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Gerard McCormack, Andrew Keay and Sarah Brown

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Gerard McCormack, Andrew Keay and Sarah Brown

Chapter 1 deals with Directors’ liability and disqualification imposed when their company ends up in insolvency. Liability can take various forms across Member States. In some Member States, the duties that directors owe when their company is solvent shift in nature when their company is near to being insolvent or actually insolvent and if directors do not fulfil their duties they can be held liable for breach of duty. In the vast majority of other states, directors are held liable if they do not file for insolvency proceedings within a prescribed period from the point where they know or ought to know that their company is insolvent. In some states, directors may be liable if they do not take action to stop their company’s slide into insolvency or act to prevent its insolvent position worsening. The liability of directors could be civil and/or criminal. There are a number of obstacles to bringing proceedings against miscreant directors. From the data obtained the following are the most frequent: the directors are impecunious and not worth pursuing; proceedings are costly; and the time delay in getting a hearing of proceedings can be substantial. There is some opinion, but far from unanimous, that the difference in approach in Member States can lead to significant problems. All but a couple of Member States have some form of disqualification process for directors and it is generally seen as an important element in the monitoring and control of directors. The approach taken to disqualification differs across the EU, and is reflected in the time periods prescribed for disqualification, the reasons for making a disqualification order and whether there are other consequences, besides disqualification from acting as a director, emanating from the handing down of an order of disqualification. A problem that exists with breaches of duties and disqualification is that neither are clearly seen as fitting within either company law or insolvency law where the directors’ company is in financial difficulty and ends up subject to insolvency proceedings, so they are matters that can ‘fall between the cracks’ as there is confusion in knowing how they should be addressed.
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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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  • Research Handbooks in Corporate Law and Governance series

Edited by Claire A. Hill and Steven Davidoff Solomon

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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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  • Research Handbooks in Corporate Law and Governance series

Edited by Claire A. Hill and Steven Davidoff Solomon

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  • Research Handbooks in Corporate Law and Governance series

Edited by Claire A. Hill and Steven Davidoff Solomon

This content is available to you

  • Research Handbooks in Corporate Law and Governance series

Edited by Claire A. Hill and Steven Davidoff Solomon

This content is available to you

  • Research Handbooks in Corporate Law and Governance series

Edited by Claire A. Hill and Steven Davidoff Solomon