Search

In this paper, we ask whether benefit corporations have a role to play in the emerging EU sustainable governance framework. In sec. 2, we briefly introduce the benefit corporation with regard to US law and to the laws of some EU member States, such as France and Italy, which have adopted this company form. In sec. 3, we focus on the benefit corporation’s purpose and function from a comparative law perspective, asking whether benefit corporations perform a useful function internationally. We argue that corporate purpose tends to be a flexible concept across countries and that benefit corporations are not the only way to reconcile profit and social values in business corporations. In sec. 4, we compare the critical features of the law relating to benefit corporations with the essential elements of the emerging sustainable governance framework. We show that the latter partially overlaps with the laws on benefit corporations and to some extent is a substitute for them, therefore reducing the potential interest in this corporate form. In sec. 5, we conclude that mainly firms which the new EU sustainable governance framework does not apply to, such as non-listed SMEs, will adopt the benefit corporation model when available in their jurisdiction, while other companies may still adopt it mostly for communicating their commitment to sustainability.

The legal regime applicable to groups of companies in the European Union has been discussed for many years. National legislations have been adopted in a certain number of Member States, and new initiatives are being considered by the European Commission and in academic writing. The central issues in groups of companies is the relationship between the controlling shareholder, often the parent company and the subsidiaries, and the potential for abuse to the detriment of the latter’s minority shareholders and creditors. Several answers have been formulated, ranging from a duty of the parent to indemnify the subsidiary for the charges imposed by the parent, to the acceptance of these charges provided they result in some benefit to the subsidiary and do not endanger the subsidiary’s solvency. In another approach, these issues may be solved by other common company law, e.g., on the basis of the unfair prejudice provisions. With respect to shareholder and creditor protection, a comparative analysis concludes that there is no need for additional regulatory safeguards. The present approaches indicate that group relations are often characterised by conflicts of interest. Therefore, it is proposed to develop a standard for dealing with these, especially under the form of related party transactions. The specific conditions for dealing with intragroup related party transactions are submitted for further discussion.

This chapter proposes a system for EU centralization of scrutiny and approval of public offers of securities or of listing of companies mature enough to conduct an IPO or those that seek a listing following a secondary offer. It first discusses the European Securities and Markets Authority's unique presence in the EU regulatory edifice and the true ambit and interpretation of its powers. It then sets out the preferred architecture and ambit for a possible European Listing Authority and Capital Markets Union–Securities and Exchange Commission (CMU–SEC), and the advantages their establishment could bring to the CMU project. Next, it discusses the legality of a possible CMU–SEC and brings the different strands of the present analysis into a comprehensive solution.

In this paper, I try to assess the likely impact of the Single Supervisory Mechanism (SSM) on eurozone banking markets. I start by analysing the predictions made by economists and policy-makers with regard to the deeper integration of financial markets which may derive from the Banking Union. I then try to identify the regulatory weaknesses that may throw uncertainty on the benefits commonly expected from the Banking Union. Firstly, I highlight the limits of EU supervisory centralisation as shaped by the reforms enacted after the 2008 financial crisis. Secondly, I analyse the limits of the SSM, which, to some extent, is still grounded on supervisory cooperation despite the fact that the ECB has powers of direction and substitution with respect to national supervisors. I argue, in particular, that the SSM represents a system of semi-strong centralisation, which may still give rise to agency problems, particularly in the relationships with supervisors of non-euro area countries that are still governed by the EU system of enhanced cooperation. Thirdly, I examine the decoupling of supervision from regulation, which derives from the fact that the ECB lacks sufficient regulatory powers when acting as a supervisor of the eurozone banking systems. The separation of regulation—which is harmonised (often with excessive detail) at EU level—and supervision—which is centralised in the euro area—may create problems to the extent that the single supervisor cannot create a prudential rulebook for the eurozone but is subject to EU prudential regulation and national law provisions, often unduly limiting its supervisory discretion.

In this paper we analyze the relationship between conformity to executive remuneration standards, corporate ownership, and the level and structure of CEO compensation for large European listed companies in the years 2007 and 2010. We show that controlled corporations conform to executive remuneration standards less than widely held firms. We also show that weaker compliance is associated with lower CEO pay and more cash-based incentive structures. We interpret this “conformity gap” from the perspective of individual firms and from a societal perspective, with the aim to contribute to frame the policy questions concerning executive pay at controlled corporations. Different policy implications depend on whether the conformity gap reflects a lower need for managerial incentives, given the monitoring by controlling shareholders, or the latter’s willingness to extract private benefits of control. We argue in this paper that the former hypothesis prevails, so that regulators should abstain from increasing the level of enforcement of executive remuneration standards.

The consequences of the Brexit vote will be felt throughout the legal systems, both in the UK and in the EU. The legal consequences of the Brexit decision and the process which will lead to the withdrawal of the UK, raises numerous questions many of which are in the process of being analysed, and possibly solved. In the field of company law, with respect to cross-border matters, UK companies will be exposed to national laws in the EU States after the Treaty freedom of establishment will not further apply. This may lead to tensions between the two systems of recognition of foreign companies, i,e. the incorporation theory and the seat theory. Foreign companies active in seat jurisdictions may in the future be disqualified if their seat is effectively established in the seat State. Access may become more difficult, not on the basis of company law, but of sectoral regulations. In other part of the regulatory system, such as the rules on cross-border mergers, on rights of shareholders in listed companies, or disclosures to be made, equivalence of rules, as decided by the European Commission, will be the key factor. Additional issues will arise for the cross-border recognition of accounting standards and for the activity of auditors.

In this paper we analyze the relationship between conformity to executive remuneration standards, corporate ownership, and the level and structure of CEO compensation for large European listed companies in the years 2007 and 2010. We show that controlled corporations, either family or State owned, conform to executive remuneration standards less than widely held firms. We also show that weaker compliance is associated with lower CEO pay and more “conservative” incentive structures. We interpret this “conformity gap” from the perspective of individual firms and from a societal perspective, with the aim to contribute to frame the policy questions concerning executive pay at controlled corporations. Different policy implications depend on whether the conformity gap reflects a lower need for managerial incentives, given the monitoring by controlling shareholders, or the latter’s willingness to extract private benefits of control. We argue in this paper that the former hypothesis seems to prevail, so that regulators should abstain from increasing the level of enforcement of executive remuneration standards.

The legal regime applicable to groups of companies in the European Union has been discussed for many years. National legislations have been adopted in a certain number of member states, and new initiatives are being considered by the European Commission and in academic writing. The central issues in groups of companies is the relationship between the controlling shareholder, often the parent company and the subsidiaries, and the potential for abuse to the detriment of the latter’s minority shareholders and creditors. Several answers have been formulated, going from a duty of the parent to indemnify the subsidiary for the charges imposed by the parent, to the acceptance of these charges provided they result in some benefit to the subsidiary and provided they do not endanger the subsidiary’s solvency. In a third approach, these issues may be solved by other common company law, e.g. on the basis of the unfair prejudice provisions. With respect to shareholder and creditor protection, a comparative analysis concludes that there is no need for additional regulatory safeguards. The present approaches indicate that group relations are often characterised by conflicts of interest. Therefore, it is proposed to develop a standard for dealing with these, especially under the form of Related Party Transactions. The specific conditions for dealing with intragroup related party transactions are submitted for further discussion.

This article considers the regulation “on the books” of executive pay across the EU and the evidence “in action” on corporate practice concerning executive pay (based on disclosures by FTSE Eurofirst 300 companies) in relation to the best practice recommendations set out in two key Commission Recommendations from 2004 and 2005. It finds that Member State implementation of the two Recommendations has been patchy and, in particular, that reliance on Corporate Governance Codes has not resulted in the embedding of good practices, particularly with respect to disclosure concerning executive pay, across Europe's largest companies. It argues that if the EU is to succeed in promoting stronger alignment between shareholder and manager interests by means of the executive pay contract, closer attention is needed to remuneration governance and that a mandatory, harmonised disclosure obligation should be introduced. Although the Commission has recently adopted a 2009 Recommendation on executive pay in the corporate se...

Key points: • This article considers how the recent market turmoil affected national banking systems, thereby prompting state measures; • It describes the remuneration problems shown by the financial crisis: rewards for failure; short-term behaviour; inappropriate design of performance incentives; practice of overstating profits reflected in cash bonuses and short-term gains through stock options; and guaranteed bonuses unrelated to financial results and severance payments. • The article discusses the conditions relative to bankers’ remuneration structures and policies imposed on ailing banks by governments in their rescue packages, providing a transatlantic perspective and an analysis of the UK, French and German frameworks. • The changes in remuneration policies are illustrated through two case studies: one study compares the policies at Lloyds and Royal Bank of Scotland with those at non-ailing banks in the UK; the other compares remuneration policies at UBS and Credit Suisse. • The article analyses how the debate extended internationally to the whole banking sector, with managers’ pay becoming a new area for regulation and supervision post-crisis. • The conclusion reached is that the crisis generated a race to the top in the area of bankers’ pay, leading large banks to self-restraint and to a longer term, risk-cautioned approach to incentive practices.

In this paper, we examine independent directors as a legal transplant from dispersed ownership systems to concentrated ownership ones. We focus on Continental Europe, Japan, Brazil, Russia, India and China. Our main thesis is that independent directors have a different and relatively narrower role to perform in controlled corporations. We also argue that in the law and practice of controlled corporations independent directors often play an even weaker role than economic theory would predict. In order to prove our thesis, we compare the legal regimes applicable to independent directors across countries. We find that the notion and functions of independent directors vary remarkably across our sample jurisdictions. Firstly, the role of independent directors is not always specified. Secondly, independent directors often play a role in audit committees and, less frequently, in nomination and remuneration committees. However, they are rarely tasked with the vetting of related-party transactions and other conflicts of interest situations. Moreover, controlling shareholders often perform some of the functions that are typical of independent directors in diffuse ownership, such as the hiring and firing of managers and the setting of their remuneration. We conclude that the weak role of independent directors in several countries shows that they are often appointed mainly to accommodate investors’ preference for western-style corporate governance.

The European Commission launched, in April 2014, a new initiative to amend the shareholder rights directive as regards to the encouragement of long-term shareholder engagement. Under this heading, the Commission proposal intends to grant rights to shareholders concerning director remuneration (say on pay) and related party transactions. Moreover, it also imposes duties concerning an engagement policy on institutional investors and asset managers and gives rights to the management concerning shareholder identification. This paper deals with shareholder engagement and identification by referring to the initial Commission proposal. Both instruments are motivated by referring to the support shareholders have allegedly given to managers’ excessive risk taking before the financial crisis. The current level of “monitoring” of investee companies and engagement by institutional investors and asset managers is considered inadequate, leading to suboptimal governance of listed companies (see preamble 2). It is questionable whether the financial crisis revealed weak governance in listed companies and whether the rules proposed are likely to meet the objectives as stated in the directive.

In this paper, I analyse the rise of mandatory structure of bankers’ pay in Europe as outcome of criticism of pre-crisis remuneration practices at financial institutions. Whether flawed bankers’ pay contributed to the financial crisis is still debated amongst scholars. It appears more likely that insufficient prudential regulation and flawed risk management contributed to banks’ undertaking risks that were later proven to be excessive from a societal perspective. All this would have suggested improving risk management systems and reforming areas of prudential regulation such as capital adequacy and organizational requirements, rather than intervening directly on bankers’ incentives. Nonetheless, governments and legislators, under the pressure of the media and public opinion, proceeded to extensive reforms of bankers’ remuneration, with reference to both the top executives and other risk-taking/high-earning employees at various levels of the institutions concerned. Indeed, the FSB principles and standards cover not only remuneration governance and disclosure, but also remuneration structures. Both the fixed and the variable remuneration components and the relationship between the same are subject to detailed regulation. As a result, the international standards have nature of “rules” and have been implemented as such. The EU in particular has followed a strict approach to the implementation of the FSB standards and has also departed from the latter by introducing an unprecedented cap on variable remuneration in CRD IV. I analyse this cap from a legal and economic perspective, showing that its rationale is flawed and that unintended consequences may derive from it as a result. Moreover, the cap is inconsistent with other aspects of CRD IV which incorporate the international standards on variable pay.

In this paper, I try to assess the likely impact of the Single Supervisory Mechanism (SSM) on Eurozone banking markets. I start by analysing the predictions made by economists and policy makers with regard to the deeper integration of financial markets which may derive from the Banking Union. I then try to identify the regulatory weaknesses that may throw uncertainty on the benefits commonly expected from the Banking Union. Firstly, I highlight the limits of EU supervisory centralisation as shaped by the reforms enacted after the 2008 financial crisis. Secondly, I analyse the limits of the SSM, which is to some extent still grounded on supervisory cooperation despite the fact that the ECB has powers of direction and substitution with respect to national supervisors. I argue, in particular, that the SSM represents a system of semi-strong centralization, which may still give rise to agency problems particularly in the relationships with supervisors of non-euro area countries that are still governed by the EU system of enhanced cooperation. Thirdly, I examine the decoupling of supervision from regulation deriving from the fact that the ECB lacks sufficient regulatory powers when acting as a supervisor of the Eurozone banking systems. The separation of regulation – which is harmonized (often with excessive detail) at EU level – and supervision – which is centralized in the euro area – may create problems to the extent that the single supervisor cannot create a prudential rulebook for the Eurozone, but is subject to EU prudential regulation and national law provisions often unduly limiting its supervisory discretion.

This paper shows how clear divergences arise across the EU in how executive remuneration is structured. Sharp differences also occur in the adoption of best practices in pay-setting and in the disclosure of executive pay. These divergences are broadly in line, as agency theory predicts, with block-holding and dispersed ownership governance profiles. While the EU has recently adopted two important 2004 Recommendations on executive pay, the paper argues that EU-led reforms should be undertaken with care. Harmonization should be limited and only address disclosure. Disclosure is central to the adoption of effective incentive contracts in that it can manage the particular agency costs of executive pay, across dispersed and blockholding systems, without intervening in governance choices and structures. Any other interventions in the pay process carry the risk of distorting competition and interfering with the dynamics of different ownership structures and economic contexts.

This article considers the regulation of executive pay practices in listed companies in the European Union and the empirical evidence of pay practices, based on the FTSE Eurotop 300 membership’s annual report for 2001. The analysis is placed in the context of the dispersed ownership/blockholding ownership faultline which runs across EU corporate governance, and in light of recent EU initiatives, particularly the Commission’s May 2003 Company Law Action Plan and the 2004 Consultation on Executive Remuneration. The outstanding feature of executive pay in the EU is the extent to which it reflects the interconnection between pay and corporate governance or ownership structures. Executive pay, regarded as a management incentive contract, is a key agency-cost control mechanism in dispersed ownership systems. Legal controls on pay are accordingly at their most sophisticated, in terms of promoting the adoption of an optimal contract for shareholders, in those EU Member States where dispersed ownership dominates. These systems also see the heaviest reliance in practice on high-powered, equity-based, incentive-driven pay contracts. In blockholding systems, controlling shareholders can, in theory, monitor management directly without the need for an incentive contract. Pay controls are accordingly less sophisticated and, as revealed by the FTSE Eurotop 300 evidence, the prevalence of high-powered equity-based incentive contracts is reduced. Different concerns arise, however, as to the protection of minority shareholders from controlling blockholders.

With contributions by distinguished scholars from legal and financial backgrounds, this collection of essays analyses four main topics in the corporate governance of European listed firms: (i) board structure, composition and functioning and their interaction with ownership structure; (ii) board remuneration; (iii) shareholder activism and (iv) corporate governance disclosure based on the 'comply or explain' approach. The authors provide new comparative evidence and analyse its implications for the policy debate. They challenge the conventional wisdom that corporate governance in European firms was systematically dysfunctional. While proposals aimed at increasing disclosure and accountability are usually well-grounded, caution is suggested when bringing forward regulatory changes with respect to proposals targeting specific governance arrangements, especially in the fields of board composition and shareholder activism. They argue that the 'comply or explain' principle should be retained and further efforts should be exercised to enhance disclosure.

In this paper we measure the impact of recent reforms on directors’ remuneration by comparing the remuneration practices at large European listed companies before and after the financial crisis. We analyse the data concerning directors’ remuneration at FTSE Eurofirst 300 Index companies and assess to what extent the changes occurred between 2007 and 2010 reflect the economic crisis determined by the 2008 financial turmoil and the remuneration reforms generated by the same. Our analysis reveals that country-specific characteristics such as corporate governance, firm ownership, and the nature and quality of the legal system still have a relevant impact on the level and structure of directors’ pay.Section I briefly connects our work with previous studies in this area, while section II introduces some core aspects of recent EU and national reforms. In section III, we analyse the data concerning remuneration governance and disclosure, and show that all firms have experienced improvements. However, variations persist reflecting national regulations and practices. Moreover, companies with more dispersed ownership tend to comply better with remuneration governance and disclosure requirements. Our data confirm and extend to Europe theoretical predictions and previous country-specific empirical evidence about the impact of ownership concentration on remuneration governance and disclosure. In section IV, we analyse pay structure and levels. We measure the level of total compensation, the variable component including the estimated value of annual stock grants and stock options. The evolution of total compensation between 2007 and 2010 reveals that pay practices are permeable to the effect of the financial crisis. Board total compensation decreases in most European countries. However, significant differences emerge between financial and non-financial companies, with board compensation at financial firms decreasing rather significantly, while non-financial firms experience less relevant changes. Also the CEO compensation level and structure significantly changed in 2010 relative to 2007, mainly as a result of the reduction in variable cash compensation. This is partly due to the negative performance of firms in 2010. However, our results show that these changes may be also related to other factors, in particular the regulatory pressure on financial firms in the relevant period. Indeed, several items in the pay structure of financial firms go in the direction indicated by regulators, i.e. better focus on the risk implications of pay, appropriate balance between variable and fixed compensation, and a substantial portion of variable compensation awarded in shares or share-linked instruments. Section V concludes by advancing some policy suggestions.

This paper contains the European Company Law Experts' response to one of the main issues raised in the European Commission’s Action Plan of 12 December 2012, namely how to make corporate governance codes more effective. The concept of “codes’ effectiveness” has two meanings: effectiveness of the comply-explain mechanism (disclosure effectiveness) and level of adoption of the codes’ recommendations themselves (substantive effectiveness). The ECLE believes that it is of crucial importance to keep the advantages of regulation by codes while finding adequate improvements of the quality of the reports and the explanations. The relationship between the content of corporate governance codes and disclosure is discussed. A “culture of departure from code recommendations”, if well explained, is needed. The quality of corporate governance reports and the explanations should primarily be improved by incentives, but non-legal and legal sanctions may help. Improvements may also be possible by mobilizing private actors and/or by charging public or private agents and agencies with inspection and monitoring.

This is the first chapter in a volume on “Boards and Shareholders in European Listed Companies: Facts, Context and Post-Crisis Reforms” (M. Belcredi and G. Ferrarini eds., Cambridge University Press forthcoming 2013). We offer an overview of the volume, placing the same in the context of recent EU reforms and of corporate governance theory, and summarizing the main outcomes of the various chapters. In addition, we offer some policy perspectives based on the theoretical and empirical outcomes of the research project of which this volume is the product. We analyse four main topics in the corporate governance of European listed firms: board structure/composition and its interaction with ownership structure, board remuneration, shareholder activism and corporate governance disclosure based on the “comply-or-explain” approach. For each of them, this volume provides new evidence and derives specific implications, relevant for the policy debate. Basically, proposals aimed at increasing disclosure and accountability at the European level look generally well-grounded: this is true, in particular, for disclosure about managerial compensation and compliance with national governance codes based on the “comply-or-explain” principle. On the opposite, we suggest caution when evaluating proposals targeting specific governance arrangements, which may actually lead to unintended consequences. Even though the Commission has – so far – refrained from adopting an excessively intrusive stance, further analysis may be needed before intervening in the fields of board composition and shareholder activism.

In the quest for possible causes of the recent financial crisis, commentators often argue that bank executives had poor incentives. Critics claim, in particular, that executive compensation was not properly aligned with long-term performance (Bebchuk and Fried 2010; Posner 2009), while regulators seek ways to change practices in order to restore this alignment. At least two questions arise with respect to incentive practices. The first is whether executive compensation at banks before the crisis was predominantly short-term oriented. Academics and politicians answer this question differently. The latter argue, with the support of the media, that widespread short-term incentives to bank managers were at the root of the recent crisis. On the academic side of the current debate, recent empirical studies reveal no proof that short-term incentives led to excessive risks. In particular, an empirical study examined in Part 1 of this Chapter shows that, in the United States at least, pay was generally aligned with the long-term interest of shareholders (Fahlenbrach and Stulz 2010). Similar studies are not available for Europe because data needed to calculate the value of stock options and long-term incentives is generally not publicly available. The second question, which is further analyzed in Part 1, is whether banking regulation should cover

This paper constitutes the European Company Law Experts' response to the European Commission's Green Paper "The EU Corporate Governance Framework". The paper contains responses to the individual questions put forward by the Commission as well as an introductory statement. In this statement we first set out briefly the rationale for having rules on corporate governance, whether those rules are determined at national or EU level and whether they are contained in hard or soft law. We then consider the rationale for taking action at EU level. Thirdly, we make a suggestion as to how the choice between hard and soft law should be made. Fourth, we consider the overall implications of the previous arguments for the division of rule-making between the EU and Member States.

In this paper, we examine recent developments and new perspectives of European banking regulation from the viewpoint of multinational banks. Our approach is justified on at least three grounds. First, cross-border banking groups were at the centre of the recent financial turmoil, which seriously affected many of them. Second, and as a consequence, recent reforms in Europe and elsewhere were particularly addressed to cross-border banking groups and other systemically relevant institutions. Third, European harmonization was largely built along the model of the (stand-alone) cross-border bank mainly operating through branches, whereas European financial markets see cross-border banking groups with subsidiaries in several countries as major players. After introducing the mismatch between national banking supervision and international banking groups, we analyze the recent developments of EU cross-border supervision with respect to both branch and subsidiary structures of multinational banks. Subsequently, we examine the proposed new regulatory architecture, which is based on the distinction between macro- and micro- prudential supervision, and includes new European bodies and a network of European financial supervisors. We claim that the proposed new European supervisory architecture should be backed with an appropriate framework for crisis management and resolution. Due to the specificities of multinational banks and the unique features of their corporate governance, we argue for uniform rules and a set of tools for early intervention and resolution. Otherwise, fragmentation of ailing institutions along national borders will limit the scope for and possibly lead to a reversal of the European financial integration process. From this perspective, the steps taken so far in the EU, while remarkable, do not seem sufficient. Moreover, their effectiveness very much depends on how crisis management and resolution will be regulated.

The relationship between best execution and market transparency deserves careful consideration in an analysis of MiFID. Best execution has mainly been studied with respect to equity trading, which is generally exchange based and widely regulated also with respect to market transparency. In this chapter, however, I focus on bond trading, which takes place predominantly over-the-counter (OTC) and is not subject to MiFID’s transparency provisions. After introducing the topic (part I), I offer a critical view of the transparency requirements applicable to equity trades and their formation (part II). I then examine the recent policy discussion on non-equities market transparency, as reflected in the Report issued by the European Commission under Article 65 (1) of the MiFID, examining whether the requirements for pre-trade and post-trade information should be extended to non-equities markets (part III). I finally consider the role of best execution in bond markets, focussing on the impact of transparency on order execution for retail investors (part IV). In part V, I draw some conclusions.

This paper analyses the regulatory framework which applies to the determination of directors’ remuneration in Europe and the extent to which European firms follow best practices in corporate governance in this area, drawing on an empirical analysis of the governance systems which European firms adopt in setting remuneration and, in particular, on an empirical assessment of their diverging approaches to disclosure. These divergences persist despite recent reforms. After an examination of the link between optimal remuneration, corporate governance and regulation and an assessment of how regulatory reform has evolved in this area, the paper provides an overview of national laws and best practice corporate governance recommendations across the Member States following the adoption of the important EC Recommendations on directors’ remuneration and the role of non-executive directors in 2004 and 2005, respectively. This overview is largely based on the answers to questionnaires sent to legal experts from seventeen European Member States. The paper also provides an empirical analysis of governance practices and, in particular, firm disclosure of directors’ remuneration in Europe’s largest 300 listed firms by market capitalisation. The paper reveals that, notwithstanding a swathe of reforms across the Member States in recent years and harmonisation efforts, disclosure levels still vary from country to country and are strongly dependent on the existence of regulations and best practice guidelines in the firm’s home Member State. Convergence in disclosure practices is not strong; only a few basic standards are followed by the majority of the firms examined and there is strong divergence with respect to most of the criteria considered in the study. Consistent with previous research, our study reveals clear differences not only with respect to remuneration disclosure, but also with respect to shareholder engagement and the board’s role in the remuneration process and in setting remuneration guidelines. Ownership structures still ‘matter’; these divergences tend to follow different corporate governance systems and, in particular, the dispersed ownership/block-holding ownership divide. They do not appear to have been smoothed since the EC Company Law Action Plan was launched and notwithstanding the harmonisation that has been attempted in this field.

B. Joint-Stock Companies . 664 I. Corporate Finance. 664 1. Financial Instruments . 664 a) Shares. 664 b) Increase and Reduction of Capital. 667 c) Bonds. 668 d) Hybrids. 670 2. Segregation of Assets. 671 a) Pool of Assets Intended for a Specific Business. 671 b) Insolvency of the Company. 672 c) Insolvency of the Specific Business. 673 d) Non-recourse Financing. 674 3. Leveraged Buy-outs. 674 II. Corporate Governance. 675 1. Governance Models . 676 a) Traditional Governance Structure . 676 b) One-tier Structure . 677 c) Two-tier Structure. 678 2. Conflicts of Interest . 679 3. Directors'Liability. 680 4. Shareholders' Meetings . 682

Executive pay practices are currently a "cause celebre" of corporate governance in the media, among regulators, in the marketplace, and in academia, in the US, the UK, and Europe. The purpose of this paper is to examine the approaches taken across Europe to the regulation of executive pay practices in listed companies. The outstanding feature of the regulation of executive pay across Europe is the extent to which it reflects the interconnection between pay and corporate governance. This link is expanded on in Part B with respect to the different rules found across European legal systems and how they address/prioritize the concerns which executive pay potentially raises. The role of public regulation is relatively important for disclosure of executive pay, while best practices and private codes generally have some impact on the way in which executive compensation is set for listed companies. On the whole, there is some convergence in continental Europe towards the Anglo-American model. The merits of full disclosure of executive remuneration are increasingly acknowledged in corporate governance codes and reports, while the use of remuneration committees is on the rise in the Continent. The research data on reported pay practices for 2001 among FTSE Eurotop300 companies reveal a reliance on performance-based pay generally and a somewhat variable adoption of share options programmes and other equity-based incentive contracts, which are generating difficulties in dispersed ownership systems. The executive pay problem may therefore be a particular cost of dispersed ownership, and the particular legal and policy responses, which are widely debated a specific feature of Anglo-American corporate governance. Nonetheless, the faultline between both systems, which is evident from the different approaches European states have taken, calls for particular care in the adoption of pan-European reforms but also in the transplanting of reforms based on the Anglo-American experience.

This article examines the current controversy as to the effectiveness of executive remuneration as a tool of corporate governance but places the analysis in the particular context of the dispersed ownership/blockholding ownership faultline which runs across European corporate governance. It reveals that there is a close relationship between governance systems and the sophistication and rigour of the regulatory response to executive remuneration. To place the European responses to the executive remuneration question in context, Part I sets out the main theoretical arguments which frame the executive remuneration debate and examines the link between remuneration and corporate governance. Part II examines, in the light of the preceding discussion, the regulatory strategies adopted by EU Member States with regard to executive remuneration and reveals the extent to which their responses track corporate governance systems in terms of sophistication and degree of intervention in remuneration practices, particularly with respect to disclosure. Overall, regulatory strategies focus on company disclosure and corporate governance structures, and are grounded both in public regulation and in corporate governance best practices. Part III discusses reform perspectives with particular reference to the 2002 Winter Report and the 2003 Company Law Action Plan.

This paper shows the complexity of some policy issues involved in the reform of European securities regulation and the difficulties encountered in formulating adequate regulatory responses. After reviewing the main criteria which support a claim for securities regulation harmonisation, I analyse the limits of the new institutional structure suggested by the Lamfalussy report. I then examine the European Commission's orientations as to the adoption of high level principles for regulated markets. I apply the results of my previous research in this area to criticise the Commission's proposals concerning transparency obligations and the treatment of ATS and internalisation of orders. I conclude that, on the whole, the proposed principles would not significantly improve the conditions for the growth of pan-European trading systems. I also examine the proposed prospectus directive, in the light of harmonisation of the disclosure standards. Prospectus reform should have a positive impact on the primary markets, by reducing transaction costs and regulatory obstacles to cross-border public offers of securities. However, it is not certain that such a reform will be sufficient to achieve far-reaching changes in current practices of domestic offers and "international style offerings." Moreover, the proposed directive would not substantially affect global offers, particularly those concerning securities issued by third countries companies. In addition to these observations, I conclude that in any case the draft directive should be amended as to the scope of the prospectus requirement and the preference for issuer domicile over issuer choice.