Liquidation Distributions to Members in Worlds With and Without Par Values

Although par values of shares were abolished by the Corporations Law Reform Act 1998, they continue in use where agreements predating this Act, or legal doctrine underpinning the agreements, depend on them. One such doctrine, the principle of equality, is invoked in winding-up if agreements about distributions to members fail or do not exist. This paper examines how the principle of equality may be implemented in the post-commencement period. It considers shares that had par values, now abolished but potentially revivable, and no-par shares issued after commencement. The major theme is that par value abolition has undermined the case law on the equality principle, and that oncesettled law has become uncertain.     

Zielsetzungen der Versicherungsaufsicht

While financial state supervision has intensified legal supervision of insurance companies, the doctrine of the state’ s duty to protect constitutional rights of the insured has consistently been rolled back: merely legality control, the principle of subsidiarity in § 81 Insurance Supervision Act, the model of the informed consumer and the rejection of the trust models. Insurance companies are protected by national constitutional rights, European law and in particular by the principle of necessity. The aim of state supervision is not only to protect the insured, but also to guarantee a well-functioning private insurance industry. To some extent, state supervision is acquiring a merely warranting character; consensual administration is becoming more common — this does not, however, alter the aims of supervision.     

Das Versicherungsvermittlerrecht nach der Reform

The EC Directive on insurance mediation has been implemented into German Law two and a half years late by the Insurance Intermediary Law Revision Act of 19^th December 2006, which has been enacted on 22^nd May 2007. On the one hand, this Act contains regulations on the professional law which are provided in the Industrial Code (Gewerbeordnung — GewO). In principle according to section 34d GewO, professional insurance intermediation is an activity requiring a licence. This licence is only granted under the condition that the applicant is able to present the conclusion of a professional indemnity insurance and a certificate that the applicant has passed an examination of knowledge and ability held by the chambers of industry and commerce (IHK). In fact, the exceptions from this principle prevail. Tied insurance agents are exempted from both conditions by act of law. Product accessory intermediaries can be exempted from the examination of knowledge and ability upon application. Employees of an insurance intermediary need to prove their knowledge and ability only to their employer. On the other hand the Insurance Intermediary Law Revision Act contains besides the regulations on professional law also new obligations of information, communication and consultation for the insurance intermediary. These obligations have been implemented into a professional law ordinance and into sections 42b und 42c Insurance Contract Act (VVG). The ordinance regulates the obligations of the insurance intermediary to provide the customer with information about his status. Sec 42b (1) VVG regulates the obligation of an insurance broker to give an advice on the basis of an analysis of a sufficiently large number of insurance contracts and insurance undertakings. Sec 42b (2) VVG regulates obligations of an insurance agent to inform the customer before the conclusion of an insurance contract about the market conditions and information basis he uses for his service, if the customer has not waived this right (sec 42b (3) VVG). Sec 42c (1) VVG further provides an obligation of the insurance intermediary to ask questions depending on the situation, an obligation to give advice depending on the situation and on the price of the product including an obligation to tell the reasons for the advice and finally an obligation of documentation. Sec 42c (2) VVG gives the consumer a right to express a waiver in writing to advice and documentation. Sec 42e VVG awards the costumer damages in the event that there has been a breach of the obligations regulated in sec 42b and 42c VVG. The Insurance Contract Law Reform Bill still has to be passed by parliament. Sec 1 of this Bill contains the new Insurance Contract Act. It is planned that this new Insurance Contract Act shall be enacted on 1^st January 2008. Sec 69 to 73 new Insurance Contract Act provide a complete revision of the law of the insurance agent’s representative authority which is now regulated in sec 43 to 48 of the old Insurance Contract Act (VVG). At the moment the law of insurance agent’s representative authority established by the courts differs extremely from the written law. Therefore the new Insurance Contract Act will bring only minor changes of the actual law. For most parts, the only aim of the reform is to adapt the law in action with the law in the book.     

Das Anspruchserhebungsprinzip — ein Deckungskonzept in der Haftpflichtversicherung mit Zukunft?

The claims made principle is one possibility to define the trigger of an insurance contract. Until now, the question whether the claims made principle is valid pursuant to German law has never been reviewed. Sec. 149 of the German Act on Insurance Contracts acknowledges the claims made principle.Particularly for long tail risks, the claims made principle has substantial advantages compared to traditional policy concepts.     

Is the Unequal Treatment of Debtors in Natural Person Insolvency Law Justifiable?: A South African Exposition

The South African natural person insolvency system has remained largely creditor‐orientated and excludes many honest but unfortunate debtors from its ambit. This is despite the worldwide trend to accommodate all such debtors. Although the system does provide for three different statutory natural person debt relief procedures, the cumulative effect of these measures' entry requirements results in differentiation on financial grounds. This is as all statutory measures require the debtor to have some form of disposable assets or income available – thereby drawing a distinction between those debtors with and those without assets and or income (the so‐called no income no asset debtors). The main aim of this article is to measure the South African natural person insolvency system against the right to equality in terms of both the South African Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act. The article may benefit legislatures and policymakers in constitutional jurisdictions that subscribe to the equality principle and that directly or indirectly exclude some debtors from debt relief while providing others therewith. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.     

Making company directors liable: a comparative analysis of wrongful trading in the United Kingdom and insolvent trading in Australia

The separate legal entity doctrine in corporate law means that directors are not generally liable for their company's liabilities. However, there have been actions taken by governments and courts to make directors liable in certain cases. This article examines and compares legislative provisions in the United Kingdom and Australia to make directors liable for the debts of their companies. These provisions, namely section 214 of the UK's Insolvency Act 1986 (wrongful trading) and section 588G of the Australian Corporations Act 2001 (insolvent trading), had the same starting point, but now differ substantially, even though, arguably, they retain very similar objectives. The article investigates: the reasons for these differences; the criteria on which each of the provisions focus; and the ramifications for the different approaches. It also endeavours to evaluate the strengths and weaknesses of the respective approaches adopted in each country. Copyright © 2005 John Wiley & Sons, Ltd.     

Consumer insolvency in Australia

This paper seeks to identify and assess the features of Australian bankruptcy regulation as they apply to consumer insolvency. Although Australian bankruptcy law makes no explicit recognition of ‘consumer bankruptcy’ as a regulatory target in itself, the Australian legislation nevertheless has a number of features that impact on what would generally be seen to be consumer bankrupts. After providing an outline of the legislative framework within which consumer bankruptcy operates, the paper examines the consumer insolvency aspects of this legislation, together with an assessment of proposed reforms. Some brief comparisons of the ‘consumer’ features of Australian regulation with that of the more fully developed consumer provisions of the Canadian and the United States bankruptcy legislation, are made in order to highlight the Australian position. The Australian Act has historically drawn heavily on English bankruptcy legislation but inevitably Australia has to some extent developed along its own path. Notable is the reasonably vigorous approach to discharge from bankruptcy. The proposed reforms to the Bankruptcy Act, which have followed a detailed consultative process, are largely directed to consumer debtors. Some of these reforms are directed against a perceived debtor abuse of the bankruptcy system. Other reforms, such as increasing the availability of debt agreements, are more generous to insolvent debtors. On the whole the reforms appear to be based more on political than empirical grounds.     

略论国际借款合同的准据法

正确确定合同准据法是有效解决国际贷款合同法律冲突的关键，准据法的确定一般应遵循当事人意思自治原则和有管辖权的法院确认原则，就国际融资实践而言，国际借款合同的准据法的适应范围是很广的，但在涉及当事人身份能力，合同形式以及有关诉讼程序等问题上却不适用合同准据法，而受其他有效法律的调整。     

Rationierung im bestehenden Gesundheitssystem

The immediate as well as the oblique limitation considering the offer of health performances often entail major misincentives. The deficiency from both methods of rationing as well as the dangers connected in breaking the constitutional law forces one to go a different way to maintain the health care system. The more efficient alternatives are a higher co-payment on the one hand and a reduction of the performance catalogue on the other. There is no basic right considering health when one looks at the constitutional law. However, every rule introducing co-payment or a reduction of the performance must be subject to statutory law. This law, in particular, must respect the basic rights of the insured and the principle of equality.     

论劳动基准法中用人单位的惩罚性赔偿责任

劳动基准具有公私法交融的社会法品格,其义务主体为用人单位,其权利主体则有国家和劳动者。当用人单位违反劳动基准义务,不仅应承担对国家的公法中的责任,还应承担对劳动者的私法中的责任。为追求实质公平、建立正确的利益导向机制以及构建与劳动基准法相匹配的责任制度,有必要在劳动基准法中引入惩罚性赔偿制度     

Reappraising the UK social value legislation

This paper appraises the scope and legal obligations of the UK Public Services (Social Value) Act 2012. The law, by imposing on public authorities an obligation to consider wider social, economic and environmental benefits before they enter into major public service contracts, in principle improves service outcomes for communities, and facilitates better access for third sector organizations to public contracting opportunities. Evidence of the legislation’s impact has been mixed.     

Die Bedeutung der Haftpflichtversicherung für die Annahme konkludenter Haftungsausschlüsse

The article covers the practically important question under which circumstances the construction of implied exclusions of liability is influenced by the liability insurance of the injuring party. It is focused on the two practically most relevant case groups in which the jurisdiction considers implied exclusions of liability possible (liability in accommodation agreements and liability in sports). The author firstly shows that under tort law, the consideration of liability insurance is both possible and necessary. Secondly, the author demonstrates that possible objections based in insurance law (such as the principle of separation) are not convincing. This is not limited to compulsory insurances, but applies to all types of liability insurances.     

Rechtliche Strukturen und Rahmenbedingungen der Privat- und Sozialversicherung

Private insurance and national social security insurance do not coexist unrelatedly. The constitution rather presumes a complementary co-operation of both branches of insurance. Whereas private insurance is based on the doctrine of privity of contract, national social security requires statutory legitimation. However, the principle of the bipolar insurance constitution restricts social security insurance to the effect, that it cannot expand unlimitedly at the expense of private insurance. This constitutional basis is reinforced by European Community law in Articles 49, 81 pp. EC. An essential difference between private and social security insurance is the fact that private insurance is characterized by the principle of personal equivalence between contribution and benefit payments, whereas in social security insurance this relation is determined by the principle of general equivalence. Consequently, the principle of solidarity in social security insurance is enriched by additional social components, the most dominant being the principle of social protection. Contrary to the developments of the last decades, social security systems are not designed as a legal scheme to protect a status quo of possession but should primarily serve to fight poverty. Thus, social security law should recall its absorbing function in the social network and rediscover, guarantee and realize the principle of subsidiarity in social security.     

PO Lock-in Agreements in the UK

When a company offers shares in an initial public offering (IPO), existing owners often enter into lock-in agreements prohibiting them from selling shares for a specified period after the IPO. There is some recent US evidence of predictable share-price movements at the time of expiry of these lock-in agreements. Using a sample of 188 firms, 83 classified as high-tech and 105 others, that went public on the London Stock Exchange (LSE) during 1992–1998, we focus on the characteristics of lock-in agreements in the UK and on the behaviour of stocks returns around the lock-in expiry date. We find that the lock-in contracts of LSE-listed firms are much more complex, varied and diverse than US contracts, which usually standardise the lock-in period at 180 days after the IPO. We also find evidence of negative abnormal stock returns at and around lock-in expiry of similar magnitude to those reported in US studies. However, these abnormal returns are typically not statistically significant. While the deterioration in stock returns immediately around the expiry date appears to be particularly much more pronounced for high-tech stocks than for others, the differences in performance are not statistically significant.     

美国JOBS法案、资本市场变革与小企业成长

2012年4月5日,美国总统奥巴马签署JOBS法案,使之正式成为法律。该法案旨在通过适当放松管制,完善美国小型公司与资本市场的对接,鼓励和支持小型公司发展。本文详细介绍了JOBS法案的基本内容,全面分析法案出台后可能造成的影响,并就该法案对发展我国资本市场的启示和借鉴作用进行了深入的分析和思考。     

No value in par: a history of the no par value debate in the United Kingdom

Proposals for shares of no par value have been considered several times this century, and there have been recommendations by government committees and unfulfilled government commitments to introduce them. This paper traces the history of the debate in the United Kingdom, from attempts by guarantee companies last century to issue shares without any value attached, up to a 1973 White Paper. It shows that failure to introduce no par value shares can be explained variously by ignorance, misunderstanding and political cowardice and highlights the way in which the issue became a significant factor in industrial relations during the 1950s.     

动产抵押公示对抗主义之合理性证成

关于动产抵押公示效力,主要存在公示生效主义和公示对抗主义的学理之争。我国立法对这一问题的规定在不同的法律文件中不尽一致。较之于公示生效主义的生硬和死板,公示对抗主义既能满足交易实践的需要,又在立法精神上契合民法的有限性、宽容性与经济性等谦抑精神。此外,公示对抗主义与物权的本质属性并不冲突,未经公示的动产抵押权不仅具有抵押权的优先受偿效力,而且在现行法的框架下,在一定范围内具有对抗第三人的效力。     

Trigger happy or gun shy? Dissolving common‐value partnerships with Texas shootouts

The operating agreements of many business ventures include clauses to facilitate the exit of joint owners. In so‐called Texas Shootouts, one owner names a single buy‐sell price and the other owner is compelled to either buy or sell shares at that named price. Despite their prevalence in real‐world contracts, Texas Shootouts are rarely triggered. In our theoretical framework, sole ownership is more efficient than joint ownership. Negotiations are frustrated, however, by the presence of asymmetric information. In equilibrium, owners eschew buy‐sell offers in favor of simple offers to buy or to sell shares and bargaining failures arise. Experimental data support these findings.     

The impact of CRA agreements on community banks

We develop three empirical models to identify the impact of Community Reinvestment Act (CRA) agreements on the mortgage lending behavior of small banking institutions during the period 1990–1997. CRA agreements are pledges banking institutions make to extend levels of credit to targeted populations and are often used by institutions to reaffirm their commitment to the goals of the CRA. We hypothesize that CRA agreements increase the level of competition for mortgage loans in the targeted area, which in turn causes a reduction in the quantity of mortgage credit to be supplied by community banks. Consistent with the quantity hypothesis, the results show that CRA agreements are associated with less mortgage lending, including lending in lower-income communities (CRA lending) and in minority communities (minority lending), by small community lenders. Evidence does not support a second hypothesis – that community banks respond to the increased competition by providing credit to riskier individuals.     

Credit CARD Act of 2009: What did banks do?

The Credit CARD Act of 2009 was intended to prevent practices in the credit card industry that lawmakers viewed as deceptive and abusive. Among other changes, the Act restricted issuers’ account closure policies, eliminated certain fees, and made it more difficult for issuers to change terms on credit card plans. Critics of the Act argued that because of the long lag between approval and implementation of the law, issuing banks would be able to take preemptive actions that might disadvantage cardholders before the law could take effect. Using credit bureau data as well as individual data from a survey of U.S. consumers, we test whether banks closed consumers’ credit card accounts or otherwise restricted access to credit just before the enactment of the CARD Act. Because the period prior to the enactment of the CARD Act coincided with the financial crisis and recession, causality in this case is particularly difficult to establish. We find evidence that a higher fraction of credit card accounts were closed following the Federal Reserve Board’s adoption of its credit card rules, but not between May 2009, when the CARD Act was signed, and when most of its provisions became law in February 2010. However, we do find evidence that banks deteriorated terms of credit card plans at a higher rate during this period, especially lowered the credit limits. Among the survey respondents whose bank accounts were closed during that period, account holders were much more likely to close their own credit card accounts than to have them closed by their card issuers.