Company law : theory, structure, and operation

목차 (Table of Contents)

• CONTENTS
• Table of abbreviations = xv
• Table of Cases = xxiii
• Table of Legislation = xxxi
• Introduction = xlv
• 1. Overview of the Book = xlvi
• 2. Terminology = xlviii
• PART Ⅰ―COMPANY LAW THEORY
• 1. ECONOMICS AND THE STUDY OF COMPANY LAW = 3
• 1. The Promotion of Efficiency as a Justification for Government Intervention = 4
• Economic theory and the rational actor = 4
• Exchanges, markets, and allocative efficiency = 5
• Market failure as a justification for regulation = 6
• Clarification of the meaning of efficiency = 14
• 2. Regulation Can Give Rise to Costs as Well as Benefits = 16
• 3. The Economics of Government Regulation = 19
• 4. The Impact of Legal Rules on Private Transactions = 24
• Professor Ronald Coase and 'The Problem of Social Cost' = 24
• Examples of the limited role law can play in companies = 26
• Situations where the law matters = 28
• 5. The Company as a Nexus of Contracts = 31
• The role of the firm in economic activity = 32
• The company and other types of business enterprises : common characteristics = 36
• Basic elements in bargains between company participants = 41
• 2. KEY PARTICIPANTS IN COMPANIES = 47
• 1. Shareholders = 48
• Duration = 49
• Return = 54
• Risk = 58
• Control = 61
• Conflicts of interest = 64
• Bargaining = 65
• 2. Creditors = 69
• Duration = 69
• Return = 71
• Risk = 73
• Control = 75
• Conflicts of interest = 79
• Bargaining = 81
• 3. Employees = 82
• Duration = 84
• Return = 87
• Risk = 91
• Control = 91
• Conflicts of interest = 92
• Bargaining = 94
• 4. Directors = 95
• Duration = 98
• Return = 100
• Risk = 102
• Control = 105
• Conflicts of interest = 106
• Bargaining = 107
• 5. Management = 108
• Duration = 109
• Return = 112
• Risk = 115
• Control = 117
• Conflicts of interest = 123
• Bargaining = 124
• 3. JUSTIFICATIONS FOR STATE INTERVENTION IN COMPANY AFFAIRS = 126
• 1. Justifications for Intervention Based on Efficiency considerations = 126
• Imperfect information = 127
• Costs of contracting = 132
• Judgement problems = 134
• Negative externalities = 138
• Collection action problems and related types of strategic behaviour = 140
• 2. Arguments for Intervention Based on Considerations Other than Efficiency = 142
• Fairness = 142
• Participation = 151
• Protection of community ideals = 153
• Preservation of morality in the market system = 156
• 3. Efficiency Revisited = 158
• 4. PROBLEMS WITH STATE INTERVENTION = 163
• 1. Private Ordering, Market Forces and the Law = 163
• Regulation may replicate steps company participants take = 163
• Undermining incentives which private actors have to solve problems = 171
• Market protection for transactors = 174
• 2. Problems Associated with the Formulation and Enforcement of Laws = 178
• The role of interest groups = 178
• Time constraints = 183
• Inappropriate incentives = 187
• Lack of familiarity with the marketplace = 196
• Enforcement and implementation problems = 199
• Costs generated by regulation = 203
• 3. Freedom and Autonomy = 211
• 4. Conclusion = 213
• PART Ⅱ―STRUCTURE OF COMPANY LAW
• 5. THE CLASSIFICATION OF COMPANY LAW RULES = 216
• 1. A Typology of Company Law Rules = 218
• 2. Complexities Associated with the Classification Process = 221
• 3. Mandatory Rules = 227
• Problems with mandatory rules = 227
• Arguments for mandatory rules (ⅰ) self-defeating waivers and shareholder voting = 237
• Arguments for mandatory rules (ⅱ) regulation of third-party effects = 244
• Arguments for mandatory rules (ⅲ) achievement of goals not linked to efficiency concerns = 247
• Concluding comments = 249
• 4. Permissive Rules = 250
• The role of permissive rules = 250
• Drawbacks with permissive rules = 253
• 5. Presumptive Rules = 257
• The role and significance of presumptive rules = 257
• Pros and cons of presumptive rules = 259
• 6. Conclusion = 262
• 6. COMPANY LAW AND THE HYPOTHETICAL BARGAINING MODEL = 264
• 1. How to Apply the Hypothetical Bargaining Model―An Introduction = 264
• 2. Generalized Approach to Hypothetical Bargaining Analysis = 265
• Ascertaining which categories of company participants are involved = 265
• Isolating the dynamics likely to influence the relevant company participants = 266
• Ascertaining how company participants would deal with an issue under hypothetical bargaining conditions = 268
• Difficulties associated with formulating rules = 277
• Rule types and the hypothetical bargaining model = 285
• 3. The Individualized Approach to Hypothetical Bargaining Analysis = 291
• 4. Contracting and the Hypothetical Bargaining Model = 295
• Should there be deference to contractual terms? = 295
• The hypothetical bargaining model and information-forcing rules = 298
• 5. Conclusion : An Evaluation of the Hypothetical Bargaining Approach = 302
• The hypothetical bargaining model and efficiency = 302
• The hypothetical bargaining model and autonomy = 305
• The hypothetical bargaining model as an intellectual construct = 306
• 7. THE JUDICIARY AND COMPANY LAW = 308
• 1. Company participants and the Judiciary = 309
• Expertise = 309
• How judges define company participants' rights and obligations = 321
• Predictability = 332
• Costs = 339
• 2. Parliament and the Courts = 349
• Interpretation of legislation―what is at stake = 349
• Using statutory drafting to send signals to the judiciary = 350
• Interpretation of legislation in company law cases = 353
• Statutory measures and judicial law-making = 358
• Detailed legislation and judicial expertise = 361
• 8. SELF-REGULATION IN THE UNITED KINGDOM : AN EVALUATION = 364
• 1. Overview of the United Kingdom's Self-Regulatory System = 365
• 2. Advantages of Self-Regulation = 378
• Flexibility = 378
• Expertise = 386
• Cost = 391
• 3. The Disadvantages of Self-Regulation = 397
• Bias = 397
• Insufficient co-ordination of government policy = 405
• Enforcement problems = 412
• 4. Conclusion = 418
• 9. THE EUROPEAN UNION AND UK COMPANY LAW = 421
• 1. Overview = 422
• 2. Can There Be a Market for Incorporations in the European Union? = 426
• Legal framework = 427
• Nature of demand and supply in a market for incorporations = 431
• Demand in the EU = 432
• Supply―will the United Kingdom compete? = 435
• 3. How Would the Law Change if There Were a Market for Incorporations? = 440
• 4. Merits of a Market for Incorporations = 443
• 5. Conclusion = 450
• PART Ⅲ―OPERATION OF COMPANY LAW
• 10. SHAREHOLDERS : CONTRACTING, REMEDIES AND EQUALITY = 455
• 1. Section 14 of the Companies Act 1985 as the Basis for Litigation by Shareholders = 455
• Judicial interpretation of section 14 = 456
• Restricted enforcement of section 14―a rationale = 458
• Is reform of section 14 justified? = 461
• 2. Shareholders' Remedies in Closely Held and Publicly Traded Companies―A Rationale for a Different Approach = 463
• The law on Shareholders' remedies = 463
• Is the difference in approach for closely held and public companies justified? = 466
• How far should the courts go in granting relief with closely held companies? = 470
• 3. Equality and the Shareholder = 472
• Arguments in favour of regulation designed to achieve equality objectives = 472
• Mechanisms other than company law are better suited to the task of ensuring equal treatment = 476
• Costs associated with measures designed to ensure equal treatment may be too substantial to justify regulation = 479
• Adverse impact on welfare-enhancing conduct = 486
• Arguments in favour of equal treatment are not as compelling as they appear to be = 488
• Justifying legal rules on grounds other than equality = 492
• 11. CREDITORS : THE LAW'S TREATMENT OF THEIR RELATIONS WITH SHAREHOLDERS AND MANAGERS = 496
• 1. Limited Liability―Asset or Liability = 497
• The case for reform = 497
• The positive attributes of limited liability = 499
• Areas of concern = 504
• 2. Accounting and Auditing Standards in Small Companies = 508
• Overview of the law = 509
• Justifications for regulation = 512
• Those who run small businesses can make appropriate choices = 513
• Creditors can acquire the information they want without regulation = 515
• Costs = 519
• Conclusion = 520
• 3. Regulation of Company Management = 521
• Nature of agency costs = 521
• Regulation of transactions which increase the risk of default―an overview of the legal rules = 524
• Are the legal restrictions on corporate transactions justified? = 528
• Directors and their liability to creditors = 537
• Disqualification of directors = 548
• 12. EMPLOYEES : CONTROL AND INFLUENCE = 554
• 1. Worker Ownership = 555
• Introduction = 555
• Arguments in favour of worker ownership = 557
• Worker ownership and its efficiency shortcomings―an introduction = 560
• Monitoring of managerial conduct = 561
• Satisfying employee preferences = 564
• Difficulties with financing = 567
• Employee reservations concerning firm ownership = 569
• 2. Employee Participation in Corporate Decision-Making = 574
• Worker participation and success in the marketplace = 574
• Why do companies not demonstrate greater commitment to the workforce? = 578
• State regulation of employee participation―an efficiency rationale = 580
• Is worker participation in fact an efficient ragime? = 583
• Are extra-legal factors present which can stabilize value-maximizing arrangements which employers and workers set up? = 586
• Role of the law = 589
• Role of the European Union = 597
• 13. NON-EXECUTIVE DIRECTORS AND THE COMPANY BOARD : THE CASE FOR REFORM = 602
• 1. The Significance of the Board of Directors = 603
• 2. Is the Board of Directors Failing? = 609
• Structural problems with te board of directors = 609
• Evidence of problems associated with company boards = 611
• Is the case in favour of board failure persuasive? = 614
• 3. Will the Cure Be Worse Than the Disease? = 621
• Suggestions for reform = 621
• Reasons why reform could be counter-productive = 624
• 4. Shareholders and Reforming the Board of Directors = 630
• Reasons why changes to the board will no take place = 631
• Dynamics which will cause changes to the board of directors = 637
• 5. What Type of Intervention? = 641
• Overview of the Cadbury Report and the Code of Practice = 642
• Potential strengths and weaknesses of the Cadbury approach = 644
• Cadbury in practice = 647
• Conclusion : does Cadbury go far enough? = 650
• 14. EXECUTIVE PAY = 653
• 1. The Case for Reform = 655
• Executive pay's emergence as a prominent issue = 655
• Overview of the role directors and shareholders play in setting executive pay = 660
• Explanations of why executive pay has reached unsatisfactory levels = 666
• 2. Proposed and Recently Implemented Reforms―An Overview = 673
• 3. Executive Pay and Shareholders = 678
• Shareholders and the ideal executive pay package―an introduction = 678
• Finding suitable executive pay benchmarks = 680
• Managerial attitudes toward remuneration schemes = 685
• Will reform deliver changes which shareholders value? = 690
• 4. Reducing the Level of Executive Pay = 698
• Will strengthening the position of remuneration committees and shareholders lead to reductions in managerial remuneration? = 698
• Other means of reducing executive pay = 701
• 5. Conclusion = 706
• EPILOGUE
• 1. Economic Analysis of Company Law : Ways Forward = 709
• 2. Economic Analysis and Its Critics = 712
• Index = 715