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  • J Payne, 'An Assessment of the UK Restructuring Moratorium' (2021) Lloyds Maritime and Commercial Law Quarterly (forthcoming)
  • J Payne and Louise Gullifer, 'Intermediated Securities: The European Perspective' in JH Binder and P Saguato (eds), The Law and Regulation of Financial Market Infrastructure: A Trans-Atlantic Perspective on Securities and Derivatives Markets (OUP 2021) (forthcoming)
  • J Payne, Schemes of Arrangement: Theory, Structure and Operation 2nd edition (Cambridge University Press 2021) (forthcoming)
  • R Salter (ed), The Modern Law of Guarantees (Lexis Nexis 2021) (forthcoming)
  • S Enchelmaier, '“Free Movement of Goods: Evolution and Intelligent Design In the Foundations Of The European Union”' in P Craig & G de Búrca (ed), The Evolution of EU Law (OUP 2021)
  • M Bobek and J Adams-Prassl (eds), The EU Charter of Fundamental Rights in the Member States (Bloomsbury 2020)
    Ten years after the Charter of Fundamental Rights of the European Union became part of binding primary law, and twenty years since its adoption, this volume assess the application of the EU Charter in the Member States. How often, and in particular by which actors, is the EU Charter invoked at the national level? In what type of situations is it used? Has the approach of national courts in general, and of constitutional courts in particular, to EU law to EU fundamental rights law changed following the entry into force of the Charter? What sort of interplay does the Charter generate with the national bill of rights and the European Convention? Is the life with the Charter on the national level a harmonious 'praktische Konkordanz' or rather a messy 'ménage à trois'? These and other questions are discussed in the four parts that form the book. Part I is dedicated to the normative foundations. Part II sets out Member States' Perspectives, providing a structured, in-depth account of the Charter's operation in 16 different Member States. Part III provides a detailed evaluation of selected rights contained within the Charter. Part IV synthesises the materials presented up to that point to develop a series of broader perspectives, looking to discover underlying lessons about the relationship between EU fundamental rights law and national legal systems.
    ISBN: 9781509940912
  • L Enriques and W-G Ringe, 'Bank-fintech partnerships, outsourcing arrangements and the case for a mentorship regime' (2020) 15 Capital Markets Law Journal 374
    Fintech firms, once seen as ‘disruptors’ of the traditional banking world, are now increasingly seen as attractive partners for established financial institutions. Such partnership agreements come in different forms and contexts, but most share the goals of outsourcing key banking functions and facilitating market entry for new market players while overcoming relatively tough regulatory hurdles. Yet such arrangements, while generally to be welcomed, pose a number of regulatory problems, in particular concerning the effective supervision of fintechs that operate outside of the direct purview of regulatory authorities. Questions of enforcement and effective supervision emerge, which may ultimately result in problems regarding market stability and systemic risk. Regulatory sandboxes represent one attempt to address these problems but may fail to do so and are often ineffective or unavailable. Other similar solutions, such as fintech charters and umbrella firms, may help but, similarly, provide an imperfect solution. Against this backdrop, we make the case for a ‘mentorship regime’, which provides for a reliable regulatory framework for partnership agreements between fintech firms and established banks. This would allow for a de facto ‘private sandbox’ where experienced firms could mentor new startups and help them to cope with a complex regulatory process. At the same time, a state-backed mentorship plan would clear up the allocation of responsibilities, supervision competences, and liability questions and thus overcome problems of arbitrage and abuse. Ultimately, a mentorship regime may show the way to a new and more reliable future system of banking, making the well-stablished contractual practice of outsourcing banking services more reliable.
    ISBN: 1750-7227
  • L Enriques and D Zetzsche, 'Corporate Technologies and the Tech Nirvana Fallacy' (2020) 72 Hastings Law Journal 55
    This Article introduces the term Corporate Technologies (“CorpTech”) to refer to the use of distributed ledgers, smart contracts, Big Data analytics, artificial intelligence and machine learning in the corporate context and analyzes the impact of CorpTech on the future of corporate boards. We focus on the tech manifestation of agency problems within corporations and identify—after considering possible market, governance, and regulatory solutions—elements of a governance framework for the CorpTech age. In particular, we take on a prediction often found in the literature, namely that CorpTech has the potential to solve a number of corporate governance problems for good and even make boards of directors redundant. We argue that this claim is based on what we call the “tech nirvana fallacy,” or the tendency of comparing supposedly perfect machines with failure-prone humans. The inherent features of technology and corporate governance reveal that even well-programmed CorpTech leaves the core issue of corporate governance—conflicts of interest among the relevant corporate stakeholders—untouched. In the Corptech age, the key question becomes: “is the human being that selects or controls the firm’s tech conflicted?” If so, CorpTech itself will be tainted. In fact, the problems arising from the transition to a CorpTech-dominated governance environment may, in the short-term, make things even worse: insufficient understanding of the promise and perils of CorpTech and over-confidence therein may even aggravate agency problems within firms.
    ISBN: 0017-8322
  • L Enriques, Alessandro Romano and T Wetzer, 'Network-Sensitive Financial Regulation' (2020) 45 The Journal of Corporation Law 351
    Shocks that hit part of the financial system, such as the subprime mortgage market in 2007, can propagate through a complex network of interconnections among financial and non-financial institutions. As the financial crisis of 2007-2009 has shown, the consequences for the entire economy of such systemic risk materializing can be catastrophic. Following the crisis, economists and policymakers have become increasingly aware that the structure of the financial system is a key determinant of systemic risk. A wide consensus now exists among them that network theory is the natural framework for studying systemic risk. Yet, most of the existing rules in financial regulation are still “atomistic,” in that they fail to incorporate the fact that each individual institution is part of a wider network. This Article shows that policies building upon insights from network theory (network-sensitive policies) can address systemic risk more effectively than traditional atomistic policies, also in areas where an atomistic approach would seem natural, such as the corporate governance of systemically important financial institutions. In particular, we consider four prescriptions for the governance of systemically important institutions (one on directors’ liability, two on executive compensation and one on failing financial institutions’ shareholders appraisal rights in mergers) and show how making them network-sensitive would both increase their effectiveness in taming systemic risk and better calibrate their impact on individual institutions.
    ISBN: 0360-795X
  • A Dickinson, 'Assigning Priorities in the Conflict of Laws (BGL BNP Paribs SA v Teambank AG Nürnberg)' [2020] Lloyd's Maritime and Commercial Law Quarterly 191 [Case Note]
  • J Payne and Louise Gullifer, Corporate Finance Law: Principles and Policy 3rd edn (Hart Publishing 2020)
  • A Dickinson, 'Exclusively Yours (Ablynx v VHsquared)' (2020) 136 Law Quarterly Review 215 [Case Note]
  • A Romano, L Enriques and JR Macey, 'Extended Shareholder Liability for Systemically Important Financial Institutions' (2020) 69 American University Law Review 967
    Regulators generally have tried to address the problems posed by the excessive risk-taking of Systemically Important Financial Institutions (SIFIs) by placing restrictions on the activities in which SIFIs engage. However, the complexity of these institutions makes such attempts necessarily imperfect. This Article proposes to address the problem at its very source, which is the incentives that SIFI owners have to push for excessive risk-taking by managers. Building on the traditional rule of “double liability,” we propose to modify the current (general) rule limiting the liability of SIFI shareholders to the amount of their initial investments in such companies. We propose replacing the extant limited liability regime with a new system that imposes additional liability over and above what SIFI shareholders already have invested in a preset amount that varies with a SIFI’s centrality in the financial network. Our liability regime has a number of advantages. First, by increasing shareholder exposure to downside risk, it discourages excessive risk-taking. At the same time, by placing a clearly defined ceiling on shareholders’ total liability exposure, it will not obliterate shareholders’ incentives to invest in the first place. Second, the liability to which shareholders are exposed is carefully tailored to the level of systemic risk that their institution creates. Thus, our rule induces shareholders to account for the negative externality SIFIs can impose without unduly stifling such financial institutions’ role within the financial system and in the wider economy. Third, as the amount of liability is clearly defined ex ante using the rigorous tools of network theory, our rule minimizes the influence of interest groups and the impact of idiosyncratic government decisions. Last, as markets know in advance the amount of liability to which shareholders are exposed, our rule favors the creation of a vibrant insurance and derivative market so that the risk of SIFIs defaults can be allocated to those who can better bear it.
  • Louise Gullifer and J Payne, 'Intermediated securities and investor protection' (2020) Law Quarterly Review 201 [Case Note]
  • P Davies, Introduction to Company Law (3rd edn OUP 2020)
    The book analyses the mechanisms through which the law provides an organisational structure for the conduct of business. Given that structure, the book then discusses how the law seeks to reduce the costs of using it, whether these are costs for managers, shareholders as a class, non-controlling shareholders, creditors or employees, identifying the trade-offs involved. This discussion takes in both the Companies Act 2006 and various types of “soft law”, notably the Corporate Governance and Stewardship Codes. This third edition contains two new chapters: one on liability and enforcement and the other on the social function of corporate law. Both are issues that have come to prominence in the aftermath of the financial crisis of 2007 to 2009.
    ISBN: 978-0-19-885492-0
  • Edwin Peel, 'Loss of Bargain Damages' (2020) Lloyds Maritime & Commercial Law Quarterly 449
  • L Enriques, 'Pandemic-Resistant Corporate Law: How to Help Companies Cope with Existential Threats and Extreme Uncertainty During the Covid-19 Crisis' (2020) European Company and Financial Law Review 257
    This essay argues that, to address the Covid-19 crisis, in addition to creating a special temporary insolvency regime, relaxing provisions for companies in the vicinity of insolvency, and enabling companies to hold virtual meetings, policymakers should tweak company law to facilitate equity and debt injections and address the consequences of the extreme uncertainty firms are facing. After some general reflections upon the type of rules that are needed in these exceptional times, examples of temporary corporate law interventions for the emergency are provided. Specifically, rules to facilitate injections of equity capital and shareholder loans are suggested, together with relaxations of directors’ liability rules and measures to protect firms against hostile takeovers. All of these measures should apply merely by default and only for so long as the emergency lasts. The essay concludes with some thoughts about how to make normal-times corporate law ready for similar emergencies in the future. The goal is both to reduce the risk that the temporary extreme measures enacted for this crisis are made permanent under the pretence that another crisis may hit again and to have quick adaptation mechanisms already in place to respond to such a crisis.
    ISBN: 1613-2556
  • Edwin Peel, 'Penalties' in S. Worthington and W. Day (eds), Challenging Private Law: Lord Sumption and the Supreme Court 2012-2018 (Hart Publishing 2020) (forthcoming)
    An assessment of the rule against penalties after the decision of the Supreme Court in Cavendish Square Holdings v Makdessi. The paper argues that the test for a penalty continues to be governed by a comparison between the remedy agreed by the parties and the remedy which might have been ordered by the courts in the absence of any agreement of the parties. Any "broader approach" heralded by the decision in Makdessi is directed at the "interest" of the parties which might legitimately, or conceivably, be the subject of a remedy.
  • Edwin Peel, 'Rectification revisited' (2020) 136 Law Quarterly Review 205 [Case Note]
    A comment on the decision of the CA in FSHC Group Holdings Ltd v Glas Trust Corp Ltd not to follow the obiter dictum of Lord Hoffmann in Chartbrook v Persimmon Homes Ltd on the correct approach to "common mistake" rectification.
  • R Salter, 'Securities lending: does a “right of use” prevent the existence of a trust?' (2020) Journal of International Banking & Financial Law 738
    Considers the decision of the Supreme Court in Lehtimäki & Others v Cooper [2020] UKSC 33, where the company's constitution permitted the members to benefit personally from the trust assets, and considers whether the “right of use” under a prime brokerage agreement precludes the existence of a trust.