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Article

Access_open The Norm of Integrity in Corporate Governance Codes: Could It Be Made Enforceable?

Journal The Dovenschmidt Quarterly, Issue 2 2015
Keywords corporate governance, integrity, legal strategies, Goldman Sachs
Authors B.T.M. Steins Bisschop
AbstractAuthor's information

    The faring of Goldman Sachs during the financial crisis of 2008 is discussed against the background of legal instruments that were employed to avoid its failure. This discussion leads to the conclusion that in this case, the limits of classical legal instruments were reached. To further good corporate governance, the legal relevance of the term ‘integrity’ is explored. It is concluded that the legal term of integrity is used universally in corporate governance codes, but is not operational and therefore not enforceable. An attempt is made to redefine this general principle into a more operational term. This is tested in the case of Goldman Sachs’ executive Jon Winkelried. It is assumed that he has violated the standard of integrity but also that there were no enforceable legal means to sanction his behaviour. The conclusion is that the more operational interpretation of the term integrity could, in this case, have resulted in an enforceable legal instrument to sanction behaviour that is contrary to the norm of integrity. This operational term of integrity could aid in the debate on furthering good corporate governance through enforceable legal strategies.


B.T.M. Steins Bisschop
Prof. Dr. Bas T.M. Steins Bisschop holds a chair Corporate Law and Governance at the Faculty of Law of Maastricht University and a chair Corporate Law at Nyenrode Business University. He is partner of a boutique law firm in The Hague, The Netherlands.
Article

Access_open Directors’ Disqualification in the Netherlands

An International Comparative Re-Evaluation of an Amended Disqualification Proposal

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords directors’ disqualification, directors’ liability, fraud, company law, insolvency law
Authors Tom Reker
AbstractAuthor's information

    In response to the effects of the global financial crisis on bankruptcy tendencies and the role of fraudulent company directors within that context, the Dutch government has introduced a proposal for a civil law directors’ disqualification instrument. This proposal aims to prevent both fraudulent conduct (by barring directors) and financial harm to corporate stakeholders, as well as to safeguard competitiveness and the trust which is necessary for effective trade. The fact that Dutch criminal law already allows for disqualification of directors in certain circumstances, which are partly similar to those in the proposal, raises doubts about the necessity of a civil law equivalent. This article concludes that the current proposal seems to have lost value vis-à-vis an earlier draft due to alterations to the disqualification and exculpation criteria, which may result in an overlap of the civil law and criminal law instruments. Consequently, there is a more pressing need for demarcation and reallocation of certain aspects of the proposal. By comparing the proposal with foreign (UK, US, Australian and German) counterparts, several suggestions are formulated to both counteract the overlap which the proposal may cause in Dutch law and to contribute to a model of effective disqualification instruments in general.


Tom Reker
Tom Reker recently graduated from the Leiden Law School, Leiden University, Leiden, The Netherlands. Email: tomreker_1@hotmail.com.
Article

Access_open Corporate Social Responsibility via Shareholders’ Proposals

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords corporate social responsibility, shareholders, Rule 14a-8, social proposals, strategy
Authors Maria Paz Godoy Uson
AbstractAuthor's information

    Can shareholders’ proposals be considered as a mainstream alternative to incorporate social and environmental policies into the core businesses strategy? Proposing non-financial resolutions at the general meeting of shareholders is a form of shareholders’ activism that is shaping company’s direction. The American court case Lovenheim v. Iroquois Brands, Ltd. confirms that social and environmental issues, when significantly related to the core business, can give rise to new business directions firmly promoted by shareholders, resting authorial power to the board of directors in conducting the company’s direction. The US SEC Rule 14a-8 is widely used by social activists and institutional investors to influence the direction of business in becoming more sustainable. In virtue of the American Rule 14a-8, shareholders may include proposals in the company’s proxy materials and, thereby, compel a vote on the issue at the annual shareholders’ meeting. The result is that American shareholders’ proposals are being considered as an effective gateway to improve corporations’ social and environmental behaviour. This article examines, from a comparative perspective, the further developments of shareholders’ social proposals with the attempt to incorporate social and environmental policies into the core business. The article also suggests that the increasing demand of social proposals promoted by American shareholders versus the limited activity of shareholders’ proposals in Continental European jurisdictions is precipitating the process of converge between the main corporate governance models; the shareholder-oriented model and the stakeholder-oriented model, respectively. The issue of CSR via shareholders’ proposals as presented here is primarily based on literature and various cases related to SEC 14a-8, more in particular on lessons drawn from Lovenheim v. Iroquois Brands, Ltd.


Maria Paz Godoy Uson
PhD Fellow Maastricht University.
Article

Access_open EU Law Reform: Cross-Border Civil and Commercial Procedural Law and Cross-Border Insolvency Law

Journal The Dovenschmidt Quarterly, Issue 2 2014
Keywords Private International Law, Commercial and Insolvency Law, EU Law reforms
Authors S.F.G. Rammeloo
AbstractAuthor's information

    Business contractors increasingly find themselves involved in a private or commercial law relationship with cross-border elements. In case commercial disputes have to be adjudicated in court proceedings questions to be answered are: the court of which legal order has competence, the law of which country shall be applied, and is a court order from a foreign legal order enforceable or not? The strive for a (European) Single Market presupposes the breaking down of (procedural as well as substantive) legal barriers emanating from the cross-border nature of private law relationships, notably business transactions.
    This contribution, concentrating on tomorrow’s European PIL in notably the area of civil procedural law, highlights the first and the third question from the perspective of the upcoming entry into force (10 January 2015) of EU Regulation No. 1215/2012 concerning jurisdiction and recognition and enforcement of judgments in civil and commercial matters and the proposed amendments to EU Regulation No. 1346/2000 on cross-border Insolvency Proceedings.


S.F.G. Rammeloo
Associate Professor EU Private International Law and Comparative Company Law – Faculty of Law, Maastricht University, the Netherlands.

Michel Kallipetis
Michel Kallipetis QC FCIArb is the former Head of Littleton Chambers, and has 40 years’ experience as a practising barrister in the field of general commercial, professional negligence and employment work.
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 The Quest for Behavioural Antitrust

Beyond the Label Battle, Towards a Cognitive Approach

Journal The Dovenschmidt Quarterly, Issue 2 2013
Keywords antitrust, behavioural economics, cognitive economics and law, predatory pricing, intent
Authors Luca Arnaudo
AbstractAuthor's information

    Over the past two decades behavioural economics has gained widespread consensus, and, as a consequence, is affecting many areas of law and economics. Antitrust is currently providing an interesting case study of this cultural-academic trend with a growing number of articles and comments focusing on “behavioural antritrust”. This article considers the state of the art of the behavioural approach to antitrust, taking the case of predatory pricing as useful test-bed for better evaluating practical perspectives of such an approach. The article suggests a “step beyond” by sketching a cognitive upgrade of antitrust. This move is coherent with a broader cognitive law framework that is in line with what is happening within contemporary economic theory.


Luca Arnaudo
Luca Arnaudo, Ph.D. Italian Competition Authority, Investigative Directorate Rome. This article benefited from comments and criticism from Harry Gerla, Giacomo Luchetta, Roberto Pardolesi, Maurice Stucke, participants at the VII National Convention of the Italian Society of Law and Economics, and two anonymous referees; usual disclaimers apply. Please send any comments to lucarnaudo@gmail.com.
Article

Access_open A Description of the Historical Developments in Standard Setting and Regulations for Auditors and the Audit Firms in an International Perspective

Journal The Dovenschmidt Quarterly, Issue 2 2013
Keywords Audit profession, international audit regulations, public-interest entities, historical developments
Authors Paul van der Zanden and Peter M. van der Zanden
AbstractAuthor's information

    The article discusses the historical developments within the audit profession as well as the developments in the rules and regulations relating to this profession. It does so in an international perspective. The authors compare the traditionally more Anglo-Saxon oriented approach with the traditionally more continental European approach. They discuss the influence and impact of these different approaches on each other as well as the impact of this process on regulation on a European level and implementation thereof on a local level. The developments in the Netherlands, which evidence this process, are used as an illustration. Throughout the article the authors also make some critical observations and notes with respect to the developments discussed.


Paul van der Zanden
Paul van der Zanden, Attorney at law, Banning N.V.

Peter M. van der Zanden
Peter M. van der Zanden, Emeritus professor Financial Accounting and former partner Ernst & Young.

    In this article a non-binding global standard for solution of cross-border insolvency proceedings is introduced. These Global Principles for Cooperation in International Insolvency Cases can be used both in civil-law as well as common-law jurisdictions, and aim to cover all jurisdictions in the world. They are addressed to judges, insolvency practitioners and scholars, and aim to contribute to an improved global architecture of international insolvency.


Bob Wessels
Prof. Dr. Bob Wessels is an independent legal counsel in Dordrecht, The Netherlands, and professor International Insolvency Law, University of Leiden, School of Law. He can be reached at: info@bobwessels.nl.
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