0521876753 cambridge university press convergence in shareholder law jan 2008

This page intentionally left blank CONVERGENCE IN SHAREHOLDER LAW On the one hand, it can be argued that the increasing economic and political interdependence of countries has led to the convergence of national legal systems On the other hand, advocates of the counterhypothesis maintain that this development is both unrealistic and unnecessary Mathias Siems examines the company law of the UK, the USA, Germany, France, Japan and China to see how this issue affects shareholder law The author subsequently analyses economic and political factors which may or may not lead to convergence, and assesses the extent of this development Thus, Convergence in Shareholder Law not only provides a thorough comparative legal analysis but also shows how company law interconnects with political forces and economic development and helps in evaluating whether harmonisation and shareholder protection should be enhanced mathias m siems is a Reader in Commercial Law at the University of Edinburgh and a Research Associate at the Centre for Business Research, University of Cambridge international corporate law and financial market regulation Recent years have seen an upsurge of change and reform in corporate law and financial market regulation internationally as the corporate and institutional investor sector increasingly turns to the international financial markets This follows large-scale institutional and regulatory reform after a series of international corporate governance and financial disclosure scandals exemplified by the collapse of Enron in the US There is now a great demand for analysis in this area from the academic, practitioner, regulatory and policy sectors The International Corporate Law and Financial Market Regulation series will respond to that demand by creating a critical mass of titles which will address the need for information and high quality analysis in this fast developing area Series Editors Professor Eilis Ferran, University of Cambridge Proessor Niamh Moloney, University of Nottingham Professor Howell Jackson, Harvard Law School Editorial Board Professor Marco Becht, Professor of Finance and Economics at Universit´e Libre de Bruxelles and Executive Director of the European Corporate Governance Institute (ECGI) Professor Brian Cheffins, S.J Berwin Professor of Corporate Law at the Faculty of Law, University of Cambridge Professor Paul Davies, Cassel Professor of Commercial Law at the London School of Economics and Political Science Professor Luca Enriques, Professor of Business Law in the Faculty of Law at the University of Bologna Professor Guido Ferrarini, Professor of Law at the University of Genoa and Honorary Professor, Faculty of Law, University College London Professor Jennifer Hill, Professor of Corporate Law at Sydney Law School Professor Klaus J Hopt, Director of the Max Planck Institute of Comparative and International Private Law, Hamburg, Germany Professor Hideki Kanda, Professor of Law at the University of Tokyo Professor Colin Mayer, Peter Moores Professor of Management Studies at the Saăd Business School and Director of the Oxford Financial Research Centre James Palmer, Partner of Herbert Smith, London Professor Michel Tison, Professor at the Financial Law Institute of the University of Ghent Andrew Whittaker, General Counsel to the Board at the UK Financial Services Authority Professor Eddy Wymeersch, Chairman of the Committee of European Securities Regulators (CESR), Co-Chair of the CESR-European Central Bank Working Group on Clearing and Settlement, and part time Professor of Commercial Law, University of Ghent, Belgium CONVERGENCE IN SHAREHOLDER LAW MATHIAS M SIEMS CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521876759 © Mathias Siems 2008 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2007 ISBN-13 978-0-511-39307-5 eBook (EBL) ISBN-13 978-0-521-87675-9 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate CONTENTS Preface and acknowledgments List of abbreviations x Table of cases xix Table of legislation xxiii Introduction page ix part i The object and course of the investigation I II III IV V Dimensions of convergence in shareholder law The spatial dimension: the legal systems covered The objective dimension: the shareholder of a joint stock company The temporal dimension 17 The methodological dimension 23 Summary 26 part ii The status quo of convergence Legal bases 31 I II III IV V International and regional law 31 Statute law and case law 34 Company and securities law 37 Self-regulation and state regulation Conclusion 59 Bases for a shareholder typology I II III The shareholder in the theoretical debate Real types of shareholder 64 Conclusions 66 v 45 60 60 10 vi contents I II III IV V The ‘shareholder as such’ 68 The profit-oriented shareholder 68 The active shareholder 87 The informed shareholder 120 The anonymous shareholder 136 Conclusions to this chapter 147 The shareholder in the power structure of the company I II III IV The deciding shareholder The protected shareholder The litigating shareholder Conclusions to this chapter 150 174 210 222 Conclusions to Part II 224 I II III Divergence and convergence 224 Globalization and Americanization Convergence and artificial convergence 149 226 228 part iii Developmental trends and patterns I II III IV I II III IV V I II III IV V VI Bases 231 The dependency of shareholder law Regulatory levels of shareholder law Regulatory forms at the national level Conclusions to this chapter 248 Convergence through congruence 231 239 244 250 General cultural and economic-policy approximation The convergence of legal cultures 255 Internationalization of the economy 263 Approximation of shareholder structures 277 Legislative responses 290 Convergence through pressure 250 297 Pressure from company founders 297 Pressure from management 307 Pressure from shareholders 310 Pressure from other interest groups 314 Pressure from international organizations and foreign states Legislative responses 317 316 contents 10 I II vii Future convergences in shareholder law 336 The ‘shareholder as such’ 336 The shareholder in the power structure of the company 11 Conclusions to Part III I II III Re-regulation 366 Convergence forces 367 Changes in future law 368 366 part iv Conclusion 12 Convergence as a model for the future I II III IV Convergence ‘from above’ 373 Convergence ‘from below’ 381 The object of convergence in shareholder law Conclusion 395 13 Summary of principal findings References 401 Index 451 396 373 391 353 ... International Financial Law Review International Financial Reporting Standards The International Lawyer International Monetary Fund International Journal of Business International Review of Law. .. Law Review University of Cincinnati Law Review UC Davis Law Review UCLA Pacific Basin Law Journal University of Pennsylvania Journal of International Economic Law University of Pennsylvania Law. .. Working Group on Clearing and Settlement, and part time Professor of Commercial Law, University of Ghent, Belgium CONVERGENCE IN SHAREHOLDER LAW MATHIAS M SIEMS CAMBRIDGE UNIVERSITY PRESS Cambridge,