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Article

Access_open The 2015 Proposal for an EU Directive on the Societas Unius Personae (SUP)

Another Attempt to Square the Circle?

Journal The Dovenschmidt Quarterly, Issue 2 2015
Keywords EU law harmonisation, single member private companies, Proposed SUP Directive, European ‘trade mark’
Authors Stephan Rammeloo
AbstractAuthor's information

    Stimulating business throughout the Single Market, not in the least for Small- and Medium-Sized Enterprises (SMEs), is one of the key priorities of the EU’s ten-year growth strategy, ‘Europe 2020’. One of the strategies to achieve this goal is the recently developed legal concept of a ‘European trademark’ for single member private limited liability companies duly established under the laws of any EU Member State and complying with preconditions required by a draft Proposal for a Directive on the Societas Unius Personae (SUP). The 2015 Compromising text, having replaced the initial 2014 Draft for a Directive requires to be analysed in view of its ‘scope’ (functional and geographical reach). Furthermore, attention is given to matters of formation and ‘long distance’ registration, share capital, internal organization and functioning of company organs, the functioning of SUP’s as stand alone companies or SUP’s embedded in company group or chain structures. Critical observations inter alia focus on relinquished provisions on the SUP’s seat as well as the powers of SUP organs and on ‘national law’ creeping in the Proposed Directive more and more at the cost of legal certainty and legal coherence between EU law instruments relevant to private limited liability companies.


Stephan Rammeloo
Associate Professor EU Company Law, Private International Law and Comparative Law, Maastricht University.
Article

Access_open Independent Supervisory Directors in Family-Controlled Publicly Listed Corporations

Is There a Need to Revisit the EU Independence Standards?

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords corporate governance, board independence, independent non-executive or supervisory directors, listed family businesses, minority expropriation problem
Authors Fabian Imach
AbstractAuthor's information

    This contribution analyzes whether the current focus of the EU regulator on empowering independent directors is effective in corporations with a concentrated (family) ownership structure. The basic hypothesis of this contribution is that, contrary to the excessively optimistic expectations of the EU regulator, there are serious inefficiencies in the concept of independent directors when it comes to concentrated (family) ownership structures. The contribution relies on a series of empirical studies indicating a positive correlation between operating performance and family influence in European stock corporations.


Fabian Imach
Fabian Imach is management consultant at Societaet CHORVS AG, Gesellschaft für disruptive Wettbewerbsgestaltung in Düsseldorf. He has previously worked for BMW AG, JAFFÉ Rechtsanwälte Insolvenzverwalter (Lawyers and Insolvency Administrators) and Porsche Consulting GmbH. He holds a Master degree from Maastricht University, Faculty of Law.
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 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 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 Business Enterprises and the Environment

Corporate Environmental Responsibility

Journal The Dovenschmidt Quarterly, Issue 4 2013
Keywords Corporate Environmental Responsibility, Environmental Due Diligence, Environmental CSR, Business enterprises and the environment, Environmental complement to Ruggie Framework
Authors Katinka D. Jesse and Erik V. Koppe
AbstractAuthor's information

    In 2011, following his 2005 initial mandate of the UN Commission on Human Rights and his extended 2008 mandate of the UN Human Rights Council, the Special Representative of the Secretary-General (SRSG) on the issues of human rights and transnational corporations and other business enterprises, Professor John Ruggie, issued the final text of the ‘Guiding Principles for the Implementation of the United Nations “Protect, Respect and Remedy Framework”‘. The 2008 Framework on Business and Human Rights and the complementing 2011 Guiding Principles consist of three pillars: the duty of states to protect human rights, the responsibility of business enterprises to respect human rights, and access to remedies for victims of human rights abuses. They currently qualify as the dominant paradigm in the corporate social responsibility (CSR) discourse, also because they now form part of various soft law and self-regulation initiatives. The Framework and Guiding Principles do not, however, specifically focus on environmental issues, but their systematic approach and structure do provide a model to address state duties and business responsibilities to care of the environment. This article is intended to complement the UN Framework and Guiding Principles on business and human rights with principles in the field of business and the environment. Hence, it is submitted that states have a customary duty to care for the environment; it is similarly submitted that business enterprises have a responsibility to care for the environment; and it is submitted that stakeholders must have access to remedies in relation to breaches of these duties and responsibilities.


Katinka D. Jesse
Dr. Katinka D. Jesse is post-doctoral research fellow at North-West University, South Africa.

Erik V. Koppe
Dr. Erik V. Koppe is assistant professor of public international law at Leiden Law School, The Netherlands. This article is partly based on research conducted by Jesse and Koppe as HUGO Fellows at the Netherlands Institute for Advanced Studies in Wassenaar in the fall of 2011.
Article

Access_open Multinationals and Transparency in Foreign Direct Liability Cases

The Prospects for Obtaining Evidence under the Dutch Civil Procedural Regime on the Production of Exhibits

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords foreign direct liability, corporate social responsibility, transparency document disclosure, Dutch Shell Nigeria case
Authors Liesbeth F.H. Enneking
AbstractAuthor's information

    On 30 January 2013, the The Hague district court rendered a final judgment with respect to a number of civil liability claims against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) that had been pursued by four Nigerian farmers and the Dutch NGO Milieudefensie in relation to various oil spills from SPDC-operated pipelines in the Nigerian Niger Delta. This case is the first Dutch example of a broader, worldwide trend towards similar transnational civil liability procedures against multinational corporations for harm caused to people and planet in developing host countries. This worldwide trend towards so-called ‘foreign direct liability cases’ and the Dutch Shell Nigeria case in particular raise many interesting socio-political as well as legal questions. This article will focus on the question what the prospects are for plaintiffs seeking to pursue such claims before a Dutch court when it comes to obtaining evidence under the Dutch civil procedural regime on the production of exhibits. This is a highly relevant question, since the proceedings in the Dutch Shell Nigeria case seem to indicate that the relatively restrictive Dutch regime on the production of exhibits in civil procedures may potentially impose a structural barrier on the access to remedies before Dutch courts of the victims of corporate violations of people and planet abroad.


Liesbeth F.H. Enneking
Liesbeth Enneking is a Postdoctoral Research Fellow at UCALL, Utrecht University’s multidisciplinary Centre for Accountability and Liability Law, and an Assistant Professor of Private International Law at Utrecht University’s Molengraaff Institute for Private Law. The author would like to thank prof. I. Giesen for comments on an earlier version of this article.
Article

Access_open Multinational Corporations and Human Rights

Civil Procedure as a Means of Obtaining Transparency

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords civil litigation, discovery, human rights, multinationals
Authors R.R. Verkerk
AbstractAuthor's information

    This article explores the degree in which civil procedural rules may promote transparancy from multinationals about human rights policies and allegations of human rights violations.


R.R. Verkerk
Remme Verkerk practices law at Houthoff Buruma (Rotterdam).
Article

Access_open The Conflict Minerals Rule

Private Alternatives?

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords corporate social responsibility, conflict minerals, codes of conduct, contract law
Authors A.L. Vytopil
AbstractAuthor's information

    This article discusses Section 1502 of the Dodd Frank Act in respect of the transparency certain American companies are to provide in respect of conflict minerals and the Rule drawn up by the Securities and Exchange Commission following this legislation. It explains the requirements it poses on companies. Moreover, it highlights some of the societal criticism in respect of the Securities and Exchange Commission Rule, the legal challenge of this Rule and the subsequent court verdict by the District Court for the District of Columbia. Finally, it elaborates upon private regulatory initiatives that could provide viable alternatives to conflict minerals legislation, and it concludes that for the Netherlands, private regulation would probably be more effective than legislation comparable to Section 1502 of the Dodd Frank Act.


A.L. Vytopil
Louise Vytopil, LL.B MA MSc, is a Ph.D.-candidate and assistant-professor at Utrecht University’s Molengraaff Institute for Private Law.
Article

Access_open The Regulation of Rating Agencies in Europe

Journal The Dovenschmidt Quarterly, Issue 2 2013
Keywords Credit Rating Agencies, Regulation No. 1060/2009, ESMA, sovereign ratings, complex products ratings
Authors Edith Weemaels
AbstractAuthor's information

    This article presents the current and future statutory framework for ratings agencies in Europe. The recent financial and economic crises dealt a fatal blow to this practice and the EU clearly intends to progress as quickly as possible when it comes to the regulation of credit rating agencies. This article examines the possibility that new EU framework serve to strengthen the position of credit rating agencies through the elimination of their unquestioned role in the markets. The author also presents existing and future European regulations and analyses the establishment and implementation of prudential supervision of the rating activity.


Edith Weemaels
Lawyer – Brussels Bar, Liedekerke Wolters Waelbroeck Kirkpatrick (Brussels), e.weemaels@liedekerke.com.
Article

Access_open Law and China’s Economic Growth

A Macroeconomic Perspective

Journal The Dovenschmidt Quarterly, Issue 1 2012
Keywords China, economic imbalance, factor markets, economic policies, law and regulations
Authors Guangdong Xu
AbstractAuthor's information

    China is now stuck in an investment-driven growth pattern that has helped it achieve excessive economic growth in the short run but at the cost of environmental quality, ordinary citizens’ welfare, and long-term economic health. Two main factors can be identified as responsible for the formation and continuation of the current growth pattern. One is economic policy, especially fiscal and financial policies, which contribute to the decline in household consumption by depressing household disposable income and reducing social services provided by the government. The other is the law and regulations that the government has used to subsidize investment and production by distorting factor markets, including markets for capital, land, labor, energy, and environment. A systematic legal and institutional reform whose purpose is to liberalize factor markets is therefore required to rebalance China’s economy.


Guangdong Xu
China University of Political Science and Law.
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