Luca Enriques

Biography

Luca Enriques is the Allen & Overy Professor of Corporate Law, in association with Jesus College. He studied law at the University of Bologna before completing his LLM at Harvard Law School and working at the Bank of Italy while at the same time earning a Doctorate degree in Business Law at Bocconi University. He then became a member of the University of Bologna Faculty of Law (1999-2012). During that period, he was a consultant to Cleary Gottlieb Steen & Hamilton and an adviser to the Italian Ministry of the Economy and Finance on matters relating to corporate, banking and securities law with a special focus on European Union policy initiatives. He was a Commissioner at Consob, the Italian Securities and Exchange Commission between 2007 and 2012 and Professor of Business Law at LUISS University, Department of Law, in Rome in 2013-14.

He has held visiting posts at various academic institutions including Harvard Law School, where he was Nomura Visiting Professor of International Financial Systems (2012-13), Cornell Law School (1999 and 2000), the Instituto de Impresa in Madrid (2005), the Radzyner School of Law at the Interdisciplinary Center Herzliya (2013-14) and the University of Cambridge Faculty of Law (2014-15).

He has published widely in the fields of company law, corporate governance and financial regulation. He is the Editor of the ECGI Working Paper Series in Law, an ECGI Research Fellow, a member of ECGI's board, and one of the founding academic editors of the Oxford Business Law Blog.

Professor Enriques will be on sabbatical leave in the Fall (Michaelmas) and Winter (Hilary) terms respectively of 2018 and 2019.

Publications

Displaying 1 - 52 of 52. Sorted by year, then title.

L Enriques and M Gatti, 'Creeping Acquisitions in Europe' in J Grant (ed), European Takeovers: The art of Acquisition (Global Law and Business 2018)

ISBN: 9781787421769
L Enriques, J Armour and M Bengtzen, 'Globalization ' in M Fox, LR Goltsen, EF Greene, MS Patel (ed), Securities Markets Issues for the 21st Century (e-book 2018)
J Armour and L Enriques, 'Individual Investors’ Access to Crowdinvesting: Two Regulatory Models ' in Douglas Cumming and Lars Hornuf (eds), The Economics of Crowdfunding (Palgrave 2018)

Crowdinvesting--raising many small contributions of capital from individual funders via specialized online platforms--is a burgeoning phenomenon. This Chapter first highlights the perils to which individual investors are exposed when they access these platforms. Next, it describes the legal regime in two sample jurisdictions, the US with its tradition of high-fixed-cost, disclosure-intensive securities laws that had to be tweaked to make equity crowdfunding viable, and the UK, which has early on provided for a nimble set of rules for the same. Finally, the Chapter offers some thoughts on the merits of introducing a lighter regime for equity crowdfunding.
ISBN: 978-3-319-66119-3
L Enriques, 'Related Party Transactions' in JN Gordon and G Ringe (eds), The Oxford Handbook of Corporate Law and Governance (Oxford University Press 2018)

DOI: 10.1093/oxfordhb/9780198743682.013.27
J Armour and L Enriques, 'The Promise and Perils of Crowdfunding: Between Corporate Finance and Consumer Contracts' (2018) The Modern Law Review 51

DOI: 10.1111/1468-2230.12316
‘Crowdfunding’ is a burgeoning phenomenon. Its still-evolving status is reflected in diversity of contracting practices: for example, ‘equity’ crowdfunders invest in shares, whereas ‘reward’ crowdfunders get advance units of product. These practices occupy a hinterland between existing regimes of securities law and consumer contract law. Consumer protection law in the UK (but not the US) imposes mandatory terms that impede risk-sharing in reward crowdfunding, whereas US (but not UK) securities law mandates expensive disclosures that hinder equity crowdfunding. This article suggests that while crowdfunding poses real risks for funders, the classical regulatory techniques of securities and consumer law provide an ineffective response. Yet, a review of rapidly-developing market mechanisms suggests they may provide meaningful protection for funders. An initially permissive regulatory approach, open to learning from market developments yet with a credible threat of intervention should markets fail to protect consumers, is justified.
ISBN: 1468-2230
L Enriques, 'A Harmonised European Company Law: Are We There Already?' (2017) International and Comparative Law Quarterly 763

DOI: https://doi.org/10.1017/S0020589317000239
To what extent is EU company law harmonized? This article first makes the point that little progress has been made in the direction of company law uniformity within the EU. It then argues that, even leaving aside the question of whether it would be desirable to have a uniform EU company law, that outcome is simply impossible to achieve, due to interest group resistance and the variety in national meta-rules. Yet it concludes that, in a narrow meaning, European company laws have indeed been harmonized: European Member States company laws fit together, which may well be what harmonization, not only etymologically, is all about.
ISBN: 0020-5893
L Enriques, 'Empty Threats – Why the UK Has Currently No Chance to Become a Tax or Regulatory Haven' in J Armour and H Eidenmueller (eds), Negotiating Brexit (Beck 2017)
L Enriques, 'Il ruolo dei consigli di amministrazione delle società quotate italiane nell’era della disruptive innovation' (2017) Banca Impresa Società 15

DOI: 10.1435/86766
ISBN: 1120-9453
L Enriques, 'Società per azioni' (2017) X Giuffrè Editore Enciclopedia del diritto. Annali. 958
R Kraakman, J Armour, P Davies and L Enriques and others, The Anatomy of Corporate Law (3rd edn Oxford University Press 2017)

ISBN: 9780198724315
L Enriques and M Gargantini, 'The Expanding Boundaries of MiFID’s Duty to Act in the Client’s Best Interest: The Italian Case' (2017) The Italian Law Journal 485

MiFID requires investment firms to act in accordance with the best interests of their clients. This overarching principle shapes firms’ professional conduct in at least two ways. First, it sets a general standard firms have to comply with when dealing with their clients, and its breach may lead to civil remedies for clients or administrative sanctions for investment firms. Second, the duty is the backbone of the detailed conduct of business rules within the body of MiFID II and its implementing measures, playing a role in their interpretation. In this paper, we analyse the duty to act in the clients’ best interest within the MiFID II framework, and illustrate its practical relevance by looking at its role in Italian financial markets law. More specifically, after recalling how the duty came to be an essential part of the ISD/MiFID framework, we map how the duty is spelt out, at various junctures, in the Directive and highlight its functions. Next, we look into how the duty operates with reference to different investment services and activities covered by MiFID II, claiming that the duty is quite difficult to reconcile with services characterized by at-arms’-length relationships between the investment firm and the client. Then, we focus on the use of the duty in the law in action of one member state, Italy, where retail investors have suffered from egregious cases of mis-selling of bonds issued by the banks acting as their investment services providers. We conclude that the MiFID II regime falls short of clarifying with sufficient precision the implications of the best interest duty and, at least in the civil law jurisdiction we focus on (Italy), significantly expands the scope for judicial review of purely arms-length firms-clients relationships.
ISBN: 2421-2156
L Enriques and M Gargantini, 'The Overarching Duty to Act in the Best Interest of the Client in MiFID II ' in D Busch and G Ferrarini (eds), Regulation of EU Financial Markets: MIFID II and MiFIR (Oxford University Press 2017)

ISBN: 9780198767671
Martin Bengtzen and L Enriques, 'Editorial: The ‘Argumentum a Crise’: So Powerful, So Prone to Misuse' (2016) European Company Law 120

ISBN: 1572-4999
L Enriques, 'EU Prospectus Regulation: Some Out-of-the-Box Thinking' (2016) Revista Lex Mercatoria 39

ISBN: 2445-0936
L Enriques and M Gargantini, 'Form and Function in Doing Business Ratings: Is Investor Protection in Italy Still So Bad?' (2016) University of Bologna Law Review 1

DOI: 10.6092/issn.2531-6133/5583
The World Bank’s Doing Business Report (DBR) ranks every year numerous jurisdictions across the globe according to their ability to facilitate business activities. Among the indexes contributing to the definition of the global competitiveness of the legislations, the “Protecting investors index” (PII) measures the protection of minority shareholders in listed companies. In this paper, we analyse the DBR’s assessment of the Italian regulatory framework on investor protection. We find that the PII falls short of properly evaluating the applicable rules. First, it underrates Italy because the DBR evaluation falls short of properly evaluating the role performed by independent directors under Italian rules on related party transactions. In particular, the DBR fails to properly account for independent directors’ power to veto unfair transactions before they are submitted to the board, a safeguard that ensures minority investors’ protection at least as well as mandatory abstention by conflicted directors. Second, past DBR overrated the PII, so that subsequent reforms that substantially improved investor protection have not been grasped by more recent assessments, giving the misleading impression that no relevant changes have occurred. Far from representing one of the multiple coding errors reported in the literature, these flaws aptly show that the DBR methodology, while correctly attempting to preserve consistency in the evaluation of different jurisdictions, adopts an excessively formalistic approach and disregards the function of the rules it scrutinizes. In light of the influence that the DBR exerts on national policymakers, this approach is detrimental because it might induce window-dressing reforms. Moreover, it may rule out experimentation, which is key to ensuring that the applicable rules keep pace with the variety of techniques adopted to expropriate minority shareholders.
ISBN: 2531-6133
L Enriques, 'Il Regno Unito dopo la Brexit: un nuovo, enorme paradiso fiscale e societario alle porte dell’Unione Europea?' (2016) Osservatorio del diritto civile e commerciale 577

DOI: 10.4478/84999
The Editorial examines whether one of the possible consequences of Brexit could be the creation of a tax and/or regulatory haven in the UK, arguing that the political preconditions for such an outcome are unlikely to exist.
ISBN: 2281-2628
J Armour, D Awrey, P Davies and L Enriques, Principles of Financial Regulation (Oxford University Press 2016)

ISBN: 9780198786474
L Enriques and S Gilotta, 'Disclosure and Financial Market Regulation' in N. Moloney, E. Ferran and J. Payne (eds), The Oxford Handbook of Financial Regulation (Oxford University Press 2015)
M Belcredi and L Enriques, 'Institutional Investor Activism in a Context of Concentrated Ownership and High Private Benefits of Control: The Case of Italy' in JG Hill and RS Thomas (eds), Research Handbook on Shareholder Power (Edgar Elgar 2015)

This chapter describes the experience with activist institutional investors in an apparently unfavorable corporate environment (Italy), commonly depicted as one of concentrated ownership, notoriously inadequate legal protection for minority shareholders and an apparent disregard for their interests by controlling shareholders. We document a non-negligible volume of core active institutional investment, together with some idiosyncratic forms of activism (the appointment of minority directors on the boards of Italian listed companies). We attempt to evaluate whether what we see is genuine shareholder-value oriented activism or a strategy to engage in a privileged relationship with controlling shareholders, in order to share in private benefits of control extraction. We find no sufficient evidence to support a dark side view of shareholder activism, at least as a general explanation. Instead, we provide recent anecdotal evidence of initiatives effectively aimed to curb the extraction of private benefits by dominant shareholders.
ISBN: 978 1 78254 684 9
L Enriques and D Zetzsche, 'Quack Corporate Governance, Round III? Bank Board Regulation Under the New European Capital Requirement Directive ' (2015) Theoretical Inquiries in Law 211

After a crisis, broad and sweeping reforms are enacted to restore trust. Following the 2007-2008 Great Financial Crisis, the European Union has engaged in an ambitious overhaul of banking regulation. One of its centrepieces, the 2013 Fourth Capital Requirements Directive (CRD IV), tackles, amongst other things, the perceived pre-crisis failings in the governance of banks. We focus on the provisions that are aimed at reshaping bank boards composition, functioning, and their members liabilities, and argue that they are unlikely to improve bank boards effectiveness or prevent excessive risk-taking. We criticize some of them for mandating solutions, like board diversity and the separation of chairman and CEO, that may be good for some banks but are bad for others, in the absence of any convincing argument that their overall effect is positive. We also criticize enhanced board liability by showing that it may increase the risk of herd behaviour and lead to more serious harm in the event of managerial mistakes. We also highlight that the push towards unfriendly boards may negatively affect board dynamics and make boards as dysfunctional as when the CEO dominates them. We further argue that limits on directorships and diversity requirements will worsen the shortage of bank directors, while requirements for induction and training and board evaluation exercises will more likely lead to tick-the-box exercises than under the current situation in which they are just best practices. We conclude that European policymakers and supervisors should avoid using a heavy hand, respectively, when issuing rules implementing CRD IV provisions with regard to bank boards and when enforcing them.
ISBN: 1565-3404
L Enriques, 'Related Party Transactions: Policy Options and Real-World Challenges (with a Critique of the European Commission Proposal) ' (2015) 16 European Business Organization Law Review 1

This paper provides a legal and policy analysis of transactions between a corporation and one of its related parties. It first highlights the reasons why related party transactions (RPTs) are so common around the world. Next, it better identifies the phenomenon as a specific form of potentially abusive behaviour by dominant shareholders and managers, i.e., as an instrument for tunneling, asking why many jurisdictions provide for specific regulations on RPTs in addition to general rules or standards on tunneling. Then, it describes the main legal tools available to prevent corporate agents from diverting value from the corporation via RPTs. Further, it provides a (partially) critical assessment of the measures put forth by the European Commission to harmonise rules on RPTs within the EU, based on the previous analysis of individual legal tools. Finally, it shows that no regulation of RPTs (or tunneling) can succeed in preventing minority shareholder expropriation in the absence of sophisticated enforcement actors (specialised courts and/or active and committed securities regulators) and non-legal supporting institutions, like independent financial media and anti-tunneling social norms.
ISBN: 1566-7529
L Enriques and G. Hertig, 'Shadow resolutions as a no-no in a sound Banking Union' in E. Faia, A. Hackethal, M. Haliassos and K. Langenbucher (eds), Financial Regulation. A Transatlantic Perspective (Cambridge University Press 2015)
L Enriques and M. Gatti, 'Creeping Acquisitions in Europe: Enabling Companies to Be Better Safe than Sorry' (2015) 15 Journal of Corporate Law Studies 55
L Enriques, R.J. Gilson and A.M. Pacces, 'The Case for an Unbiased Takeover Law (with an Application to the European Union)' (2014) 4 Harvard Business Law Review 85
L Enriques and D.A. Zetzsche, 'The Risky Business of Regulating Risk Management' (2013) 10 European Company and Financial Law Review 271
L Enriques, 'European Takeover Law: The Case for a Neutral Approach' (2011) 22 European Business Law Review 623
L Enriques and G. Hertig, 'Improving the Governance of Financial Supervisors' (2011) 12 European Business Organization Law Review 357
L Enriques, M. Gargantini and V. Novembre, 'Mandatory and Contract-based Shareholding Disclosure' (2010) 15 Uniform Law Review 713
M. Becht, L Enriques and V. Korom, 'Centros and the Cost of Branching' (2009) 9 Journal of Corporate Law Studies 171
L Enriques, 'Corporate Governance Reforms in Italy: What Has Been Done and What Is Left to Do' (2009) 10 European Business Organization Law Review 477
L Enriques, 'Regulators' Response to the Current Crisis and the Upcoming Reregulation of Financial Markets: One Reluctant Regulator's View' (2009) 30 University of Pennsylvania Journal of International Law 1147
R. Kraakman, J. Armour, P. Davies and L Enriques and others, The Anatomy of Corporate Law (2d ed) (Oxford University Press 2009)
L Enriques and M. Gatti, 'Is There a Uniform EU Securities Law After the Financial Services Action Plan?' (2008) 14 Stanford Journal of Law, Business & Finance 43
P-H. Conac, L Enriques and M. Gelter, 'Constraining Dominant Shareholders? Self-Dealing: The Legal Framework in France, Germany, and Italy' (2007) 4 European Company and Financial Law Review 491
L Enriques and P. Volpin, 'Corporate Governance Reforms in Continental Europe' (2007) 21 Journal of Economic Perspectives 117
L Enriques and M. Gatti, 'EC Reforms of Corporate Governance and Capital Markets Law: Do They Tackle Insiders? Opportunism?' (2007) 28 Northwestern Journal of International Law and Business 1
L Enriques and M. Gelter, 'How the Old World Encountered the New One: Regulatory Competition and Cooperation in European Corporate and Bankruptcy Law' (2007) 81 Tulane Law Review 577
L Enriques, 'Company Law Harmonization Reconsidered: What Role for the EC?' in S.M. Bartman (ed), European Company Law in Accelerated Progress (Kluwer Law International 2006)
L Enriques, 'Conflicts of interest in Investment Services: the Price and Uncertain Impact of MiFID?s Regulatory Framework' (2006) 2 Revue Trimestrielle de Droit Financier 49
L Enriques, 'EC Company Law Directives and Regulations: How Trivial Are They?' (2006) 27 University of Pennsylvania Journal of International Economic Law 1
L Enriques and M. Gelter, 'Regulatory Competition in European Company Law and Creditor Protection' (2006) 7 European Business Organization Law Review 417
L Enriques and M. Gatti, 'The Uneasy Case for Top-Down Corporate Law Harmonization in the European Union' (2006) 27 University of Pennsylvania Journal of International Economic Law 939
M. Bianchi and L Enriques, 'Corporate Governance in Italy After the 1998 Reform: What Role for Institutional Investors?' (2005) 2 Corporate Ownership & Control 11
L Enriques, 'EC Company Law and the Fears of a European Delaware' (2004) 15 European Business Law Review 1259
L Enriques, 'Silence Is Golden: The European Company Statute as a Catalyst for Company Law Arbitrage' (2004) 4 Journal of Corporate Law Studies 77
L Enriques, 'The Comparative Anatomy of Corporate Law (Book review of REINIER KRAAKMAN ET AL., THE ANATOMY OF CORPORATE LAW. A COMPARATIVE AND FUNCTIONAL APPROACH (OUP Oxford: 2004))' (2004) 52 American Journal of Comparative Law 1011
L Enriques, 'The Mandatory Bid Rule in the EC Takeover Directive: Harmonization Without Foundation?' (2004) 1 European Company and Financial Law Review 440
L Enriques, 'Bad Apples, Bad Oranges: A Comment from Old Europe on Post-Enron Corporate Governance Reforms' (2003) 38 Wake Forest Law Review 911
L Enriques, 'Do Corporate Law Judges Matter? Some Evidence From Milan' (2002) 3 European Business Organization Law Review 765
J. Macey and L Enriques, 'Creditors Versus Capital Formation: The Case Against the European Legal Capital Rules' (2001) 86 Cornell Law Review 1165
L Enriques, 'Pyramidal Groups and Separation Between Ownership and Control in Italy' in F. Barca and M. Becht (eds), The Control of Corporate Europe (Oxford University Press 2001)
L Enriques, 'The Law on Company Directors' Self-Dealing: A Comparative Analysis' (2000) 2 International and Comparative Corporate Law Journal 297