Commercial Law Commons^™

Business Trusts In China: A Reality Check, Lusina Ho

University of Cincinnati Law Review

No abstract provided.

The Rise Of Business Trusts In Sustainable Neo-Innovative Economies, Lee-Ford Tritt, Ryan Scott Teschner

University of Cincinnati Law Review

No abstract provided.

The Oregon Stewardship Trust: A New Type Of Purpose Trust That Enables Steward-Ownership Of A Business, Susan N. Gary

University of Cincinnati Law Review

No abstract provided.

The New Fiduciaries, Natalya Shnitser

University of Cincinnati Law Review

The regulation of employer-sponsored retirement plans in the United States relies on fiduciary standards drawn from donative trust law to regulate the conduct of those with authority or discretion over plan assets. The mismatch between the trust-based fiduciary framework and the rights and interests of employers and employees has contributed to the high cost of pension fund investing and the significant gaps in pension coverage in the private sector. In recent years, state and local governments have stepped in to reduce the retirement coverage gap by creating state-facilitated retirement savings programs for private-sector workers who lack access to employment-based coverage. …

Indenture Trustee Duties: The Pre-Default Puzzle, Steven L. Schwarcz

University of Cincinnati Law Review

This Article addresses a topic at the intersection of finance, agency, contract, and trust law: the pre-default duties of an indenture trustee for bondholders. The existing scholarship on indenture trustee duties focuses on the post-default scenario, when the indenture trustee is required to act as a prudent person in like circumstances on behalf of the bondholders. No prior scholarship addresses an indenture trustee’s pre-default duties. It is critical to try to define those duties because activist investors in the $42-trillion-plus bond market increasingly are making pre-default demands on indenture trustees, requiring them to know how to respond.

High Crimes: Liability For Directors Of Retail Marijuana Corporations, Lauren A. Newell

Law Faculty Scholarship

Selling retail marijuana in the United States is illegal — or is it? A rising number of states have legalized the retail sale of marijuana and are busily regulating these sales and the companies that make them. Even so, the sale of marijuana is a crime under federal law. Are companies that sell retail marijuana duly sanctioned, productive contributors to their state economies, or are they felons just waiting for the wheels of justice to turn in their direction? At this moment, no one can answer that question with certainty.

What is certain is that more companies are being formed …

Law In The Time Of Covid-19, Katharina Pistor

Faculty Books

The COVID-19 crisis has ended and upended lives around the globe. In addition to killing over 160,000 people, more than 35,000 in the United States alone, its secondary effects have been as devastating. These secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools.

This volume offers guidance for thinking about some the most pressing legal issues the …

Insolvency Law In Times Of Covid-19, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

The international spread of the coronavirus is not only generating dramatic consequences from a social perspective but it is also heavily affecting the global economy. For this reason, governments, financial regulators and international organizations are responding to this pandemic with a package of legal, economic and financial reforms. Among the legal measures included in these packages of reforms, many countries, including Australia, Germany, Spain, India, Singapore, the United Kingdom and the United States, have proposed or implemented several changes to their insolvency frameworks.

Delaware's New Competition, William J. Moon

Northwestern University Law Review

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector …

Directors’ Duties Of Financially Distressed Companies In The Time Of Covid-19, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Unlike other jurisdictions around the world, several European countries require corporate directors to file for bankruptcy once a company becomes insolvent. For instance, under German law, corporate directors are required to file for bankruptcy within three weeks since they know, or ought to have known, that the company became insolvent on a balance-sheet or a cash-flow basis. Failure to comply with this duty may expose the directors to both civil and criminal liability. In Spain, a similar duty is imposed. However, instead of exposing directors to criminal liability, they can be subject to other sanctions (including disqualification and liability for …

The Overturning Of Quill And The New Nexus Standard, Ethan T. Kirner

DePaul Business & Commercial Law Journal

No abstract provided.

Blowing The Whistle In The Digital Age: Are You Really Anonymous? The Perils And Pitfalls Of Anonymity In Whistleblowing Law, Tanya M. Marcum J.D., Jacob Young D.B.A., Ethan T. Kirner

DePaul Business & Commercial Law Journal

No abstract provided.

Compliance As An Exchange Of Legitimacy For Influence, In The Oxford Handbook Of Global Legal Pluralism (Paul Schiff Berman Ed., 2020), Kishanthi Parella

Books and Chapters

This chapter explains that business actors comply with legally nonbinding institutions because of an exchange between legitimacy and influence. Specifically, the information effects produced by both binding and nonbinding institutions can cause reputational damage to a company. To regain its legitimacy, that company associates itself with a more reputable organization than itself, regaining legitimacy through that association. However, that association often comes at a price. In exchange for conferring legitimacy, the external organization will promote its own institutions for the company’s adoption. Companies therefore adopt these institutions in order to credibly signal the quality of their association with the external …

The Law Of Corporate Investigations And The Global Expansion Of Corporate Criminal Enforcement, Jennifer Arlen, Samuel W. Buell

Faculty Scholarship

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the U.S. and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of …

Competing For Votes, Kobi Kastiel, Yaron Nili

Faculty Scholarship

Shareholder voting matters. It can directly shape a corporation’s governance, operational and social policies. But voting by shareholders serves another important function—it produces a marketplace for votes where management and dissidents compete for the votes of the shareholder base. The competition over shareholder votes generates ex ante incentives for management to perform better, to disclose information to shareholders in advance, and to engage with large institutional investors.

Traditional corporate law has looked to a variety of “market forces” as a means of curbing the agency costs of public corporations. Yet, for various reasons, these market forces are, at best, an …

Shadow Governance, Yaron Nili, Cathy Hwang

Faculty Scholarship

Corporations have something to say about some of the most important social and economic issues of our time—and one way they say it is through shadow governance. This Article spotlights a group of influential corporate policies comprising what we call “shadow governance.” These non-charter, non-bylaw governance documents express a corporation’s commitment to and process on issues as wide-ranging as campaign finance, environmental sustainability, and sexual harassment, but are largely overlooked by scholars and practitioners alike. This Article addresses that gap, revealing how shadow governance documents influence corporate decision-making and corporate behavior.

This Article makes two contributions to the literature. First, …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Lessons About Franchise Risk From Yum Brands And Schlotzsky’S, Robert W. Emerson, Lawrence J. Trautman

Lewis & Clark Law Review

This Article presents YUM! Brands, Inc. disclosure information and valuable insight into the risks of starting a business that shares intellectual property with another party. YUM is the parent of entities such as KFC, Pizza Hut, and Taco Bell, with locations around the world. YUM is particularly useful for our analysis because of its mature operating concepts.

Sandwich shop franchisor and operator Schlotzsky’s, Inc. presents a different aspect of shareholder and franchisee risk. The facts leading up to Schlotzsky’s bankruptcy filing represent what can go wrong with undercapitalized franchise operations and illustrate that franchising is inherently risky for anyone.

This …

Soft Law As Governing Law, Steven L. Schwarcz

Faculty Scholarship

International business transactions increasingly are being conducted under “soft law”—a term referring to non-state rules that may be aspirational or reflect best practices but are not yet legally enforceable. In part, this shift reflects a decline in cross-border treaty-making, which needs widespread consensus and is subject to lengthy negotiations. Soft law’s lack of enforceability, however, is creating uncertainty and undermining predictability. To increase predictability, this Article argues for an innovative use of soft law: as a set of rules to choose as the governing “law” of business contracts. This use of soft law would be transformational, making the soft law …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Introduction, Kim Brooks, Kim Brooks

Dalhousie Law Journal

At Schulich, we see business law in a broad frame and understand that business law and policy includes the role of businesses in environmental protection, sustainable investing, inter-nation equity, and access to justice. We understand that businesses operate in broad social, economic, and political contexts, and as a community of scholars we care about the interactions of business law and policy with technology, governance and stakeholder rights, and economic, social and environmental justice. We hope that this collection advances vital scholarly and policy conversations.

A Survey And Critique Of The “Seller In Possession” Statutory Regimes Of Common Law Canada: An Abc Prequel, Clayton Bangsund

Dalhousie Law Journal

The article examines the various provincial and territorial statutory regimes that apply to resolve title disputes emanating from a “seller in possession” scenario in which an initial buyer leaves bought goods in the possession of a seller who then transfers them to a subsequent bona de purchaser. Presently there are four distinct statutory models in force across common law Canada. Some provinces and territories incorporate modernized electronic personal property registry infrastructure into their statutory priority regimes, while others do not. The author undertakes a comparative assessment of the four models, highlights their strengths and weaknesses, and asserts that Model 2—representative …

Disrupting Business As Usual: Considering Teaching Methods In Business Law Classrooms, Jeffery Hewitt, Shanthi E. Senthe

Dalhousie Law Journal

The Truth and Reconciliation Commission of Canada (TRC)’s Calls to Action propose signimcant changes to legal education. No law school classroom is exempt, including business law courses. We are two of a growing number ofscholars in the legal academy actively incorporating Indigenous laws, critical race theory and socio-economic perspectives into business law courses as part of our responses to the TRC. This paper explores a field school we developed at Windsor Law as a response to the Calls to Action. In a temporary fusion of two courses, Secured Transactions along with Indigenous Peoples, Art & Human Rights, a synergy emerges …

Manufacturing Consent To Climate Inaction: A Case Study Of The Globe And Mail ’S Pipeline Coverage, Jason Maclean

Dalhousie Law Journal

Canada has long been a climate change policy laggard. Canada is among the world’s poorest-performing countries in terms of climate action—not only is Canada’s greenhouse gas emissions-reduction target under the Paris Agreement insufficiently ambitious, Canada is not even remotely on track to meet it. Canada’s enduring inaction on climate change is legitimized and sustained by its mainstream corporate news media, which contribute to the oil and gas industry’s capture of Canadian climate and energy policy. In this article, I examine how Canada’s leading national newspaper, The Globe and Mail, editorially framed the completion of the controversial expansion of the Trans …

Third-Party Liability Of Directors And Officers: Reconciling Corporate Personality And Personal Responsibility In Tort, Michael Marin

Dalhousie Law Journal

When is a director or of�� cer personally liable in tort to a party who is not the corporation he or she serves? In Canada, there is no clear answer. The law is marked by division both within and between appellate courts, resulting in judgments that are hard to reconcile and verge on arbitrary. This is likely attributable to the mistaken belief that there is a tension between personal liability and corporate personality, as well as the disputed relationship between common law and statutory obligations. To address these challenges, most Canadian courts have followed a threshold corporate law analysis, which …

Reorganizations, Sales, And The Changing Face Of Restructuring In Canada: Quantitative Outcomes Of 2012 And 2013 Ccaa Proceedings, Alfonso Nocilla

Dalhousie Law Journal

This article examines quantitative data on the outcomes of proceedings under the Companies’ Creditors Arrangement Act (CCAA), Canada’s principal statute for resolving large, complex corporate insolvencies. In particular, this article compares the durations, direct costs, and returns to different classes of creditors generated by traditional reorganizations under the CCAA and by “liquidating CCAAs”—that is, proceedings in which the insolvent debtor sells substantially all of its assets rather than reorganizing itself. The article makes a number of contributions to the existing scholarship. Firstly, quantitative data on CCAA proceedings are rare. The data examined here, collected by the author from proceedings initiated …

Evaluating Canadian Tax Remission Orders: A Debt Relief Vehicle For Taxpayers, Samuel Singer

Dalhousie Law Journal

Tax remission orders, although rare, serve important functions in the Canadian tax system. This paper draws from a comprehensive study of federal tax remission orders issued between 1998 and 2017. It presents general findings about remission orders in that time period, including remission order applications, their reported costs, and the number of remission orders issued. The paper identifies the five most common categories of reasons cited for granting remission orders. It then applies tax policy analysis to assess the two most frequent reasons for grating remission orders: to provide debt relief for financial hardship and/or extenuating circumstances, and to provide …

Corporate Risk And Climate Impacts To Critical Energy Infrastructure In Canada, Rudiger Tscherning

Dalhousie Law Journal

Recent climate events such as Hurrican Harvey in Texas foreshadow the dangers that could result from critical energy infrastructure failure in Canada due to physical impacts caused by climate change. This article examines the types of climate impacts that could affect critical energy infrastructure in Canada. The article argues that these impacts translate into three types of corporate risk to the owners and operators of the critical asset: economic risks to the infrastructure asset; management and operational risks to the corporation; and risks arising from corporate disclosure obligations. Applying the theoretical approach of "risk management," the article concludes that, on …

Understanding The (Ir)Relevance Of Shareholder Votes On M&A Deals, Randall S. Thomas, James D. Cox, Tomas J. Mondino

Vanderbilt Law School Faculty Publications

Has corporate law and its bundles of fiduciary obligations become irrelevant? Over the last thirty years, the American public corporation has undergone a profound metamorphosis, transforming itself from a business with dispersed ownership to one whose ownership is highly concentrated in the hands of sophisticated financial institutions. Corporate law has not been immutable to these changes so that current doctrine now accords to a shareholder vote two effects: first, the vote satisfies a statutory mandate that shareholders approve a deal, and second and significantly, the vote insulates the transaction and its actors from any claim of misconduct incident the approved …

Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson

Cleveland State Law Review

Corporations overwhelmed with debt frequently turn to the courts for help to restructure their credit obligations, but some courts are more helpful than others. This is especially true when creditors cannot agree on a particular resolution, let alone when some creditors will not be paid at all. International corporations often have a choice of forum—and substantive insolvency law—based on their legal and physical presence in dozens or even hundreds of countries. The UK and U.S. offer different avenues for using insolvency law to restructure debts without total liquidation, and the American avenue has become more difficult to navigate thanks to …