Economic Crisis, Michelle M. Harner

Michelle M. Harner

Enterprise risk management (ERM) targets overall corporate strategy and, when implemented correctly, can manage a corporation’s risk appetite and exposure. When ignored or underutilized, it can contribute to a corporation’s demise. In fact, many commentators point to ERM failures as contributing to the severity of the 2008 economic crisis. This essay examines the different approaches to ERM adopted by financial institutions affected by the 2008 economic crisis and how ERM contributed to the survival or failure of those firms. It then considers ERM in the broader context of corporate governance generally. This discussion reflects on ERM techniques for corporate boards …

The Search For An Unbiased Fiduciary In Corporate Reorganizations, Michelle M. Harner

Michelle M. Harner

When a company experiences financial distress, a control contest often follows. Management fights to remain in control of the company, and shareholders, creditors and others try to influence management’s exercise of that control—or wrest it away. This is not a new phenomenon. The degree of influence now exerted by corporate stakeholders in the distressed context, however, is strikingly different than in the past. Recent headlines highlight that stakeholder control issues are at the forefront of financially-distressed situations large and small. The U.S. government, as creditor, dictated the terms of Chrysler’s and General Motors’ bankruptcies. It also demanded and received preferred …

Virtual Intermediaries: Consumption Tax Problems In Japan, Europe, And The United States - The Case Of The Virtual Travel Agent, Richard Thompson Ainsworth

Faculty Scholarship

Marketplace technology is (inadvertently) chipping away at the effectiveness of consumption taxes – the Japanese Consumption Tax (CT), the European value added tax (VAT), and the American sales tax (ST) are all affected. Frequently a technology-patch or a law change can repair the tax-damage, but sometimes even though a patch or a change is known the design of the levy (or the politics behind the design) impedes application. This paper assesses these consumption taxes by considering the impact that virtual travel agents have had on revenue yields. The paper draws specific conclusions for the Japanese CT, because this consumption tax …

Analysis Of The Legality Of The Iraq War 2003, Nikola S. Georgiev

Nikola S Georgiev

Analysis of the legality of the Iraq War 2003

Bond Limited Liability, Robert J. Rhee

UF Law Faculty Publications

Limited liability is considered a “birthright” of corporations. The concept is entrenched in legal theory, and it is a fixed reality of the political economy. But it remains controversial. Scholarly debate has been engaged in absolute terms of defending the rule or advocating its abrogation. Though compelling, these polar positions, often expressed in abstract arguments, are associated with disquieting effects. Without limited liability, efficiency may be severely compromised. With it, involuntary tort creditors bear some of the cost of an enterprise. Most other proposals for reforming limited liability have been incremental, such as modifying veil piercing. However, neither absolutism nor …

Assessing The Chrysler Bankruptcy, Mark J. Roe, David Skeel

Michigan Law Review

Chrysler entered and exited bankruptcy in forty-two days, making it one of the fastest major industrial bankruptcies in memory. It entered as a company widely thought to be ripe for liquidation if left on its own, obtained massive funding from the United States Treasury, and exited via a pseudo-sale of its main assets to a new government-funded entity. The unevenness of the compensation to prior creditors raised concerns in capital markets, which we evaluate here. We conclude that the Chrysler bankruptcy cannot be understood as complying with good bankruptcy practice, that it resurrected discredited practices long thought interred in the …

Teaching Specialized Legal Research: Business Associations, Kris Helge, Terri Lynn Helge

Faculty Scholarship

Business associations are a complex substantive topic that can be included in an advanced legal research course that teaches students sophisticated research, writing, and citation skills. This article presents the basic substantive law regarding business associations necessary to deliver instruction about advanced legal research, writing, and citation. This article also offers a model syllabus with suggested sources and assignments for students. These research assignments require students to perform tasks such as citing primary and secondary sources, learning advanced research skills using loose-leaf materials, assimilating information from multiple sources into cogent narratives, locating information using various electronic resources, digests, and other …

Bonding Limited Liability, Robert J. Rhee

William & Mary Law Review

Limited liability is considered a “birthright” of corporations. The concept is entrenched in legal theory, and it is a fixed reality of the political economy. But it remains controversial. Scholarly debate has been engaged in absolute terms of defending the rule or advocating its abrogation. Though compelling, these polar positions, often expressed in abstract arguments, are associated with disquieting effects. Without limited liability, efficiency may be severely compromised. With it, involuntary tort creditors bear some of the cost of an enterprise. Most other proposals for reforming limited liability have been incremental, such as modifying veil-piercing. However, neither absolutism nor marginalism …

Zappers - Retail Vat Fraud, Richard Thompson Ainsworth

Faculty Scholarship

Zappers skim cash sales at retail. Zappers are add-on programs used by merchants with electronic cash registers (ECRs) or point-of-sale (POS) systems. Zappers are smart and selective. They do not skim all sales, and they never skim credit card transactions.

Although they are present in every jurisdiction, Zappers appear to be most widely used in developed economies that combine high levels of cash sales with high rates of consumption tax. Sweden, for example, has a cash-intensive economy, one of the world’s highest VAT rates (25%), and also reports that 70% of the ECRs in the country are either “… constructed …