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Company Law: Theory, Structure, and Operation [Paperback]

Brian R. Cheffins

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Table of Contents

Table of abbreviations
Table of Cases
Table of Legislation
Introduction
1. Overview of the Book
2. Terminology
PART I -- COMPANY LAW THEORY
1. ECONOMICS AND THE STUDY OF COMPANY LAW
1. The Promotion of Efficiency as a
Justification for Government Intervention
Economic theory and the rational actor
Exchanges, markets, and allocative efficiency
Market failure as a justification for regulation
Clarification of the meaning of efficiency
2. Regulation Can Give Rise to Costs as Well as Benefits
3. The Economics of Government Regulation
4. The Impact of Legal Rules on Private Transactions
Professor Ronald Coase and 'The Problem
of Social Cost'
Examples of the limited role law can play
in companies
Situations where the law matters
5. The Company as a Nexus of Contracts
The role of the firm in economic activity
The company and other types of business
enterprises: common characteristics
Basic elements in bargains between
company participants
2. KEY PARTICIPANTS IN COMPANIES
1. Shareholders
Duration
Return
Risk
Control
Conflicts of interest
Bargaining
2. Creditors
Duration
Return
Risk
Control
Conflicts of interest
Bargaining
3. Employees
Duration
Return
Risk
Control
Conflicts of interest
Bargaining
4. Directors
Duration
Return
Risk
Control
Conflicts of interest
Bargaining
5. Management
Duration
Return
Risk
Control
Conflicts of interest
Bargaining
3. JUSTIFICATIONS FOR STATE INTERVENTION IN
COMPANY AFFAIRS
1. Justification for Intervention Based on
Efficiency Considerations
Imperfect information
Costs of contracting
Judgement problems
Negative externalities
Collection action problems and related types of strategic behaviour
2. Arguments for Intervention Based on
Considerations Other Than Efficiency
Fairness
Participation
Protection of community ideals
Preservation of morality in the market system
3. Efficiency Revisited
4. PROBLEMS WITH STATE INTERVENTION
1. Private Ordering, Market Forces and the
Law
Regulation may replicate steps company participants take
Undermining incentives which private actors have to solve problems
Market protection for transactors
2. Problems Associated with the
Formulation and Enforcement of Laws
The role of interest groups
Time constraints
Inappropriate incentives
Lack of familiarity with the marketplace
Enforcement and implementation problems
Costs generated by regulation
3. Freedom and Autonomy
4. Conclusion
PART II -- STRUCTURE OF COMPANY LAW
5. THE CLASSIFICATION OF COMPANY LAW RULES
1. A Typology of Company Law Rules
2. Complexities Associated with the
Classification Process
3. Mandatory Rules
Problems with mandatory rules
Arguments for mandatory rules (i) self-defeating waivers and shareholder
voting
Arguments for mandatory rules (ii) regulation of third-party effects
Arguments for mandatory rules (iii)
achievement of goals not linked to
efficiency concerns
Concluding comments
4. Permissive Rules
The role of permissive rules
Drawbacks with permissive rules
5. Presumptive Rules
The role and significance of presumptive rules
Pros and cons of presumptive rules
6. Conclusion
6. COMPANY LAW AND THE HYPOTHETICAL
BARGAINING MODEL
1. How to Apply the Hypothetical
Bargaining Model -- An Introduction
2. Generalized Approach to Hypothetical Bargaining Analysis
Ascertaining which categories of company
participants are involved
Isolating the dynamics likely to
influence the relevant company participants
Ascertaining how company participants
would deal with an issue under
hypothetical bargaining conditions
Difficulties associated with formulating rules
Rule types and the hypothetical
bargaining model
3. The Individualized Approach to Hypothetical Bargaining Analysis
4. Contracting and the Hypothetical
Bargaining Model
Should there be deference to contractual terms?
The hypothetical bargaining model and
information-forcing rules
5. Conclusion: An Evaluation of the Hypothetical Bargaining Approach
The hypothetical bargaining model and efficiency
The hypothetical bargaining model and autonomy
The hypothetical bargaining model as an
intellectual construct
7. THE JUDICIARY AND COMPANY LAW
1. Company Participants and the Judiciary
Expertise
How judges define company participants' rights and obligations
Predictability
Costs
2. Parliament and the Courts
Interpretation of legislation -- what is at stake
Using statutory drafting to send signals to the judiciary
Interpretation of legislation in company
law cases
Statutory measures and judicial law-making
Detailed legislation and judicial expertise
8. SELF-REGULATION IN THE UNITED KINGDOM: AN EVALUATION
1. Overview of the United Kingdom's Self-Regulatory System
2. Advantages of Self-Regulation
Flexibility
Expertise
Cost
3. The Disadvantages of Self-Regulation
Bias
Insufficient co-ordination of government policy
Enforcement problems
4. Conclusion
9. THE EUROPEAN UNION AND UK COMPANY LAW
1. Overview
2. Can There Be a Market for
Incorporations in the European Union?
Legal framework
Nature of demand and supply in a market
for incorporations
Demand in the EU
Supply -- will the United Kingdom compete?
3. How Would the Law Change if There Were
a Market for Incorporations?
4. Merits of a Market for Incorporations
5. Conclusion
PART III -- OPERATION OF COMPANY LAW
10. SHAREHOLDERS: CONTRACTING, REMEDIES AND EQUALITY
1. Section 14 of the Companies Act 1985 as
the Basis for Litigation by Shareholders
Judicial interpretation of section 14
Restricted enforcement of section 14 -- a rationale
Is reform of section 14 justified?
2. Shareholders' Remedies in Closely Held
and Publicly Traded Companies -- A
Rationale for a Different Approach
The law on shareholders' remedies
Is the difference in approach for closely
held and public companies justified?
How far should the courts go in granting
relief with closely held companies?
3. Equality and the Shareholder
Arguments in favour of regulation
designed to achieve equality objectives
Mechanisms other than company law are better suited to the task of ensuring
equal treatment
Costs associated with measures designed
to ensure equal treatment may be too substantial to justify regulation
Adverse impact on welfare-enhancing
conduct
Arguments in favour of equal treatment
are not as compelling as they appear to be
Justifying legal rules on grounds other than equality
11. CREDITORS: THE LAW'S TREATMENT OF THEIR
RELATIONS WITH SHAREHOLDERS AND MANAGERS
1. Limited Liability -- Asset or Liability
The case for reform
The positive attributes of limited
liability
Areas of concern
2. Accounting and Auditing Standards in
Small Companies
Overview of the law
Justifications for regulation
Those who run small business can make
appropriate choices
Creditors can acquire the information they want without regulation
Co

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