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Abstract:
Corporate governance codes have been published in several European jurisdictions. Most are of a self regulatory nature, others are rooted in the law. In both cases the provisions of the codes apply on a comply and explain basis. Enforcement mainly takes place through market mechanisms, including by shareholders using their legal and factual rights within the company. Moreover, the legal system will normally absorb these rules through blank norms, such as liability or contract rules. In states where the law has expressly referred to the code - in Germany and in the Netherlands, additional questions arise.

The role of the market supervisors and of the auditors have expressly been discussed in these jurisdictions. The analysis concludes that market led enforcement, along with a strengthening of company law mechanisms constitutes the best equilibrium for developing adaptive but nevertheless effective corporate governance practices.

corporate governance codes, enforcement, legal system, comply and explain,market supervisors, company law

Abstract:
After the Centros case in 1999, the Europe Court of Justice has again delivered a significant case dealing with the legal situation of EU companies establishing themselves in other Member States. In the Uberseering case of November 5, 2002, the Court considered incompatible with the Treaty freedoms, the German rule, based on the real seat doctrine, whereby foreign companies with a seat on the German territory were refused to appear in German courts unless they proceeded to re-incorporation. This was considered an outright negation of the freedom of establishment. Member states should allow companies that have been incorporated in other Member states to freely enter their territory, according to the rules under which they have been formed in their state of origin. The case constitutes another landmark on the road towards the more free circulation of companies in Europe. Whether it introduces the incorporation theory as the European rule, is open to doubt, as the Court has exclusively relied on the Treaty rules on free establishment. It seems that the Court has rather developed a new approach that could allow to bridge the differences between incorporation and real seat techniques.

European Company Statute, Seat Transfer, Incorporation theory, Real Seat theory, Uberseering case, "General Good" Clause, EC Company Law

Abstract:
This paper addresses some of the issues underlying the harmonisation of company law in Europe, especially in its relationship with company law developments in the Member states. It highlights that until now company law has attempted to engage in substantive harmonisation, and less in solving cross-border issues involving company establishment. By doing so, it has led to a pattern of cross border establishment that, being essentially based on the formation of subsidiaries under more or less comparable legal systems, is less efficient than if the companies in Europe had been allowed to freely and efficiently establish themselves under the form of branches. It also allows to situate the substantive harmonisation activity as a form of restricting the competitive forces in the company law field. By stressing substantive harmonisation, regulatory arbitrage has been stifled leading to less flexibility without reducing the need for rules on the cross-border aspects of the company activity.

Some recent developments are analysed, dealing with the SLIM report, the 14th predraft on the cross-border transfer of the seat, and the proposed rules on the European company statute.

Abstract:
In Europe three models of financial supervision are being practised: a three pillar model (banking, insurance and securities), a two pillar model (prudential v. conduct of business) and an integrated model (all types of supervision under one roof). This paper gives an overview of the models followed in each of the European states, and analyses the characteristics of the different models. Although the choice for a specific model is determined by political, historical and path dependence factors, recently a trend for integration has become visible. The paper attempts to compare to pros and cons of the different models.

financial supervision

Abstract:
The 'Centros' judgment of the European Court of Justice is provoking great waves of unrest on the continent: interpretations vary from a breakthrough of the incorporation doctrine, the opponent philosophy, the seat doctrine having been thrown overboard, while the introduction of the Delaware rule in Europe would entail the much dreaded "race to the bottom." The Centros case will stir legal debate in several directions. After an analysis of the Centros-judgment, this paper looks into the possible implications of the ruling on the 'seat doctrine', the transborder transfer of the company seat and the prospects for harmonisation and regulatory competition in company.

Abstract:
The 'Centros' judgment of the European Court of Justice is provoking great waves of unrest on the continent: interpretations vary from a breakthrough of the incorporation doctrine, the opponent philosophy, the seat doctrine having been thrown overboard, while the introduction of the Delaware rule in Europe would entail the much dreaded "race to the bottom." The Centros case will stir legal debate in several directions. After an analysis of the Centros-judgment, this paper looks into the possible implications of the ruling on the 'seat doctrine', the transborder transfer of the company seat and the prospects for harmonisation and regulatory competition in company.

Abstract:
The EU financial regulatory and supervisory scheme has recently been substantially changed. Several new directives both in securities and banking - followed soon by insurance - will overhaul regulation in the EU. At the same time work is being done in the regulatory and supervisory architecture. By using delegated rulemaking, much of the needed centralisation has been achieved. Supervisory coordination now becomes the focus of the debate: at present coordination has been based on cooperation networks, framed around the regulatory and advisory committees. How far can this approach be upheld, or should Europe be heading for a single supervisor, possibly integrating the three mentioned fields of business activity? What alternative schemes could be devised, relying on the existing home-host pattern, the development of new techniques of cooperation and enforcement or - as some think - majority decision making? Subsidiarity, proximity and efficiency reasons point toward a further deepening of the network approach that better meets the needs of the market participants.

Financial regulation

Abstract:
Good governance - both by public institutions and by private business - is considered one of the building blocks upon which economic success is based. Hence the efforts undertaken by many international and national organisations and bodies to improve governance, especially by enacting rules, standards or recommendations, have to be respected and serve as models against which directors of these institutions or business firms can measure their conduct.

Corporate governance is a subject that is notoriously difficult to define in one sentence. Some view corporate governance in the narrow sense, dealing with the structure and functioning of the boards of directors, and their relationship to management. This narrow definition is the one often found in corporate governance codes. A broader definition includes a company's relationships with shareholders, especially in organisations with concentrated ownership. Finally, academic studies dealing with governance broaden the definition to all internal relationships within a business, including the issues raised by the conduct of shareholders, especially institutional investors, the functioning of the general meeting and the company's relationship with the financial markets. As this article relates to the implementation of corporate governance codes and not to their substance, the narrow definition will be followed.

corporate governance

Abstract:
Please enter abstract text here.The 2004 takeover directive has been implemented in most EU states. It has achieved a very welcome harmonisation of the securities regulatory provisions, especially by introducing a rather strict home rule regime along with mutual recognition, and levelling the conditions for bids (irrevocability, disclosure, equal treatment) although regretfully many concepts remain undefined (equitable price, concert action, etc.).

The company law provisions of the directive, and mainly the rules on anti-takeover defences have, generally spoken, not been implemented by the states. This refers to the more general debate on the role of the shareholder, often summarized in the slogan one share, one vote). Although originally supportive of OSOV, the Commission recently decide to drop that approach. This change of mood takes place on the background of more aggressive action of activist shareholders, the fear for hedge funds and the like, and the appearance of sovereign wealth funds.

Takeovers, corporate law, hedge fund

Abstract:
It seems likely that company law will continue to develop at a high speed in the next century, as one could witness in this closing century. The changes that have been introduced these last thirty years are probably more substantial than those that occurred during the first seventy years: the pace of reform is increasing, mainly due to the influence of the financial markets, but also to the greater interdependency of our different company law systems. In this paper, four topics will be dealt with: (1) Harmonisation and deregulation in the EU; (2) The Centros case, and its consequences; (3) The effects of the securities markets on the development of company law; (4) The consequences of electronic data exchange on the functioning of business enterprises in general, and company life in particular.

Abstract:
It seems likely that company law will continue to develop at a high speed in the next century, as one could witness in this closing century. The changes that have been introduced these last thirty years are probably more substantial than those that occurred during the first seventy years: the pace of reform is increasing, mainly due to the influence of the financial markets, but also to the greater interdependency of our different company law systems. In this paper, four topics will be dealt with: (1) Harmonisation and deregulation in the EU; (2) The Centros case, and its consequences; (3) The effects of the securities markets on the development of company law; (4) The consequences of electronic data exchange on the functioning of business enterprises in general, and company life in particular.

Abstract:
Recently a new category of shareholders is manifesting itself: as activist shareholders they intervene in the actual running of the company, dictating its governance, determining its strategies, and often taking a very aggressive attitude against the incumbent management. Their action is severely criticized by the politicians or in the media, as being destructive of the firms, of enterprise values or of employment. The paper aims at describing the features of the activist shareholders, comparing them to their elderly brothers, the institutional investors, concluding that more disclosure should be available about them, while suggesting that in case they effectively take control of the company, a remedy similar to the mandatory bid may be considered.

company law

Abstract:
This overview contains the inventory and discussion of the Belgian case law reported for the period 1999-2007 in the field of the banking transactions and financial services. The main chapters concern credit transactions (including mortgage, documentary credit and guarantees), bank accounts and payment transactions (payment by cheque, bank transfer, electronic payments), securities transactions and investment services and finally the rules applicable to intermediaries for banking and financial services.

A previous overview has been published on SSRN at http://ssrn.com/abstract=212815

banking transactions, financial services, payments

Abstract:
This paper gives a first analysis of the new directive amending the 2nd company law directive (dir 2006/68). The four changes are analysed and criticized. The rules doing away with an expert opinion in case of contributions in kind are useful, although their scope will appear quite limited. On buy back of shares the directive merely does away with the 10% ceiling, a historical error anyway. Instead comes a limitation to undistributable assets (capital + undistributable reserves). The hopes for relaxation of the regime on financial assistance has not been achieved: the prohibition is abolished, but the procedures are heavy and the reservation requirement excessive. A missed chance!

company law

Abstract:
The relationship between corporate governance and financial stability is an intermediate one. Firms have no obligation to take financial stability into account except when the law or the applicable regulation imposes it. In several fields this is the case: regulation of auditors or credit rating agencies are motivated by financial stability issues. Shortcomings in the governance of large financial and other groups have indicated that these may trigger systemic risks. The paper mentions a few fields where - apart from regulations directly applicable to the firms that triggered the crisis - corporate governance rules should be strengthened to avoid systemic crises to develop again: management remuneration, the role of the CEO and the composition of the boards, accounting and valuation issues are already on the political agenda. The paper leaves it open whether these provisions have to be introduced by way of hard law, or whether existing systems of soft regulation would suffice.

financial stability, auditors, credit rating agencies, corporate governance codes, incentives

Abstract:
This article is the Belgian report concerning rating agencies to the 2006 Congress of the International Academy of Comparative Law to be held in Utrecht. After describing credit rating practices in Belgium, the report considers the extent to which Belgian regulation requires, or relies upon, credit ratings. It then describes Belgian regulation applicable to credit rating agencies and credit rating activities. The remainder of the report analyzes when Belgian law provides civil remedies against a rating agency which issues a credit rating not correctly reflecting the creditworthiness of the rated entity.

Credit Rating, Credit Rating Agency, Financial Regulation, Civil Liability

Abstract:
This paper contains a review of Belgian case law in the field of credit transactions including leasing and factoring, documentary credit and bank guarantees. It also reviews the case law with respect to the use of cheques and of bills of exchange. All Belgian cases rendered in the period 1992-1998 are analysed, reviewed and commented. The paper is a part of a larger paper to be published with Maarten Dambre and Koen Troch, both of Ghent University, in Tijdschrift Privaatrecht Belgie.

Abstract:
At the demand of the OECD, Eddy Wymeersch drafted this comparative overview on the basis of survey reports submitted by a large number of OECD Member States.

The items analysed concern :
- the general meeting of shareholders
- the board of directors and its structure
- the use and usefulness of legal capital
- structure of share ownership and disclosure.

With respect to each of these items, the main features of the regulation in the different jurisdictions have been reviewed. On several topics, recent trends of changes in laws and regulations and in legal thinking have been outlined. This report is mainly addressed to the representatives of the OECD Member States and served as background paper for an OECD Conference, held in Stockholm, on December 8-9, 2000.

Abstract:
As financial integration proceeds, new issues are coming up in the field of supervision of financial markets. Some have to do with better cooperation among supervisors whether in the same field or on a cross-sectoral basis. The possibility to cooperate is however restricted by the public nature of most supervisors: public authorities should exercise their powers themselves, and risks should be borne by the legally empowered supervisor. In order to make supervision more effective, cross border delegation is needed. However, it is unclear to what extent supervisors can delegate, tasks as well as competences or decisions. This paper aims to give a first overview of the issues to be tackled including an attempt to analyse the liability question.

financial supervision

Abstract:
This paper analyses the relationship between the EU Capital Requirements Directive and the proposed Solvency II directive and their application in the context of parent-subsidiary relations and the general rules on groups of companies, as these are applied in the Member States of the EU. Art 68 and 69 of the CRD allow under certain conditions, to apply the capital requirement on a group approach, provided i.a. that there is no legal impediment to the prompt transfer of the own funds. This requirement may, in certain circumstances not be compatible with the common principles of the law on groups. The paper analyses to what extent in cases of financial distress the free transferability whether up- or downstream may be impeded. Similar issues could be raised in the Solvency context.

Capital Requirements, Bank Supervision, Groups of Companies

Abstract:
This paper summarises some of the findings of the research report that was presented to the December 2000 Stockholm conference. Four topics, on which further activities within the OECD can be recommended, deserve special attention: the functioning of the board of directors, the functioning of the general meeting, the issue of ownership and control, and finally the meaning of the legal capital. These topics are briefly developed, with a recommendation for future regulatory action.

Abstract:
After a short historical introduction, this paper argues that corporate mobility remains a real political issue. To clarify matters, it proposes to distinguish between a formal seat transfer, being the choice of a different legal regime, and a de facto seat transfer that would not affect the applicable company law, the host State not being entitled to apply its company law rules. A future directive should be based on this distinction, prescribing the formalities for the former and stating clearly the consequences of the latter, thereby also defining the limits within which the "general good" can be invoked.

corporate mobility; real seat; incorporation doctrine; freedom of establishment; regulatory competition; seat transfer; registered office; Fourteenth Directive; Centros

Abstract:
After a short historical reminder, the paper states that corporate mobility remains a real political issue. To clarify matters it proposes to distinguish between a formal seat transfer, being the choice for a different legal regime, and a de facto seat change that would not affect the applicable company law, the host state not being entitled to apply its company law rules. A future directive should be based on this distinction, prescribing the formalities for the former, and stating clearly the consequences of the latter, thereby also defining the limits within which the general good can be invoked.

corporate mobility

Abstract:
With the new millennium, the harmonization of company law in Europe enters into a new era. The harmonization efforts launched in the precedent decades have been brought to an end. An impressive body of legislation has been created, laying the foundations for European-wide developments of company law. More importantly, the harmonization thus far achieved has demonstrated that company law is an area of regulation where common notions and techniques may be developed. In this paper, we give some considerations about the future developments in European company law. Should new initiatives for harmonization be made, or is it sufficient to modernize the existent framework, as has recently been done in the framework of the SLIM-project. One should take account of the changing environment in which companies operate: glbalization and technological developments are likely to substantially modify different aspects of corporate life.

Abstract:
The relationship between corporate governance codes and the legal order in which they function is a complex one. This paper aims at analysing this relationship on the one hand by describing the factual situation in which the codes have been developed, and on the other the enforcement and monitoring of the codes in the different jurisdictions. It points to the weaknesses in enforcement and calls for developing stronger enforcement instrument without abandoning the self-regulatory nature of the codes.

corporate law, corporate governance, enforcement

Abstract:
Standardisation techniques are used in a very broad range of financial transactions: technical standards, model contracts, codes of conduct, accounting rules, and even experiments with alternatives to European regulations. Especially in the financial services field, where mass production and relational stability are essential, standardisation is an integral part of the existing framework and its regulation. The functions of standardisation are manifold and extend even to issues like mutual recognition. The relationship of these techniques with the legal system is a complex one, relying on a wide range of instruments such as contract provisions, explicit references in the law, default rules, good business practices, and so on. Enforcement is partly based on legal instruments, but also on the market.

financial services, standarisation, soft law

Abstract:
The use of XML and its related languages especially XBRL in the financial markets is likely to raise much attention the next few years. Different projects are being studied: linkage of the business registers, remote access to the annual accounts, organising the distribution of the financial information by listed companies, use for reporting by banks and insurance companies, as some applications that are already in place or being developed. The impact of an efficient information distribution system could help protect creditors, make cross border relations more secure and support the competitiveness of our financial markets.

financial information, business register transparancy, creditor protection, competitive financial markets

Abstract:
The present analysis deals with two types of cross border co-operations between business firms: on the one hand the bi-national horizontal groups (type Shell, Unilever). This form of co-operation allows firms to fully integrate without losing their legal identity. Proposals are made to develop a "default scheme" which firms could adapt. The second subject deals with cross-border take-over: issues of conflicts of laws are numerous. The rule of the market where the target's shares are traded, is dominant, but incidentally account will have to be taken of the jurisdiction of the target company, if registered in another state. The 13th directive contains useful connecting factors.

Abstract:
The purpose of this paper consists of giving an overview of the way company laws in some European states have been dealingwith the dividing line between closely held companies limited by shares, and those that have gone public or have widely distributed shares. It analyses whether a case can be made for regrouping the rules relating to "public" companies in a single body of law, a discussion that is going on in Germany. Also analysed is the question to what extent other jurisdictions have a fully mandatory companies act, comparable to the German "Satzungsstrenge".

Abstract:
The purpose of this paper consists of giving an overview of the way company laws in some European states have been dealing with the dividing line between closely held companies limited by shares, and those that have gone public or widely distributed shares. It analyses whether a case can be made for regrouping the rules relating to "public" companies in a single body of law, a discussion that is going on in Germany.

listed company, public company, regulated market, mandatory law, enabling law

Abstract:
This paper gives an overview of the efforts, worldwide and on a regional i.e. European level basis for introducing more effective and better harmonised financial regulation. Recent initiatives especially the work of the G 20 and the creation of the Financial Stability Board (FSB) indicate greater interest for worldwide coordination of financial regulatory intervention. The financial crisis has however dealt a serious blow to previously existing international dialogue, and the fear exists that the main regulators would withdraw on their national battlefields. Major changes in the supervisory architecture are planned in the European Union: a proposal has been tabled to introduce a coordinated approach to regulation and to monitoring the way existing regulations are applied by putting into place a European system of Financial Supervisors. At the same time a new European Systemic Risk Board will be created. These, and comparable changes in the US may contribute to reactivate the regulatory dialogue.

financial stability, financial crisis, financial supervision in Europe

Abstract:
In Europe, several models for financial supervision have developed over time: from the traditional three-pillar or institutional model (banking insurance and securities), via the intermediate 'twin peaks' model, which is closer to a functional approach, to the single or integrated model. Many elements, including market structure, historical and political factors, have determined each State's choice in favour of one of the models. Several States have recently tried to find more efficient and less costly supervisory schemes. A comparative analysis of the features of these models gives indications about the drivers for choosing one of them and the pros and cons that have been advanced. The actual situation in each of the EU States is described. Some conclusions are drawn as to the regulatory structure at EU level.

banking supervision, financial supervision, functional supervision, insurance supervision, integrated supervision, prudential supervision, securities supervision, bancassurance, conduct of business code, financial stability, single supervisor, twin peaks

Abstract:
Corporate governance is a subject matter that is keeping governments, regulators, business men, academics and many other parties busy all over Europe. Many reports have been published, and recommendations for better governance published. In Belgium, there are specific governance issues: controlling or important shareholders set the tune even in listed companies. Hence part of the debate turn around the question how to reduce the influence of these shareholders and make management more independent.A Code with good governance practices was recommended by Brussels Stock Exchange (on a comply or explain basis), and is in fact widely implemented.The Banking and Finance Commission has requested numerous disclosures to be made with respect to governance. Central items are: independent directors, separation Chairman-CEO, the three usual committees, At present, annual reports contain sections om governance that equal international practice. Awareness of the importance of good governance has increased considerably.

Abstract:
In the forthcoming European directive on take-over bids, provisions restrict the action of the target board to defend itself against the take-overs, especially by forbidding any action or "completing any action" that is likely to jeopardise the take-over. This provision will have significant impact on actual practice in several member states, as it sometimes was usual to issue subscription rights to controlling shareholders or to authorise the board to place additional securities in case of "an imminent and grave danger". The limits of the prohibition of defensive techniques are analysed. However the directive does not prohibit defensive techniques, put into place before the take-overs is imminent, but not involving any board action. In a last section, the policy issues most underlying these rules are analysed, especially the contradiction between this prohibition of the so-called defensive action against the continuing validity of protective action. Also the differences with the U.S. attitude as to defences is mentioned.

Abstract:
The purpose of this contribution is to outline elements of the structure of large business corporations in Europe, mainly on the European continent. The first part deals with the overall characteristics of the factual structure of the corporate world in Western Europe. Differences in legal form are striking, while the use of the public securities markets points to fundamental differences in ownership. In the second part, the legal structure of the board of directors is analyzed. The analysis concentrates on the unitary board as the most frequently found model. The two-tier board is described, both with and without employee participation. The third part focuses on the differences in ownership structure. On the basis of the author's research, the concentration of ownership in the different systems within Europe has been mapped. Further investigation is aimed at identifying the different classes of shareholders: institutionals do not play a predominant role, shares being mainly owned by other companies, by individuals, or by foreign investors. The role of the equity markets is a direct function of the differences in the use of the markets as a financing source. A final point of comparison relates to the market for corporate control, both in its private segment and in the public takeover market.