Increased regulatory competition has sharpened the comparative awareness of advantages or disadvantages of different national models of political economy, economic organization, governance and regulation. Although institutional change is slow and subject to functional complementarities as well as social and cultural entrenchment, at least some features of successful modern market economies have been in the process of converging over the last decades. The most
important change is a shift in governance from state to the market. As bureaucratic ex-ante control is replaced by judicial ex-post control, administrative discretion is replaced by the rule of law as
guidelines for the economy. Furthermore, at least to some extent, public enforcement is being reduced in favor of private enforcement by way of disclosure, enhanced liability, and correspondent litigation for damages. Corporatist approaches to governance are giving way to market approaches, and outsider and market-oriented corporate governance models seem to be replacing insider-based regimes.This transition is far from smooth and poses a daunting challenge to regulators
and academics trying to redefine the fundamental governance and regulatory setting. They are confronted with the task of making or keeping the national regulatory structure attractive to investors in
the face of competitive pressures from other jurisdictions to adopt state-of-the-art solutions. At the same time, however, they must establish a coherent institutional framework that accommodates the efficient, modern rules with the existing and hard-to-change institutional setting. These challenges - put in a comparative and interdisciplinary perspective - are the subject of the book. As a reflection of the transnationality of the issues addressed, the world's three leading economies and their
legal systems are included on an equal basis: the EU, the U.S., and Japan across each of the subtopics of corporations, bureaucracy and regulation, markets, and intermediaries.
Increased regulatory competition has sharpened the comparative awareness of advantages or disadvantages of different national models of political economy, economic organization, governance and regulation. Although institutional change is slow and subject to functional complementarities as well as social and cultural entrenchment, at least some features of successful modern market economies have been in the process of converging over the last decades. The most
important change is a shift in governance from state to the market. As bureaucratic ex-ante control is replaced by judicial ex-post control, administrative discretion is replaced by the rule of law as
guidelines for the economy. Furthermore, at least to some extent, public enforcement is being reduced in favor of private enforcement by way of disclosure, enhanced liability, and correspondent litigation for damages. Corporatist approaches to governance are giving way to market approaches, and outsider and market-oriented corporate governance models seem to be replacing insider-based regimes.This transition is far from smooth and poses a daunting challenge to regulators
and academics trying to redefine the fundamental governance and regulatory setting. They are confronted with the task of making or keeping the national regulatory structure attractive to investors in
the face of competitive pressures from other jurisdictions to adopt state-of-the-art solutions. At the same time, however, they must establish a coherent institutional framework that accommodates the efficient, modern rules with the existing and hard-to-change institutional setting. These challenges - put in a comparative and interdisciplinary perspective - are the subject of the book. As a reflection of the transnationality of the issues addressed, the world's three leading economies and their
legal systems are included on an equal basis: the EU, the U.S., and Japan across each of the subtopics of corporations, bureaucracy and regulation, markets, and intermediaries.
Introduction
Abbreviations
The Contributors
I Change of Governance in Historic Perspective: From State to
Market - Pathways of Change in the 20th Century
1: Harald Baum: Change of Governance in Historic Perspective: The
German Experience
2: Guido A. Ferrarini: Corporate Governance in the 20th Century: A
View from Italy
3: Curtis J. Milhaupt: Historical Pathways of Reform: Foreign Law
Transplants and Japanese Corporate Governance
4: Yoshiro Miwa, J. Mark Ramseyer: Asking the Wrong Question:
Changes of Governance in Historical Perspective?
5: Jonathan R. Macey: Politics on Wall Street: The Implications of
Eliot Spitzer on State-Federal Relations in the Regulation of
Public Corporations and Capital Markets in the United States
6: Gerald Spindler: Scandals, Regulation, and Supervising Agencies:
The European Perspective
II Corporations: Changing Models of Corporate Governance
7: Klaus J. Hopt: European Company Law and Corporate Governance:
Where Does the Action Plan of the European Commission Lead?
8: Gary M. Brown: Changing Models in Corporate Governance -
Implications of the U.S. Sarbanes-Oxley Act
9: Paul L. Davies: Enron and Corporate Law Reform in the UK and the
European Community
10: Misao Tatsuta: Ongoing Modernization of Japanese Company
Law
11: John O. Haley: Japanese Perspectives, Autonomous Firms and the
Aesthetic Function of Law
12: Joseph A. McCahery, Erik P. M. Vermeulen: Corporate Governance
Crises and Related Party Transactions: A Post-Parmalat Agenda
III Bureaucracy and Regulations
13: Katharina Pistor: Legal Ground Rules in Coordinated and Liberal
Market Economies
14: Horst Siebert: Corporatist versus Market Approaches to
Governance
15: Anthony I. Ogus: Regulatory Paternalism: When is it
Justified?
16: Thomas B. Ginsburg: The Regulation of Regulation:
Judicialization, Convergence and Divergence in Administrative
Law
17: Christian Kirchner: The Proper Role of Bureaucracy in a Modern
Market Economy: The Case of Japan
18: Kahei Rokumoto: The Role of Bureaucracy in Deregulation - The
Case of Justice System Reform in Japan
19: Hans-Jürgen Hellwig: The Transatlantic Financial Markets
Regulatory Dialogue
IV
Markets - Creation, Risks, Safeguards
20: Martin F. Hellwig: Market Discipline, Information Processing,
and Corporate Governance
21: Eddy Wymeersch: Implementation of the Corporate Governance
Codes
22: Stefan Grundmann: The Market for Corporate Control: The Legal
Framework, Alternatives and Policy Considerations
23: Ernst-Joachim Mestmäcker: Antitrust, State Aid and the
Governance of Public Undertakings
24: Fumio Sensui: Sector - Specific Regulations and Antitrust:
Corporate Governance of Public Undertakings in Japan
V Intermediaries: Functions and Responsibility
25: Reinhard H. Schmidt / Marcel Tyrell: Information Theory and the
Role of Intermediaries
26: Gérard Hertig: Using Basel II to Facilitate Access to Finance:
The Disclosure of Internal Credit Ratings
27: Yoshiro Miwa / J. Mark Ramseyer: The Multiple Roles of Banks?
Convenient Tales from Modern Japan
28: Hideki Kanda: Legal Explanations on Bank Behaviour
29: Luke Nottage: Redirecting Japan's Multi-level Governance
30: John C. Coffee, Jr.: Gatekeeper Failure and Reform: The
Challenge of Fashioning Relevant Reforms
31: Hiroshi Oda: The Changing Worlds of the CPAs in Japan
Summary of Discussions
32: Christoph Kumpan, Heike Schweitzer: Changes of Governance in
Europe, Japan, and the U.S.: Discussion Report
Annexes
Annex 1: Modernising Company Law and Enhancing Corporate Governance
in the European Union - A Plan to Move Forward (EU)
Annex 2: Combined Code on Corporate Governance (US)
Annex 3: Sarbanes-Oxley Act (UK)
Klaus J. Hopt is Professor of Law and Director of the Max Planck
Institute for Foreign Private Law and Private International Law,
Hamburg
Hideki Kanda is Professor of Law, University of Tokyo. Mr Kanda
served as Visiting Professor at the University of Chicago Law
School in 1989, 1991, and 1993 and at Harvard Law School in 1996.
His main areas of specialization include corporate law, securities
regulation and banking regulation. Harald Baum is Senior Research
Fellow and head of the Japan Law Department, Max Planck Institute
for Foreign Private Law and Private International Law, Hamburg;
senior lecturer in law, University of
Hamburg; Research Associate, European Corporate Governance
Institute, Brussels. PD Dr Baum has served as Alexander von
Humboldt Foundation/Japanese Society for the Promotion of Science
Research Fellow at
Kyoto University. He is the founding and executive editor of the
Journal of Japanese Law and has published intensely on business
law, corporate governance, takeovers, and capital markets
regulation in Germany, the EU, Japan, and the US Eddy Wymeersch,
Professor of Commercial Law, University of Ghent
`Review from previous edition ... at the heart of this book lies a
string of subjects connected to the present discussions on
corporate governance.'
International Business Lawyer
`... timely and significant collection of essays by a distinguished
group of international scholars ... Throughout the collection is
infused with the symbiosis between company law and the capital
markets.'
European Business Organization Law Review
`This thought-provoking, insightful, and timely collection gives
the reader a uniquely diverse perspective on current research at
the highest level. It is highly recommended and deserves a wide
readership among company law and capital markets scholars.'
European Business Organization Law Review
`The contributions offer a good deal of knowledge and a collection
of insights into selected pieces of the cake.'
Law Quarterly Review
`... this publication is to be welcomed for its propitious timing.
It affords us the opportunity to reflect on recent developments in
the United Kingdom against a broader international context.'
Law Quarterly Review
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