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  • R Salter (ed), The Modern Law of Guarantees (Lexis Nexis 2021) (forthcoming)
  • 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]
  • 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 2020) (forthcoming)
  • 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 (forthcoming)
  • 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
  • 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.
  • J Payne, 'The Institutional design of Financial Supervision and Financial Stability' in F Amtenbrink and C Hermann (eds), The EU Law of Economic and Monetary Union (OUP 2020)
    This paper examines the institutional design of the EU European and Monetary Union. Specifically, it analyses five different institutions that have been set up in the post-financial crisis period, namely the three European Supervisory Authorities (ESMA, EBA and EIOPA), the European Financial Stability Fund (EFSF) and the European Stability Mechanism (ESM). The creation of these organisations reflects two different strands of reaction to the financial crisis and the sovereign debt crisis which followed it. The first is a recognised need to bolster and strengthen EU-level integration and oversight of the financial markets. The second is a requirement for financial stability mechanisms to address the difficulties of the worst-hit countries, not only to provide emergency assistance, but also to avert contagion and to enhance confidence in the euro area’s financial markets. There are some important similarities between these five bodies, but also some notable differences, not least their different institutional models: the ESAs are supranational agencies in all but name, whereas the EFSF and ESM are intergovernmental bodies. This institutional distinction has important consequences for the nature and remit of the powers of the various entities, and the institutional constraints faced by these bodies impacts on their ability to perform their roles effectively and well. This paper examines these issues and explores the ways in which these bodies might seek to overcome these challenges, in order to ensure that the institutional model of the EMU is fit for purpose.
  • R Salter, 'The key banking and finance cases from the last decade: Part 1' (2020) Journal of International Banking & Financial Law 3
    A personal list of the ten cases which have had the greatest impact on the law and practice of banking and finance in the decade from 1 January 2010 to the present. (Part 1)
  • Edwin Peel, 'The Proper Law of an Arbitration Agreement' (2020) 136 Law Quarterly Review [Case Note] (forthcoming)
    A note of the decision of the Court of Appeal in Enka v Chubb [2020] EWCA Civ 574, dealing in particuar with the question of the proper law of an arbitration agreement where the curial law and the law of the main contract differ.
  • P Davies, 'THE UK STEWARDSHIP CODE 2010-2020 From Saving the Company to Saving the Planet?' (2020) European Corporate Governance Institute
    The United Kingdom introduced a Stewardship Code in 2010, followed by a slightly revised iteration in 2012 (the “first version” of the SC). It was premised upon the corporate governance advantages of engagement between institutional investors and corporate boards and was designed to redress what were perceived to be the weaknesses in the model of the monitoring board as revealed during the financial crisis. In short, the institutions were to monitor the monitor. The first version was officially branded as ineffective in a government appointed reviews at the end of 2018. It was recommended that the first version should either be abandoned or revised so as to focus more on the results of engagement. Surprisingly, the Financial Reporting Council chose not only to revise the SC in the hope of making it effective within the engagement framework, but also to expand the Code’s concept of stewardship so as to embrace environmental, social and governance matters (including climate change). This “second version” came into effect at the beginning of 2020. The purpose of this paper is to assess the chances of the second version being more successful than the first. It begins by examining the most plausible reasons for the failure of the first version, by reference to the capacity and the incentives of institutional investors to discharge the engagement function which the first version cast upon them. It concludes that the incentives and capacities were weak. Turning to predictions for the second version, it concludes that, in relation to engagement as envisaged in the first version, the second version has not effectively addressed the causes of the weakness of the first version. However, in relation to ESG factors, especially climate change, there are reasons to expect a more positive impact from the second version, mainly because governmental policy has increased the reputational incentives for institutions to exercise stewardship in this area. These reputational incentives may also be supported by changes in investors’ preferences. Overall, the second version may turn out to operate along the same lines as other changes in society rather than as an isolated reform, as with the first version. However, this optimistic prediction is conditional upon the continuance of the governmental policy and social changes which support the second version of the SC.
  • Edwin Peel, Treitel: The Law of Contract (15th edition, Sweet & Maxwell 2020)
  • J Vella, 'Value creation and the allocation of profit under formulary apportionment' in Rick Krever (ed), The Allocation of Multinational Business Income: Reassessing the Formula Apportionment Option (Kluwer Law International 2020) (forthcoming)
  • A Dickinson, A View from the Edge, paper presented at Bi-Annual Conference of the Wissenschaftliche Vereinigung für Internationales Verfahrensrecht, Hamburg, 15 March 2019
  • J Vella, M Devereux and N Johannesen, 'Can taxes tame the banks? Evidence from the European bank levies' (2019) 129 Economic Journal 3058
  • H Eidenmüller, L Enriques, G Helleringer and K van Zwieten (eds), 'Centros at 20: Regulatory Arbitrage and Beyond' (2019) 20 European Business Organization Law Review 399
    ISBN: 1566-7529
  • M Douglas, V Bath, M Keyes and A Dickinson (eds), Commercial Issues in Private International Law (Hart Publishing 2019)