February 12, 2009
Welcome to the Blogosphere, Defining Tension!
Posted by David Zaring

It's hard to take the measure of European corporate and insolvency law, though goodness knows some people are trying.  Now we've got The Defining Tension to help us understand Dutch and other continental developments.  From the purpose statement:

The basic purpose of The Defining Tension is twofold:

  1. provide on a regular basis, and in a compact, up-to-date and easy accessible way, perspectives on Dutch and international developments in corporate law - with a focus on corporate governance - and insolvency law, including related litigation; and
  2. serve as an independent forum for constructive discussion among authors and readers. 


The name of TDT is derived from an issue that is of special interest to us: the inherent tension between corporate director authority and judicial freedom to review corporate director conduct - often said to be the defining tension in today's corporate governance.

Welcome to the blogosphere!

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July 19, 2008
Restraints on Trade
Posted by David Zaring

I'm piping in from Europe briefly to point you to the Sunday Times's article on the best paid London lawyers.  Takeaway: it's great for the few people who get to be barristers (that is, the nuts qualification limitation that the UK imposes on lawyers who want to appear in court) that they have a barrister requirement.  The corporate guys who pull down three to five million bucks a year work "80 hour weeks" or “every hour God gives.”  The top barristers?  Well, they make slightly more money, and they spend many of the hours that God gives doing things other than working.  One is the "cleverest man in England," summers (as in, spends the whole summer) in Bordeaux, and is writing a three volume history on one of England's obscure but lengthy late-medieval wars.  Another "starts at 8.30, leaves at 5.30."  A third lists his passions as "opera, riding, gardening, olive farming," and has a house in Hampshire and a villa in Tuscany.

I imagine this article is being passed around New York law firms, where one gets the sense that litigators are only vaguely tolerated, with some bemusement.

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March 21, 2008
Sneaker Wars: Book Review Review
Posted by Fred Tung

Just in time for March Madness, Sneaker Wars has just come out, recounting the modest origins of theAdidas now-multinational multi-billion-dollar sports shoe industry.  I just happened to catch the book review in this morning's WSJ.   The story begins with the Dassler brothers' little Bavarian shoe factory, started during the thick of WWII.  Fraternal rivalry caused the brothers Adi and Rudi to part company in the late 1940s, when Rudi walked across the river to the other side of town--the medieval town of Herzogenaurach--to set up a competing factory.  Adi Dassler's shoe became, of course, Adidas.  Rudi developed the Puma brand.  Together, the rivaling brothers and their rival brands came to dominate the world sports shoe industry for decades.  Adi and Rudi pioneered what are today's standard marketing strategies for sporting goods and other consumer goods, giving away free shoes to athletes and later paying stars to wear the logo.   

It's a treat for me to read about the history of Adidas.  Anyone who played grade-school basketball in the 70s remembers the dominant basketball shoes--Converse All-Stars and the Adidas Superstar, with the latter gradually overtaking the former both in the pros and in the school yard.  According to Wikipedia, three quarters of all NBA players in the mid-70s were wearing the Superstar.  I remember well getting my first pair.  They were navy felt with white stripes (I know, I know . . . but remember, this was the 70s).  I was a mediocre basketball player at best, but at least the shoes looked cool.

The sports shoe industry took a big jolt in the mid-80s, when Phil Knight signed Michael Jordon for Nike and launched the Air Jordan, which became the best-selling basketball shoe ever.  Nike has dominated the U.S. market ever since, though Adidas and Puma appear to be making comebacks.  You can read about Adidas' recent comeback efforts with its signing of David Beckham in the Prologue to Sneaker Wars.

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June 23, 2007
International Securities Regulation
Posted by Fred Tung

I'm in a global mood as I sit here at Dulles waiting for my night flight to Addis Ababa, where I'll be consulting with the Ethiopian Ministry of Justice on commercial law reform for about a week.  As luck would have it, it's also been a happenin' few weeks in terms of changes afoot for global securities regulation.  To wit:

On Wednesday, the SEC voted unanimously to recommend that non-US based companies be allowed to rely on International Financial Reporting Standards (IFRS, promulgated by IASB--the international accounting standards board) without having to include GAAP reconciliation, as is currently required.

A few weeks back, the eighth annual meeting of the SEC Historical Society occurred.  Its focus:  Beyond Borders: A New Approach to the Regulation of Global Securities Offerings.  The discussion centered around a proposal for a regime of mutual recognition with the EU regarding large issuers (WKSIs, more or less), which was presented by Ed Greene of Citi Markets and Banking.

And finally, the SRO arms of NYSE and NASDAQ are officially combining as SIRA--the Securities Industry Regulatory Authority.  While not technically an international development, it's consistent with the increasing international consolidation among exchanges (the WSJ piece referred to NYSE Regulation as a "unit of NYSE Euronext Inc.").  NASDAQ CEO Mary Schapiro also suggested the possibility of some movement toward principles-based regulation, similar to LSE.  Perhaps a competitive adjustment?

In any event, my flight is boarding.  Internet access willing, stay tuned for more from Addis.

Permalink | Europe| Globalization/Trade| Securities | Comments (1) | TrackBack (0) | Bookmark

April 26, 2007
German Corporate Governance
Posted by Gordon Smith

The "ouster" of Klaus Kleinfeld as CEO of Siemens is a big corporate governance story, even though it doesn't register so vibrantly in the US. Kleinfeld was not formally terminated. He left after learning that shareholder representatives on the supervisory board were searching for his replacement. As our readers surely know, Siemens is attempting to move beyond a series of scandals, and even though Kleinfeld has not been directly implicated in any criminal activity, his presence was an obstacle to a fresh start for the company.

In the reports of the events that I have been reading, one of the central characters in the drama is Josef Ackermann, chief executive of Deutsche Bank AG, which is a large shareholder of Siemens. Ackermann is a member of the supervisory board, which has 20 members, half of whom are elected by Siemens' employees. According to the W$J, "Labor representatives on the board had said in recent days they were still undecided on whether to support Mr. Kleinfeld when his contract came up for renewal yesterday."

So this looks like a classic block shareholder story, in which Deutsche Bank monitors the top managers of the company and intervenes in a moment of crisis. Would the same underlying facts have the same result in the US? Well, that's hard to say, but my guess is that Kleinfeld stays if Siemens is a US company. Cf. HP (Mark Hurd) and Apple (Steve Jobs).

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August 15, 2006
Oesterle on AIM
Posted by Gordon Smith

Dale Oesterle has a nice update on the Alternative Investment Market (AIM), and he explains why the U.S. needs to pay attention:

The AIM market is booming. In 2005 AIM had 335 IPOs compared to NASDAQ’s 35. The deal size comparisons are also telling. The average technology IPO deal size on the NASDAQ was $117.5 million, on the AIM it was $18.7 million. The AIM supported the smaller deals. Interestingly, the enterprise value as a multiple of revenue was lower on the NASDAQ 4.7x than on the AIM, at 6.3x. AIM investors were willing to accept more risk. The London market has successfully created a public offering market for small and micro cap companies. To remain competitive, the United States trading markets need to mount a successful competitor to this market.

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August 05, 2006
European Travel Poll
Posted by Gordon Smith

Let's say that you have a job that allows you to travel during the summer. You do most of your work online, so as long as you have an internet connection, you can be anywhere. And let's say that you  love all of Europe, but you prefer to focus on one country per summer, rather than hopping around.

Create polls and vote for free. dPolls.com

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June 22, 2006
Merging the World's Exchanges
Posted by Fred Tung

J0254486 As each day’s headlines attest, the world’s stock exchange business is consolidating. The NYSE has bid for Euronext, the company that owns and operates the Paris, Amsterdam, Brussels, and Lisbon stock exchanges and the London International Financial Futures and Options Exchange. The Deutsche Borse had also made a bid, but its offer appears to be floundering, as Euronext shareholders voted recently expressing their preference for the NYSE's bid.  Predator and prey, Deutsche Bourse and Euronext are also each pursuing a deal with Borsa Italiana.  NASDAQ has bid for the London Stock Exchange, as have the Deutsche Bourse and Macquarie Bank of Australia.  NASDAQ already owns over a quarter of LSE's shares, making rival bidding difficult.  Whew!

The conventional story for this consolidation seems to be the inexorable scale economies that come from pushing more trading volume through expensive computerized trading systems with unlimited capacity.  Given the technological advances, the world’s securities trading may be a winner-take-all market, and once the large start-up costs of the trading infrastructure are sunk, it behooves each exchange to gobble up as much volume as possible. For consumers, the story goes, benefits will come in the form of cheaper trades at better prices. 

This conventional story comes with a number of interesting complications, though—economic, regulatory, and political. On the economics, while competition among exchanges to capture scale economies is surely an important impetus to consolidation, as the Economist points out, the exchanges are also coming under increasing pressure from alternative trading venues.  First off, the big Wall Street firms are increasingly internalizing their crossing trades--matching buy and sell orders internally instead of sending them to the exchanges for execution.  In addition, brokerage firms are registering their internal crossing networks as alternative trading systems with the SEC, thereby bringing in regulatory oversight, which allows for connections with external networks and increased liquidity.  Second, over-the-counter trading via brokers is becoming more and more popular.  Third, block trading by institutions is more and more being conducted over private electronic trading systems like Liquidnet and Pipeline, where anonymity is more readily available.  So exchanges as a group are losing market share.  Up to two-thirds of British share trading and 75% of German trading now occur off-exchange.  The consolidation of exchanges turns out to be as much survival strategy as innovative cost cutting strategy.

On the regulatory side, Sarbanes-Oxley is the big gorilla everyone is trying to keep behind the closet door. The UK’s Financial Services Authority has received comfort from the SEC that a NASDAQ-LSE merger would not by itself trigger an attempt by the SEC to apply SOX or other US regulation to LSE-listed firms.  SEC commissioner Anne Nazareth has been publicly commenting to similar effect, and last week, the SEC issued a blunt fact sheet stating that:

– Joint ownership of a U.S. exchange and a non-US exchange would not result in automatic application of U.S. securities regulation to the listing or trading activities of the non-U.S. exchange.

– Whether a non-U.S. exchange, and thereby its listed companies, would be subject to U.S. registration depends upon a careful analysis of the activities of the non-U.S. exchange in the United States.

– The non-U.S. exchange would only become subject to U.S. securities laws if that exchange is operating within the U.S., not merely because it is affiliated with a U.S. exchange.

This is of course no small concern. In 2000, ninety percent of the world’s IPO dollars were raised in the US; in 2005, ninety percent of the world’s IPO dollars were raised outside the US. SOX has largely been blamed for this IPO flight from the US. FSA chair Callum McCarthy did note, however, the possibility that the merged NASDAQ-LSE entity itself might seek to rationalize its regulatory structure by consolidating its operations within one jurisdiction in order to subject itself to only one regulatory regime. He went so far as to suggest the possibility that some day the LSE might not be subject to UK regulation.

On the political end, it’s not difficult to imagine the nationalistic pressures being brought to bear on these various deals.  The French are keen to preserve a strong French exchange overseen by French regulators, and the NYSE promoted itself as Euronext's best merger partner for augmenting Paris as the premier European financial center.  OTOH, the NYSE has also made noises about starting an new exchange in London to compete with LSE, thereby undermining its professed commitment to promoting Paris.  Deutsche Borse has also found itself in political hot water over the conduct of its Euronext bid.  Just the other day, DB sweetened its offer for Euronext, attempting to appease the French by promising that the office of the chairman of the supervisory board of the merged company would be in Paris, and that the merged company would use French technology for trading shares.  Not only was Euronext not impressed, but German politicians and DB employees on its supervisory board moved to block attempts to shift businesses elsewhere.  A politician from the German state of Hesse, DB's home state, professed that DB "has definitely gone too far," and threatened to revoke DB's license if concessions cost too many jobs in Frankfurt.  Germany's minister for trade and industry noted that any deal would have to preserve "the central role of Frankfurt."

It's complicated!  Stay tooned.

Permalink | Europe| Globalization/Trade| IPOs| Securities| Takeovers | Comments (0) | TrackBack (0) | Bookmark

May 12, 2006
Sox and Offshore Whistleblowing
Posted by Fred Tung

Tn_whistle From its inception, the (non) application of SOX to foreign issuers has been controversial.  Now the whistleblower protections of SOX have come into focus as another avenue for crossborder tensions.  The ABA Journal has a nice summary of current issues.  Europe, it turns out, is much less enamored of whistleblowers than we are in the States.  While "Americans like to elevate whistle-blowers to near folk-here status, from Daniel Ellsberg . . . to Sherron Watkins," in Europe, whistleblowers are often thought of as informants, as rats.  in Germany, "the term  term most likely conjures up memories of the Gestapo . . . .  In France, the term evokes images of the Vichy regime’s collaboration with the Nazis and of neighbors ratting out one another." 

No wonder that the EU has had some trouble coming to terms with the application of the new Sox whistleblower provisions to its issuers crosslisted in the US--especially the requirement that issuers establish procedures to allow employees to file internal whistleblowing complaints anonymously.  Europeans are apparently more concerned about the privacy and reputation of the accused.  "[W]hile the Americans are most concerned with protecting whistle-blowers to ensure market integrity, Europeans place a higher premium on guarding personal reputations of targets of complaints, which sometimes arise out of spite, revenge or other suspect motives."

Permalink | Comparative Law| Employees| Europe | Comments (0) | TrackBack (1) | Bookmark

May 04, 2006
Europeans are Ignorant
Posted by Gordon Smith

Well, at least about the health effects of smoking.

So say David Cutler and Edward Glaeser, economists from Harvard (paper here). The factor that best explains different smoking levels in the U.S. and Europe is the difference in beliefs about the consequences of smoking:

Public opinion surveys suggest that Americans have some of the strongest beliefs that cigarettes are extremely harmful. Furthermore, there is an extremely strong negative correlation across individuals between beliefs about the harms of smoking and smoking, and a somewhat weaker correlation between the same variables across countries....

A simple decomposition suggests that these belief differences can explain between one quarter and one-half of the difference in smoking rates between the U.S. and Europe. We present some evidence suggesting that these differences in beliefs are themselves the result of concerted government action emphasizing the harms of smoking.

Cigarettes are more expensive in Europe because of higher taxes on tobacco, so if cost were the driving force, Americans would smoke more than Europeans. Higher income levels in the U.S. might also suggest that smoking should be more popular here, as the monetary costs of smoking as a percentage of income would be lower. Then again, high income levels may cause people to quit smoking, as they have more to lose. Income levels have some explanatory value, but they are not the best predictor of smoking levels.

Regulation seems to play a role. Workplace bans raise the costs associated with smoking, and that seems to reduce consumption. But both Europe and the U.S. haves such regulations -- indeed, the authors conclude that Europe is more regulated than the U.S. in this regard, though that seems hard to believe.

In the end, the authors look to beliefs about health consequences as the most important determinant of smoking levels. This sort of evidence is startling:

Both smokers (83 percent) and non-smokers (94 percent) in the US strongly believe that smoking [is harmful to health.] By contrast, 52 percent of German smokers and 84 percent of German nonsmokers shared that belief. Beliefs appear to be specific to the society, much more than to the individual who smokes or not.

So why the difference? Perhaps public health efforts in the U.S. have been stronger than in Europe. The authors provide some interesting history of the U.S. anti-smoking campaign:

Popular knowledge about the harms of smoking almost certainly dates from Readers’ Digest, which ran an article in 1952 titled “Cancer by the Carton.” The news was picked up by other newspapers and media outlets, including even Edward R. Murrow’s (a particularly famous smoker) See It Now television program. These early reports and the related publicity created the first cigarette cancer scare in the early 1950s. The 1950s saw nascent public beliefs form about the harms of smoking. In a January 1954 Gallup survey, 41 percent of people answered ‘yes’ to the question “Do you think cigarette smoking is one of the causes of lung cancer, or not?”

... From 1933 to 1952, cigarette smoking rose every year. Indeed, between 1920 and 1952, cigarette consumption fell only during the bleakest years of the great depression (confirming the positive income elasticity of cigarette consumption at lower income levels). Between 1952 and 1954, cigarette smoking took its first dramatic drop. From 1952-1953 smoking dropped by 3 percent, followed by an additional 6 percent the following year. While it is possible that this drop was due to something other than changing beliefs about the health risks of cigarettes, contemporary observers certainly thought that the decline in smoking was the result of the health scare. For example, the treasurer of the American Tobacco Company said in 1954 that “there is a tendency to ascribe the drop in cigarette consumption almost entirely to the so called ‘cancer scare’.” (New York Times, May 7, 1954, p.35).

The reaction in the marketplace proceeded along several dimensions. On the one hand, manufacturers and the public responded by making cigarettes somewhat safer. Use of filtered cigarettes rose from less than 2 percent in 1952 to more than 20 percent in 1955. Edward R. Murrow on the air linked the rise of filtered cigarettes to heightened fears about the dangers of cigarettes. On the other hand, the cigarette industry fought back through advertising. Using their vast advertising budgets and spending on their own rival research (which unsurprisingly found that cigarettes were harmless), cigarette companies were able to overcome the negative publicity associated with these early studies. Smoking rose again from 1954 through 1963.

Increasing evidence in the medical community showed the harms from smoking, and in 1964, the Surgeon General issued his famous warning about the health consequences of smoking. In 1966, the Federal Trade Commission required cigarettes to be sold with a label warning that “cigarettes may be hazardous to your health.” Both the federal government and private groups like the American Cancer Society mounted campaigns meant to increase awareness of the health consequences of smoking. The fruits of this campaign are apparent in public opinion surveys. In 1960, 50 percent of Americans believed that cigarette smoking was one of the causes of lung cancer. By 1969, the share was 71 percent (Cutler and Kadiyala, 2003). One sees this in the consumption data as well. In 1964 alone, cigarette smoking fell by 3 percent, and smoking was down by 8 percent by 1970.

Since the 1950s, beliefs about the harms of smoking have cemented. The Gallup Organization (Gallup, 1981) documented a rising belief that smoking was dangerous. By the 1980s, Viscusi (1992) finds that people actually overestimated the health risks of smoking. As noted above, over 90 percent of Americans now believe that smoking causes cancer. A strong circumstantial case links the decline of smoking to the expansion of information about the harms of smoking. [D]ata on the share of people who have ever smoked show a decline beginning in cohorts coming of smoking age after 1964. Other evidence about the link between perception and smoking comes from individual correlations between beliefs and actions. Smoking rates among those who believe that smoking a pack or more of cigarettes per day has a great risk are only 23 percent, compared to 52 percent among those who do not believe that link. If beliefs causally affect smoking (and not the reverse, as with cognitive dissonance), it suggests a large impact of beliefs on actions.

All of this makes me wonder about the obesity problem in the U.S. The authors have another (older) paper on that. Blame your freezer, microwave, and dishwasher, they say: "technological innovations which made it possible for food to be mass prepared far from the point of consumption, and consumed with lower time costs of preparation and cleaning." Anti-obesity public health campaigns are more recent than anti-smoking campaigns, but the link between education and behavior is encouraging.

Thanks to NPR's "Talk of the Nation" for the tip.

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September 04, 2005
The Price of Gasoline: A European Perspective
Posted by Gordon Smith

This evening my wife was cleaning away some remnants of our summer stay in Sweden when she stumbled across a receipt for gasoline, which we acquired on one of our Saturday jaunts outside of Lund. We had purchased 44 litres (approximately 11.624 gallons) of gasoline for 481 Swedish crowns (roughly $62 at the then-prevailing conversion rate). The price per gallon: $5.33

For an interesting chart comparing weekly gas prices in six European countries and the U.S. since the beginning of 1996, see here. We shouldn't expect too much sympathy from the other side of the Atlantic.

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July 07, 2005
Terrorist Acts in London
Posted by Christine Hurt

In case you also weren't listening to the news on your way to work this morning, CNN is reporting this story:

Four explosions in London's transport system have killed at least 40 people and wounded dozens more in what Prime Minister Tony Blair said was an apparent terrorist attack. A group calling itself the "Secret Organization group of al-Qaeda Organization in Europe" claimed responsibility in a Web site posting. The authenticity of the claim could not immediately be verified.

Prayers are flying across the pond.

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July 03, 2005
EU Business Policy
Posted by Caroline Bradley

There's always a big fuss when the Presidency of the EU changes and this time Tony Blair's Labour Government is trying to making the most of its opportunity to set its mark on EU policy-making. There is a new White Paper on the EU. All of the big questions are on the table - including the future of enlargement, the common agricultural policy and the European social model. The White Paper seems to suggest that the UK wants to fix everything that is wrong with Europe. A big task.

The UK's Department of Trade and Industry is involved in many of the things Blair says he wants to achieve - the idea that the EU should focus on encouraging research and development and entrepreneurship is within the DTI's remit (there is to be a Council meeting on Competitiveness the week after next). And better regulation, especially better business regulation is also a matter of interest to the DTI (although financial regulation really belongs to Gordon Brown). So the DTI has some new web pages on the UK's Presidency and the DTI. 

The DTI is going to work with stakeholders in trying to achieve its aims, and so links from one of its web pages to web pages about Europe for the Institute of Directors and the Confederation of British Industry.  You have to hunt around a bit to find consumers but there is a Consumer and Competition Policy link. Other stakeholders don't really appear on these pages, although the DTI has some responsibilities in relation to employment and the Government wants to make sure that employees who want to will be free to work more than 48 hours per week. I guess some stakeholders have bigger stakes than others.

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July 02, 2005
Flying Swans
Posted by Caroline Bradley

According to the BBC (which has a link from this page), the UK is the first EU Member State to adopt an animated logo for its Presidency of the EU. The clip shows a group of swans flying in formation from left to right of the screen. The BBC article mentions a number of possible meanings this logo might be understood to have, but does not include the possibility of a shift from left to right in political terms.

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July 01, 2005
UK EU Presidency: Better Regulation
Posted by Caroline Bradley

One of the (many) priorities for the UK Government's 6 month Presidency of the EU, which begins today, is Better Regulation. This means:

First, improving the policy making process by better consultation and Impact Assessments (which should include measuring the burden on business and testing the impact on the EU’s international competitiveness). Second, reducing the volume and complexity of EU legislation. Third, reviewing the impact and outcomes of existing legislation.

According to the UK's priorities document Better Regulation seems to be particularly relevant in the financial services context. The EU Commissioner responsible for the internal market, Charlie McCreevy, is all in favour of better regulation:

Businesses and investors alike need appropriate and efficient regulation, not over-regulation but better regulation.

Somehow I don't think the EU will be following the lead of British Columbia in developing simpler, standards-based securities regulation for a while yet (if at all). After all, the EU's not-yet-complete Financial Services Action Plan has already taken a very long time, and will be keeping a lot of lawyers in business for the foreseeable future.


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