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This "Liber Amicorum" is written in honour of Richard M. Buxbaum to
celebrate his 70th birthday. It pays tribute to his writings,
teachings, editorial and administrative work, which have
contributed immensely to the development of the international legal
order. The contributions are from international experts in the
field of commercial and economic law, corporate law, intellectual
property and business law, and give an interesting and valuable
account of current economic trends and academic thinking.
Corporate governance has become an important issue in all
industrial economies. It relates to the internal organization and
power structure of the firm, the functioning of the board of
directors both in the one-tier and the two-tier system, the
ownership structure of the firm, and the interrelationships among
management, board, shareholders and possibly stakeholders, in
particular the workforce of the enterprise and the creditors. These
interrelationships include monitoring of the management by the
board and external supervisors, and shareholders activism. This
book has grown out of a conference entitled "Comparative Corporate
Governance, An International Conference, United States - Japan -
Western Europe" which was held in Brussels on 14 June 1995. It was
organized by the Financial Law Institute of the University of
Ghent, and the Study Centre on Groups of Enterprises in Brussels
under the scientific direction of Eddy Wymeersch. The book contains
the contributions by the speakers in an enlarged and updated form
together with source material and references. The editors have
collected a selection of 18 documents on corporate governance from
seven countries (United Kingdom, USA, Canada, France, Germany, the
Netherlands and Belgium). These documents date from the 1990s, most
of them from 1995 and 1996, and are to be made available more
easily to business and academia in other countries than the one in
which they have been elaborated. They offer a wealth of data,
insights, self-regulatory experiences and legislative proposals
which show that, despite all the national deep-rooted differences,
the core problems are very similar indeed.
The volume contains 23 articles by international experts, both
scholars and practioners dealing with the development of
institutional investors (such as banks, insurances, investment
companies, pension funds etc.), their investment and voting
policies, the impact on managements of the companies concerned and
related issues. The consequences of the international development
on capital markets as well as policy implications for the
respective national legislations are treated.
The European Commission is already preparing the future framework
of not-for-profit organizations which will be available to
Europeans. The aim of the European Foundation Project is to develop
the legislative draft for the legal form of a European Foundation.
A team of experts in comparative law from across Europe,
commissioned by the Bertelsmann Foundation, the Compagnia di San
Paolo, and the ZEIT-Stiftung Ebelin and Gerd Bucerius, has
undertaken feasibility research, and developed a proposal. The
resulting draft legislation is clearly presented here in a way
which makes it easy for the reader to locate information on
specific legal issues. The draft is supported by comprehensive
explanatory chapters, as well as comparative chapters on each issue
which cover European countries, the USA and China. This book lays
the groundwork for policy and advocacy initiatives in the European
foundation and the not-for-profit sector.
Zwei aktuellen Themen von hoher kreditwirtschaftlicher Tragweite
hat die Bankrechtliche Vereinigung - Wissenschaftliche Gesellschaft
fA1/4r Bankrecht e.V. ihren Bankrechtstag 2001 in Kiel gewidmet: a
žEntgeltklauseln in der Kreditwirtschafta und a že-Commerce von
Kreditinstitutena .Die Entgeltgestaltung von Kreditinstituten auf
der Grundlage von Allgemeinen GeschAftsbedingungen hat inzwischen
die Rechtsprechung seit mehr als zehn Jahren intensiv beschAftigt,
steht aber immer noch, z.B. neuerdings hinsichtlich
Zinsanpassungsklauseln, im Vordergrund des Interesses. Einerseits
spielt es eine entscheidende Rolle, ob vom Entgelt fA1/4r eine
vereinbarte Leistung ausgegangen werden kann oder ob durch eine
Nebeneinrede Kosten A1/4berwAlzt werden. Andererseits sollen
Klauseln A1/4ber Entgelte und ihre A"nderung hinreichend bestimmt
und fA1/4r den Kunden nachvollziehbar sein.Der e-Commerce von
Kreditinstituten gewinnt infolge der technischen Entwicklung,
namentlich etwa fA1/4r Anwendungen des online-banking, steigende
Bedeutung und bringt zahlreiche Rechtsfragen mit sich, z.B.
hinsichtlich der VertragsabschlA1/4sse bei Kommunikation im
Internet und der dabei zu wahrenden Datensicherheit.
Zwei aktuellen Themen von hoher kreditwirtschaftlicher Tragweite
hat die Bankrechtliche Vereinigung - Wissenschaftliche Gesellschaft
fA1/4r Bankrecht e.V. ihrem Bankrechtstag 2002 in Leipzig gewidmet.
Neben den Auswirkungen der Schuldrechtsreform auf das Recht der
BankgeschAfte wurde die unternehmensinterne Wissenszurechnung
behandelt. 1. Abteilung: Neues Schuldrecht und BankgeschAfte
Mathias Habersack, Mainz: Auswirkungen der Schuldrechtsreform auf
das Recht der BankgeschAfte; Herbert Schimansky, Marxzell: Das
Recht der Aoeberweisung ab 1. Januar 2002; Ahrend Weber, Berlin:
Das neue Schuldrecht in der kreditwirtschaftlichen Praxis 2.
Abteilung: Wissenszurechnung bei Kreditinstituten Josef Drexl,
MA1/4nchen: Wissenszurechnung im unabhAngigen und
Konzernunternehmen- Zivil-, gesellschafts- und bankrechtliche
Aoeberlegungen; Gerd Nobbe, Karlsruhe: Wissenszurechnung in der
Rechtsprechung des Bundesgerichtshofs; JA1/4rgen SchrAter,
Frankfurt am Main: Wissenszurechnung aus der Sicht der
kreditwirtschaftlichen Praxis
Mediation provides an attractive alternative to resolving disputes
through court proceedings. Mediation promises just results in the
interest of all parties concerned, a reduction of the court
caseload, and cost savings for the parties involved as well as for
the treasury. The European Directive on Mediation has given
mediation in Europe new momentum by establishing a common framework
for cross-border mediation. Beyond Europe, many states have tried
in recent years to answer the question whether, and if so, how
mediation should be regulated at a national and international
level. The aim of this book is to promote the understanding and
discussion of regulatory issues by presenting comparative research
on mediation. It describes and analyses the law and practice of
mediation in twenty-two countries. Europe is represented by
chapters on mediation in Austria, Bulgaria, England, France,
Germany, Greece, Hungary, Ireland, Italy, the Netherlands, Norway,
Poland, Portugal and Spain. The world beyond Europe is analysed in
chapters on mediation in Australia, Canada, China, Japan, New
Zealand, Russia, Switzerland and the USA. Against this background,
further chapters on fundamental issues identify possible regulatory
models and discuss central principles of mediation law and
practice. In particular, the work considers harmonisation and
diversity in the law of mediation as well as the economic and
constitutional problems associated with privatising civil justice.
To the extent available, empirical research is used as a point of
reference in the critical analysis.
Increased regulatory competition has sharpened the comparative
awareness of advantages or disadvantages of different national
models of political economy, economic organization, governance and
regulation. Although institutional change is slow and subject to
functional complementarities as well as social and cultural
entrenchment, at least some features of successful modern market
economies have been in the process of converging over the last
decades. The most important change is a shift in governance from
state to the market. As bureaucratic ex-ante control is replaced by
judicial ex-post control, administrative discretion is replaced by
the rule of law as guidelines for the economy. Furthermore, at
least to some extent, public enforcement is being reduced in favor
of private enforcement by way of disclosure, enhanced liability,
and correspondent litigation for damages. Corporatist approaches to
governance are giving way to market approaches, and outsider and
market-oriented corporate governance models seem to be replacing
insider-based regimes. This transition is far from smooth and poses
a daunting challenge to regulators and academics trying to redefine
the fundamental governance and regulatory setting. They are
confronted with the task of making or keeping the national
regulatory structure attractive to investors in the face of
competitive pressures from other jurisdictions to adopt
state-of-the-art solutions. At the same time, however, they must
establish a coherent institutional framework that accommodates the
efficient, modern rules with the existing and hard-to-change
institutional setting. These challenges - put in a comparative and
interdisciplinary perspective - are the subject of the book. As a
reflection of the transnationality of the issues addressed, the
world's three leading economies and their legal systems are
included on an equal basis: the EU, the U.S., and Japan across each
of the subtopics of corporations, bureaucracy and regulation,
markets, and intermediaries.
The business corporation is one of the greatest organizational
inventions, but it creates risks both for shareholders and for
third parties. To mitigate these risks, legislators, judges, and
corporate lawyers have tried to learn from foreign experiences and
adapt their regulatory regimes to them. In the last three decades,
this approach has led to a stream of corporate and capital market
law reforms unseen before. Corporate governance, the system by
which companies are directed and controlled, is today a key topic
for legislation, practice, and academia all over the world.
Corporate scandals and financial crises have repeatedly highlighted
the need to better understand the economic, social, political, and
legal determinants of corporate governance in individual countries.
Comparative Corporate Governance furthers this goal by bringing
together current scholarship in law and economics with the
expertise of local corporate governance specialists from
twenty-three countries.
This book investigates the relationship between company law, securities markets and securities regulation. The purpose of this investigation is to try and determine whether listed companies should be treated differently by company law from other companies. The issues here raise questions about corporate governance, the relative power of regulators and markets and the effect of market forces on regulators.
The economic importance of the non-profit sector is growing rapidly
in the USA and Europe. However, the law has not kept abreast with
its development. The European Court of Justice has extended certain
freedoms of the EC Treaty to non-profit organisations, and more
case law is expected to follow in the near future, but the
observations, theories, solutions and legal and non-legal rules in
this field are manifold. The chances of harmonising the law on a
European level are slim. Despite these differences, a common core
of international corporate governance problems and regulatory
solutions can be seen. This volume of essays brings together a
variety of international experts from both corporate governance and
governance of non-profit organisations to compare the two areas and
explore the lessons that can be learned regarding comparative
corporate governance for non-profit organisations.
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