Liquidating a remainder interest: simplifying personal finance

There are many ways in which decedents leave property in trust for their heirs. One technique is to grant a life estate to surviving children. The purpose of this paper is to describe verbally, and through example, an approach to liquidating a life estate. This simplification in personal finance involves a “buyout” of the interests of the remaindermen. The result is dissolution of the trust, leaving the income beneficiaries to manage, as owner in fee, the remaining assets as they wish, without the expense and complexity associated with maintaining a trust.     

Corporate assets as a trust: for whom are corporate officers trustees in insolvency? the role of incentives in maintaining the trust

Uncertainty is a constant theme when corporations are in financial distress. Yet any successful restructuring of an insolvent corporation requires numerous stakeholders, including creditors, employees and suppliers, repose some degree of trust in those corporate officers who are trying to continue to operate the firm while restructuring it into a viable entity. This article looks at the issue of the positive and negative incentives that can be generated for corporate officers and directors from both their continuing control of corporate assets and their potential personal liability arising from corporate activity both before and after the corporation became insolvent. The potential role these incentives can play in providing a basis for the trust needed to meet the other governance challenges that arise in a restructuring is reviewed in the context of recent developments in Canada concerning the duties of corporate directors to creditors during insolvency. Also reviewed is the role of directors' insurance and indemnification in altering the incentives' effects on directors' behavior. Finally a critical appraisal is given of the present legal regime's provision for compromise of claims against corporate officers during restructuring, as well as the proposal to amend the law to allow complete exoneration of corporate directors from certain liabilities on insolvency. The article urges caution in altering the effects of incentives that may create the necessary basis for trust in the distressed corporation's officers amongst those stakeholders whose co‐operation is crucial to restructuring. Copyright © 2003 John Wiley & Sons, Ltd.     

Die Rechtsstellung der Prämien-, Bedingungs- und Deckungsstocktreuhänder nach dem VVG und dem VAG

The legal statuses of ?trustee for premium changes“, ?trustee for condition changes“ and ?trustee for coverage fund“ are comparable. All of them act under private law. Their function is slot in ahead of the grievance control of the supervising agency. The trustees are supposed to relieve the supervising agency and to inform it about the competitive practices of the insurance companies. The legal provisions concerning the trustees for premium and condition changes as stated in the VAG rank equally with those stated in the VVG. The rights to adapt contracts stated in §§ 172 and 178 g VVG have the characteristics of a one-sided right according to § 315 BGB. These rights allow the insurance company to pass on the risk of future changes of actuarial bases. Under private law, the independence of the trustees is merely a formal condition. Their declaration of consent has to include the reasons for the consent.     

On trust as a commodity and on the grammar of trust

I look at `trust' in the light of two constructions taken from economic science: general competitive analysis and the theory of games. I draw on Baier's anti-contractarian perspective, as well as on one informed by Wittgenstein's writings. The former focuses on relations between inherently unequal and asymmetrical individuals, while the latter draws on and revolves around the imperative in the Philosophical Investigations: “Let the use teach you the meaning” [p. 212; also p. 220]. I try to spell out how the choice of language has epistemological implications: for an analysis of trust, for the trustworthiness of the scientific constructions I use for analyzing trust, and thereby, more generally, for defining `ourselves' and our `form of life.'     

An analysis of gains to acquiring firm's shareholders: The special case of REITs

This study uses capital market data to measure the effects of REIT mergers on the wealth of the acquiring trust's shareholders. A significant increase in shareholder wealth is detected. This differs from the findings of other acquisition studies. The primary source of the value gain seems to be improved management of the acquired trust's assets.     

Reconciling conflict: The role of accounting in the American Indian Trust Fund debacle

In 1887, the United States Congress broke American Indian Tribal lands into allotments which it held and controlled “on behalf” of individual American Indians in trust funds. The following century has been marked by allegations of fraud, mismanagement and accounting failures prompting repeated calls for reform, none very successful. As a result, neither the federal government nor trust holders themselves are sure whether the account balances are $7 or $100 billion currently.In 1994, Congress passed yet another attempt to reconcile the American Indian Trusts. This time, legislation spelled out the responsibility of the Secretary of the Interior (the department in charge of the trust accounts) to provide a complete “historical” accounting including accurate reports of balances, and to ensure that future payments of principal and interest were accurate and timely. More than 10 years later, the Interior reported its progress in a 24-page brochure that defended the Interior's narrowed definition of “historical” and its decision to limit its reconciliation to accounts that were open on 1994 or later. In the brochure, the Interior argued that its limited definition of historical and any other shortcoming in the Interior's efforts were acceptable given the cost of a more complete accounting. Finally, the brochure argued that the Interior Department had fulfilled its role as trustee and, as such, is the good guy in the conflict over these accounts. It is the Interior's American Indian Trust holders who are unreasonable troublemakers.In this paper, we examine the Interior's brochure and locate it within the larger conflicted relations between American Indians and the federal government. We are interested in the Interior's narrow vision of historical accounting, and the role this narrowness might play in deepening or resolving centuries long conflicts. We argue that the brochure provides an example of how parties in dispute over economic resources may attempt to frame or control the accounting process itself as a way to control those conflicts and limit the possible meanings that could be accorded to accountability within a particular set of relations. This episode illustrates how the ability to frame accounting definitions, formulations, and boundaries becomes a powerful means of controlling the final allocation of both dollars and political privilege. We conclude by accentuating the limitations of accounting in restoring a sense of justice and “balance” to relationships that embody uneven access to power and long-standing conflicts over economic claims.     

Beyond EVA

A former partner of Stern Stewart begins by noting that the recent acquisition of EVA Dimensions by the well‐known proxy advisory firm Institutional Shareholder Services (ISS) may be signaling a resurgence of EVA as a widely followed corporate performance measure. In announcing the acquisition, ISS said that it's considering incorporating the measure into its recommendations and pay‐for‐performance model. While applauding this decision, the author also reflects on some of the shortcomings of EVA that ultimately prevented broader adoption of the measure after it was developed and popularized in the early 1990s. Chief among these obstacles to broader use is the measure's complexity, arising mainly from the array of adjustments to GAAP accounting. But even more important is EVA's potential for encouraging “short‐termism”—a potential the author attributes to EVA's front‐loading of the costs of owning assets, which causes EVA to be negative when assets are “new” and can discourage managers from investing in the business. These shortcomings led the author and his colleagues to design an improved economic profit‐based performance measure when founding Fortuna Advisors in 2009. The measure, which is called “residual cash earnings,” or RCE, is like EVA in charging managers for the use of capital; but unlike EVA, it adds back depreciation and so the capital charge is “flat” (since now based on gross, or undepreciated, assets). And according to the author's latest research, RCE does a better job than EVA of relating to changes in TSR in all of the 20 (non‐financial) industries studied during the period 1999 through 2018. The article closes by providing two other testaments to RCE's potential uses: (1) a demonstration that RCE does a far better job than EVA of explaining Amazon's remarkable share price appreciation over the last ten years; and (2) a brief case study of Varian Medical Systems that illustrates the benefits of designing and implementing a customized version of RCE as the centerpiece for business management. Perhaps the most visible change at Varian, after 18 months of using a measure the company calls “VVA” (for Varian Value Added), has been a sharp increase in the company's longer‐run investment (not to mention its share price) while holding management accountable for earning an adequate return on investors’ capital.     

Women's Liberation as a Financial Innovation

In one of the greatest extensions of property rights in human history, common law countries began giving rights to married women in the 1850s. Before this “women's liberation,” the doctrine of coverture strongly incentivized parents of daughters to hold real estate, rather than financial assets such as money, stocks, or bonds. We exploit the staggered nature of coverture's demise across U.S. states to show that women's rights led to shifts in household portfolios, a positive shock to the supply of credit, and a reallocation of labor toward nonagriculture and capital‐intensive industries. Investor protection thus deepened financial markets, aiding industrialization.     

ESG Investing in Graham & Doddsville

The author describes how and why the world's best “business value investors” have long incorporated environmental, social, and governance (ESG) considerations into their investment decision‐making. As the main source of value in companies has increasingly shifted from tangible to intangible assets, many followers of Graham & Dodd have delivered exceptional investment results by taking an “earnings‐power” approach to identifying high‐quality businesses—businesses with enduring competitive advantages that are sustained through significant ongoing investment in their core capabilities and, increasingly, their important non‐investor “stakeholders.” While the ESG framework may be relatively new, it can be thought of as providing a lens through which to view the age‐old issue of “quality.” Graham & Dodd's 1934 classic guide to investing, Security Analysis, and Phil Fisher's 1958 bestseller, Common Stocks and Uncommon Profits, both identify a number of areas of analysis that would today be characterized as ESG. Regardless of whether they use the labels “E,” “S,” and “G,” investors who make judgments about earnings power and sustainable competitive advantage are routinely incorporating ESG considerations into their decision‐making. The challenge of assessing a company's sustainable competitive advantage requires analysis based on concepts such as customer franchise value, as well as intangibles like brands and intellectual property. For corporate managers communicating ESG priorities, and for investors analyzing ESG issues, the key is to focus on their relevance to the business. In this sense, corporate reporting on sustainability issues should be viewed as analogous to and an integral part of financial reporting, with a management focus on materiality and relevance (while avoiding a “promotional” approach) that is critical to credibility.     

地方政府举债影响工业经济增长的空间效应研究

通过构建了地方政府举债影响工业经济增长的理论模型,并分析两者呈正向相关的作用机制;基于空间关联模型,采用2010-2015年全国30个省份地方政府债务的面板数据,对地方政府举债的工业经济增长效应进行实证研究.结果表明:(1)地方政府举债对工业经济增长具有显著的促进作用.地方政府通过对国有土地的绝对垄断来经营城市,利用土地抵押融资来大规模举债,并改善城市基础设施吸引投资,促进工业经济增长;(2)地方政府举债对地区工业经济增长的溢出效应不明显.地方政府债务主要投向了市政建设、交通运输等基础设施建设领域,对邻近地区的工业经济发展很难起到推动作用.     

Optimal Forbearance of Bank Resolution

This paper analyzes a regulator's optimal strategic delay of resolving banks when the regulator's announcement of the intervention delay endogenously affects the depositors' run propensity. Given intervention, the regulator either liquidates the remaining illiquid assets (“prompt corrective action”) or continues managing the assets at a reduced skill level (“resolution under receivership”). In either case, I show that if the regulator tolerates fewer withdrawals until intervention, the depositors may react by preempting the regulator: they run on the bank more often ex ante. A policy of never intervening can leave the bank more stable than a conservative intervention policy.     

Insolvency proceedings from a sustainability perspective

Sustainability is a wide concept including environmental, economic, social/culture, and political dimensions. Currently, sustainability research is a rich scientific discipline producing a significant number of research papers. However, sustainability in the context of insolvency proceedings has attracted little research compared with, for example, how much attention corporate social responsibility has received in company law research. This article studies sustainability in the context of liquidation and restructuring proceedings and the preservation of different kinds of resources (natural, manufactured, human, and social capital) in insolvency procedures. The purpose of insolvency proceedings may prevent the full implementation of sustainability. In bankruptcy, the administrator must maximise the selling price for creditor satisfaction, and there are few possibilities to promote sustainability. When facing an acute environmental hazard, in the name of public interest, a bankruptcy estate with assets usually has to act unless the law stipulates that society is responsible for taking care of the problem. In restructuring proceedings, the main purpose is to continue the debtor's business. It depends on the markets how sustainable the debtor company must be to achieve profitability. If becoming a profitable company in a “green” or otherwise sustainable market requires costly efforts, creditors' interests may require the sale of the assets. The author views through sustainability lenses EU Restructuring and insolvency Directive (2019) and finds there is not much of a sustainability approach included.     

商事信托法律构造研究

商事信托作为商事组织的一种形式,运用传统信托运作方式中所有权形式分割,责任与利益分离,受托人责任与风险承担来实现商事组织的灵活融资经营和受益人的信托收益。商事信托得益于信托的资产分割功能,使商事组织享有独立于信托所有人及其管理人的资产,得以自己名义经营管理、与第三人进行交易,产生独立的法律关系,承担独立法律责任,理应具有商事信托之独立法律主体地位,此乃我国商事信托发展和商事组织法之规范方向。     

Banking and commerce: A liquidity approach

This paper looks at the advantages and disadvantages of mixing banking and commerce, using the “liquidity” approach to financial intermediation. Bringing a nonfinancial firm into a banking conglomerate may be advantageous because it makes it easier for the bank to dispose of assets seized in a loan default. The conglomerate's internal market increases the liquidity of such assets and improves the bank's ability to perform financial intermediation. More generally, owning a nonfinancial firm may act either as a substitute or a complement to commercial lending. In some cases, a bank will voluntarily refrain from making loans, choosing to become a non-bank bank in an unregulated environment.     

Accounting for heritage assets: Thomas Holloway's picture collection, 1881–2019

In recent years, there has been a debate about whether the owners of “heritage assets” should include them on their balance sheets. We present a longitudinal study of the collection of 77 pictures donated by Thomas Holloway to Royal Holloway College between 1881 and 1883. We draw on archival material to analyse accounting practices for Holloway's picture collection, finding that the collection remained effectively invisible as an accounting object until 1999, when accounting requirements for heritage assets were first applied. We use Jean Baudrillard's “orders of simulacra” to study the relationship between accounting signs and their referents, and we draw on Bruno Latour's notion of “matters of concern” to investigate how changes in the accounting sign render the referent a complicating, agitating and provoking “matter” in different ways. The Royal Holloway financial statements currently present the picture collection by an accounting sign that we suggest is a “counterfeit” (signifying the money that could, counterfactually, be made from selling the paintings) but not a “simulation” (creating a hyperreality detached from the referent). This relationship between the sign and the referent makes up the ontological status of “assets” in accounting reports, rendering assets capable of triggering actual (rather than hyperreal) material effects.     

Social trust and corporate financial asset holdings: Evidence from China

This study examines the impact of social trust on firms’ holdings of non-currency financial assets using a large sample of firms in China’s real sector. We find that firms in regions of the high social trust hold fewer financial assets, consistent with the notion that credibility in high-trust regions reduces information asymmetry and transaction cost among market participants. This leads to better access to formal and informal financing and higher profitability for the real economy, eventually depressing firms’ financial asset allocations. We also find that the negative effect of social trust on financial asset holdings is more prominent for private firms and firms with weak internal monitoring from large shareholders, suggesting that corporations rely more on trust in these cases; it is less pronounced when firms are in regions with good legal systems, proving social trust to be a substitute for formal institutions.     

Access to Collateral and the Democratization of Credit: France's Reform of the Napoleonic Security Code

France's Ordonnance 2006-346 repudiated the notion of possessory ownership in the Napoleonic Code, easing the pledge of physical assets in a country where credit was highly concentrated. A differences-test strategy shows that firms operating newly pledgeable assets significantly increased their borrowing following the reform. Small, young, and financially constrained businesses benefitted the most, observing improved credit access and real-side outcomes. Start-ups emerged with higher “at-inception” leverage, located farther from large cities, with more assets-in-place than before. Their exit and bankruptcy rates declined. Spatial analyses show that the reform reached firms in rural areas, reducing credit access inequality across France's countryside.     

Should a financial service provider care about trust? An empirical study of retail saving and investment allocations

Motivated by evidence of low trust for financial service providers, this study turns to scholarship on trust, which suggests that trust influences individuals' risk-taking. The study asks whether a financial service provider that is highly trusted, and with saving propositions across the risk continuum, has more success with risk-based savings than risk-free savings compared to an industry average, or overall situation? A number of theoretical expectations are empirically confirmed. Findings indicate that a provider not perceived as highly trusted may have difficulty selling risk-based products. Secondly, trust appears to be a form of competitive advantage in that it encourages more assets in risk-based products on which higher fees are earned. This highlights the importance of qualitative factors both in profitability and as unique selling points, and suggests possible strategic pathways for managers when allocating scarce resources to build firm strengths.     

The Squam Lake Report: Fixing the Financial System*

In these excerpts from The Squam Lake Report, fifteen distinguished economists analyze where the global financial system failed, and how such failures might be prevented (or at least their damage better contained) in the future. Although there were many contributing factors to the crisis—including “agency” problems throughout the financial system and a bankruptcy code poorly suited for reorganizing financial firms—at the core of the problem is a potential conflict between the risk-taking proclivity of financial institutions and the interests of the economy at large that must be managed at least in part through more effective regulation. The Squam Lake Report provides a nonpartisan plan to transform the regulation of financial markets in ways designed to limit systemic risk while preserving—to the extent possible and prudent—the economies of scale and scope that justify the existence of today's large financial institutions. To reduce the risks that large banks will fail, the authors call for higher capital requirements based on more effective assessments of the risks of bank assets and liabilities, as well as a new systemic regulator that should be part of the central bank. To reduce the costs of failure when it occurs, the authors propose that banks be required to create “living wills” laying out their plan to sell assets or shut down operations in the event of financial trouble. As part of that plan, regulators are urged to “aggressively encourage” banks to issue “contingent” debt capital securities that convert into equity.     

信托公司参与企业资产证券化中的双SPV模式探究

资管计划参与下企业ABS虽可拓展企业融资渠道,但立法效力等级低及监管的严格化倾向使其无法实现完全破产隔离并极大限制基础资产范围。海印模式下信托公司参与企业ABS,利用双SPV结构解决了破产隔离以及基础资产问题。而该双SPV模式为迫于满足监管要求不得已的产物并非金融创新,建议逐步确定企业ABS市场受托管理人主体以解决现阶段资管计划多头监管现象;在双SPV模式监管中赋予信托公司更多基础资产以及第二层SPV管理人的审查、甄选责任。