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Karin Lukas, Barbara Linder, Astrid Kutrzeba and Claudia Sprenger

In recent years companies have been facing increased scrutiny of their human rights conduct. However, international human rights law has traditionally been state-based yet provides often dissatisfying judicial means of conflict resolution between companies and victims of human rights violations. In practice this leads to a serious governance gap, with the result that many corporate human rights violations go without redress or remedy.

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Bo Xie

Chapter 1 deals with the concept of and approaches to ‘corporate rescue’ and examines the theoretical debate on the goals of insolvency law and corporate rescue, and how those various and sometimes competing goals could be effectively served. It further considers the advantages of the pre-pack approach in corporate rescue and questions whether this pragmatic approach to rescue is capable of accommodating different goals in corporate rescue, in the absence of an agreed working standard against which to measure these goals.
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José Gabilondo

This chapter establishes the foundation for the book’s argument by examining three core questions posed by the 2007–2008 financial crisis. First, what exactly does bank funding encompass? Second, markets already impose capital constraints on all firms so why should governments place additional requirements on how banks fund themselves? Moreover, why should funding regulation target banks given that non-bank intermediaries also play an important role in contemporary credit markets? The 2007–2008 financial crisis provided a laboratory for these questions, which post-crisis regulation has tentatively answered with new standards for bank funding liquidity and capital.

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Stephen M. Bainbridge and M. Todd Henderson

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  • Research Handbooks in Corporate Law and Governance series

Claire A. Hill, Brian J.M. Quinn and Steven Davidoff Solomon

Mergers and acquisitions (M & A) have a rich history in the American economy. Over the course of the past century and a half, merger activity has proceeded in waves, each wave inevitably followed by a regulatory and legal response. Modern merger activity emerged during the late nineteenth century. The succeeding trust era, characterized by monopolies and frenetic acquisition activity, resulted in new regulations in the 1890s and early nineteenth century. Merger activity created vast conglomerates during the 1960s. During the 1970s and 1980s, the leveraged buyout boom led to the development of modern M & A legal doctrine. The late 1980s and 1990s saw the embracing of new participants such as private equity firms. Today, the Internet Age and globalization have led to the current M & A market, characterized by transactions that are global, very large (multi-billion dollar), and sometimes both. The rich history of M & A, with its alternating cycles of activity and quiescence, illustrates an important role for law. The law is both a response to M & A activity, implementing ex post facto regulation, and a guiding force, spurring waves of M & A activity throughout. There is no doubt that as M & A continues its cyclical life, the law, lawyers and those who study the law will continue to play an important part in this economic phenomenon. From its origins – when law mattered little – M & A has become a highly regulated business.
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Stephen M. Bainbridge and M. Todd Henderson

Limited liability is the most important feature of the modern corporation. In the introduction, we set the stage for our analysis of the scope limited liability by first offering an explanation for the doctrine. We start with the ideas of corporate separateness and corporate personhood—legal fictions that are based on state statutes deeming associations of various individuals called “corporations” to be treated as separate legal entities. We show that this simple fact enables corporations to engage in productive activity at massive scale that would not be possible in the absence of this legal trick. From here, we introduce the ideas of asset partitioning, of which limited liability is a flavor. Deeming a corporation to be a distinct entity permits individuals to isolate assets in the firm, thus shielding them from the creditors of the owners of the firm, as well as shielding the assets of the owners from the creditors of the firm. This isolation allows firms to borrow against and invest firm assets with more certainty and specialization, as well as allows risk-sharing at lower cost than otherwise possible. However, limited liability is not just a legislative diktat, it is, we argue, what the parties to any transaction would agree to behind the ex ante veil of ignorance. We consider four cases—contract creditors of public corporations, tort creditors of public corporations, contract creditors of close corporations, and tort creditors of close corporations—to show how the efficient default rule is one of limited liability. We then consider when exceptions are warranted from this default rule, grouping these all roughly under the umbrella of piercing the veil, or disregarding the legal separateness of the corporation in question. We admit our skepticism that the doctrine designed to optimize the exception to the rule of limited liability is effective at striking the right balance, and set out a plan of work to make that case.
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  • Research Handbooks in Corporate Law and Governance series

Edited by Claire A. Hill and Steven Davidoff Solomon

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Ashley Savage

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Ashley Savage