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Article

Access_open The Essential Role of Cooperative Law

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords comparative cooperative law, organizational law, mutual purpose, cooperative identity, social function
Authors Antonio Fici
AbstractAuthor's information

    The idea that cooperative law is essential for the development of cooperatives is not new, but only lately is it spreading rapidly within cooperative circles and urging representative entities of the cooperative movement to take concrete actions. Also in light of this renewed interest towards the cooperative legal theory, this article will seek to demonstrate that recognizing and protecting a distinct identity based on a specific purpose constitute the essential role of cooperative law. The article will subsequently discuss, also from a comparative legal perspective, the nature and essence of the cooperative purpose and some related regulation issues.


Antonio Fici
Professor of Private Law at the University of Molise and of Comparative Cooperative Law at the L.U.M.S.A. of Rome.
Article

Access_open Ownership, Governance and Related Trade-Offs in Agricultural Cooperatives

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords investment constraints, collective decision-making, organizational complexity, agricultural cooperative, residual ownership rights
Authors Constantine Iliopoulos
AbstractAuthor's information

    Agricultural cooperatives represent a key institutional arrangement in the world food and agriculture industries. Understanding these business organizations by adopting multi-disciplinary perspectives serves both scholarly and societal needs. This article addresses two issues: (1) how agricultural cooperatives choose from a plethora of ownership and governance features and (2) what are the main trade-offs cooperatives face in making these choices. Both issues have important implications for the efficiency of collective entrepreneurship organizations in food supply chains and thus for food nutrition security and food quality. The article proffers observations based on the extant literature and the author’s field experience. It is concluded that agricultural cooperatives choose ownership and governance features in an attempt to attract risk capital for investments while optimizing collective decision-making efficiency. The main trade-offs that cooperatives address while making these choices are between (1) investor mentality and member-patron control, (2) organizational complexity and vagueness of ownership rights, (3) the need for risk capital and member control, (4) organizational complexity and member control and (5) management monitoring costs and the costs of collective decision-making. These observations are highly relevant for organizational scholars, cooperative practitioners and policymakers as they inform decision-making in cooperatives in more than one way.


Constantine Iliopoulos
Dr. Iliopoulos is the Director of the Agricultural Economics Research Institute and Adjunct Professor at the Agricultural University of Athens, Athens, Greece. E-mail: iliopoulosC@agreri.gr.
Article

Access_open How to Regulate Cooperatives in the EU?

A Theory of Path Dependency

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords cooperative law, company law, EU harmonization, business form, governance
Authors Ger J.H. van der Sangen
AbstractAuthor's information

    In this article, the phenomenon of path dependency has been addressed in view of the harmonization of cooperative law in the EU. The question is raised whether and how the legislative harmonization has an impact on co-operators in their efforts of setting up and maintaining efficient cooperative organizations and whether in this respect the Statute for the European Cooperative Society (hereinafter: SCE) is a helpful tool to facilitate the enhancement of national statutes on cooperatives as well as to provide the legal infrastructure to facilitate cross-border cooperation amongst and reorganizations of cooperatives in the EU.
    The case for the cooperative as a viable business form gained momentum in the EU policy debate with the development of the SCE Statute in 2003, the outbreak of the financial and economic crisis in 2008 and with the endorsement of the cooperative business concept by the United Nations and the International Labour Organization in 2012. If the sound development of cooperatives as an alternative legal business form vis-à-vis investor-owned firms is considered a policy instrument to enhance societal business activities – notably in the field of agriculture and social economy – it raises the question how cooperatives should be regulated to fulfil their function in this respect.
    The key argument presented in this article is that due to strong tendencies of path dependency a top-down approach of EU law-making was and is not a feasible option. The cooperative as a multifaceted institution requires a multifaceted approach taking into account the historical legislative developments of distinctive jurisdictions as well as the historical economic development of cooperative organizations in their specific jurisdiction. However, the existence of path dependency and the lack of regulatory arbitrage as well as regulatory competition prevent the market from generating efficient model statutes for cooperatives taking into account the specific needs of cooperatives and their co-operators.


Ger J.H. van der Sangen
Dr Ger J.H. van der Sangen is Associate Professor Company Law and Securities Law at Tilburg Law School, Department Business Law. He was part of the research team of the EU-funded project Support for Farmers’ Cooperatives. He would like to express his gratitude to all the members of the research team for sharing their insights and discussions during conference meetings in Brussels (November 2011 and 2012) and in Helsinki (June 2012), in particular J. Bijman, C. Gijselinckx, G. Hendrikse, C. Iliopoulos and K. Poppe.
Article

Access_open Can Corporate Law on Groups Assist Groups to Effectively Address Climate Change?

A Cross-Jurisdictional Analysis of Barriers and Useful Domestic Corporate Law Approaches Concerning Group Identification and Managing a Common Climate Change Policy

Journal The Dovenschmidt Quarterly, Issue 3 2014
Authors Tineke Lambooy and Jelena Stamenkova van Rumpt
Author's information

Tineke Lambooy
Tineke Lambooy is Professor Corporate Law at Nyenrode Business University and Associate Professor Corporate Social Responsibility at Utrecht University.

Jelena Stamenkova van Rumpt
Jelena Stamenkova van Rumpt, LLM, is Advisor Responsible Investment at PGGM (Dutch Asset Manager for Pension Funds).
Article

Access_open Parental Liability for Externalities of Subsidiaries

Domestic and Extraterritorial Approaches

Journal The Dovenschmidt Quarterly, Issue 3 2014
Keywords company law, group liability, comparative approach, liability matrix, statutory/judicial approaches
Authors Linn Anker-Sørensen
AbstractAuthor's information

    This paper offers a structural tool for examining various parental liability approaches for the externalities of its subsidiaries, meaning in the context of this paper, the negative environmental impact of their operations. In order to conclude that the parent is liable for externalities of subsidiaries, one must be able to bypass the corporate privileges of separate legal personality and limited liability, either within traditional company law or within alternative approaches offered by notably tort and environmental law. The overall acceptance of companies within groups as single entities, instead of recognition of their factual, often closely interlinked economic relationship, is a well-known barrier within traditional company law. The situation is exacerbated by the general lack of an extraterritorial liability approach and of enforcement of the rare occurrences of such liability within the traditional company law context. This paper explores various liability approaches found in jurisdictions worldwide mainly based on mapping papers from the international Sustainable Companies Project. The author introduces a matrix in order to systemize the different approaches, distinguishing between three levels: domestic and extraterritorial, statutory and judicial and indirect and direct liability. A proper distinction between the different liability approaches can be valuable in order to identify the main barriers to group liability in regulation and in jurisprudence.


Linn Anker-Sørensen
Research assistant in the Research Group Companies, Markets, Society and the Environment and its Sustainable Companies Project, Faculty of Law, University of Oslo (jus.uio.no/companies under Projects).
Article

Access_open Insurance as a Remedy against Financial Crisis

Journal The Dovenschmidt Quarterly, Issue 1 2014
Keywords financial crisis, systemic risk, insurance
Authors Michael Faure and Klaus Heine
AbstractAuthor's information

    To some extent, the financial crisis could be considered as comparable to a natural catastrophe. We address the question whether it might be possible to insure against financial crisis, similarly as insurance is possible in case of natural catastrophes. Thereby we extend the market mechanism as far as possible by proposing a three-layered insurance model containing self-insurance, insurance by insurance companies and insurance by the government. We argue that an advantage of this multi-layered structure is not only the provision of funds in case of a financial crisis, but also that it helps to prevent financial crisis. The preventive effect is due to market-driven check and balances between the three layers.


Michael Faure
Michael Faure is Professor of Comparative Private Law and Economics at the Erasmus School of Law, Erasmus University Rotterdam, 3000DR Rotterdam and METRO, Maastricht University, 6200 MD Maastricht, The Netherlands.

Klaus Heine
Klaus Heine is Jean Monnet Chair of Economic Analysis of European Law at the Erasmus School of Law, Erasmus University Rotterdam, 3000DR Rotterdam, The Netherlands
Article

Access_open The EU Response to the Trade in Conflict Minerals from Central Africa

Journal The Dovenschmidt Quarterly, Issue 1 2014
Keywords corporate social responsibility, conflict minerals, private regulation, public regulation, European Union
Authors Tomas Königs, Sohail Wahedi and Tjalling Waterbolk
AbstractAuthor's information

    The trade in conflict minerals has led to the eruption and conservation of conflicts and gross violations of human rights, in particular in the central African region. In response, various public and private entities have taken measures to counter this development. The purpose of this essay is to analyze how the European Union, in light of its promotion of corporate social responsibility, should regulate the behaviour of multinational companies dealing with minerals from conflict-ridden areas. In light of recent initiatives taken by the UN, the United States and the mineral-extraction industry, it is examined whether the EU should adopt public regulation or whether it should continue its promotion of private self-regulatory regimes. The authors argue that the EU should promote regulation at the level that provides the strongest incentive for companies to comply with their duties. This article shows that both private and public regulation have their limitations in regulating the trade in conflict minerals and that the EU should thus adopt a mix of both. In doing so, the development of transparency norms can be delegated to companies, stakeholders and other affected parties, while the EU could provide for an effective accountability mechanism to enforce these norms.


Tomas Königs
Tomas Königs is a graduate student of the Legal Research Master (LLM) at Utrecht University.

Sohail Wahedi
Sohail Wahedi is a graduate student of the Legal Research Master (LLM) at Utrecht University.

Tjalling Waterbolk
Tjalling Waterbolk is a graduate student of the Legal Research Master (LLM) at Utrecht University.
Article

Access_open Corporate Governance and the Great Recession

An Alternative Explanation for Germany's Success in the Post-2008 World

Journal The Dovenschmidt Quarterly, Issue 1 2014
Keywords Great Recession, Germany, corporate governance, institutional complementarity, EMU
Authors Pavlos E. Masouros
AbstractAuthor's information

    The ability of a nation to resist a crisis depends on the institutional or spatio-temporal fixes it possesses, which can buffer the effects of the crisis, switch the crisis to other nations or defer its effects to the future. Corporate governance configurations in a given country can function as institutional or spatio-temporal fixes provided they are positioned within an appropriate institutional environment that can give rise to beneficial complementarities.
    Germany seems to resist most effectively compared with other nations (be it nations of the insider or the outsider model of corporate governance) the effects of the post-2008 crisis. This article posits that this is due to an institutional complementarity between Germany's corporate governance system, its system of industrial relations and the monetary institutions of the European Monetary Union. The advent of shareholder value has blended in a beneficial way with an established system of cooperative collective bargaining, with traditional stakeholderist institutions, but also with the asymmetrical design of the EMU that benefits trade surplus countries, and this institutional complementarity has endowed Germany with a comparative advantage over other nations (particularly EU Member States) to pursue its export-led growth strategy and emerge as a champion economy amidst the crisis.


Pavlos E. Masouros
Assistant Professor of Corporate Law, Leiden University, The Netherlands; Attorney-at-Law, Athens, Greece.
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