Kluwer Law International - Kluwer Law Online - European Business Law Review

ISSUE 1

'Moving Towards Stakeholderism? Constituency Statutes, Enlightened Shareholder Value, and More: Much Ado about Little?', Andrew Keay, Issue 1, pp. 1–49

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'Through the Legal Looking Glass: Exploring the Concept of Corporate Legal Strategy', Antoine Masson, Mary J. Shariff, Issue 1, pp. 51–77

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'Intellectual Property in the European Legal Context: Tools and Perspectives', Laura Moscati, Issue 1, pp. 79–92

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'Ownership Restrictions, Risk and Team Considerations in Family-owned Businesses', Lars-Göran Sund, Per-Olof Bjuggren, Issue 1, pp. 93–105

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Lars-Göran Sund, Per-Olof Bjuggren, 'Ownership Restrictions, Risk and Team Considerations in Family-owned Businesses' (2011) 22 European Business Law Review, Issue 1, pp. 93–105

At the start of a new business both team and risk aspects have to be considered in the choice of business form. The partnership form offers advantages in terms of team considerations while the corporate form provides limited liability which provides a way to handle the risk problems associated with owning a firm. The advantage of having a well synchronized team is important for many new firms and especially for cases where family relations are considered important. Seen from that angle the partnership form should be opted for. But risk is high up in the mind of founders. Events might unfold in an unexpected way and in the process the economy and well being of the family is at stake. The corporate form with limited liability is in this sense a very attractive choice that is commonly chosen. But with the corporate form comes transferability of ownership of shares without consent of other owners. The shareholder team might therefore change in an unexpected and unwelcome way. Therefore it is important to consider different types of transfer restrictions when a new corporate form of business is started. This aspect has not been much considered in practice and in the entrepreneurship literature. An accountant or a lawyer often has to remind an entrepreneur of the importance of stability in ownership positions.

In the paper we attempt to ascertain whether it is possible to foresee future complications and thus prepare already at the start of the business. The paper combines law and economics analysis of the different transfer restrictions found in various legal systems.

The paper was presented at the Seventh AGSE International Entrepreneurship Research Exchange, Feb. 2-5 2010, University of the Sunshine Coast.

ISSN: 0959-6941
ID: EULR2011004

'ECJ Settles Dispute over Italian Withholding Tax, Raising New Concerns about EEA Agreement', Frederik Zimmer, Issue 1, pp. 107–113

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'Book Review: Beate Sjåfjell, Towards a Sustainable European Company Law: A Normative Analysis of the Objectives of EU Law, with the Takeover Directive as a Test Case, Wolters Kluwer, The Netherlands, 2009', Charlotte Villiers, Issue 1, pp. 115–117

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ISSUE 2

'Antitrust Arbitration under the Arbitration Act 1996: A Commentary', Gordon Blanke, Issue 2, pp. 119–169

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'Regulating Listed Companies: Between Company Law and Financial Market Law in Danish Law', Nis Jul Clausen, Issue 2, pp. 171–188

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'Corporate Risks, Risk Bearing Ability and Equity', Lukas Handschin, Issue 2, pp. 189–210

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'The Swedish Capital Markets Law from a European Perspective', Fabian Walla, Issue 2, pp. 211–221

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'Prospectuses in Public Offering and a Functional Legal Framework: A Comparison between Germany and China', Yiliang Dong, Issue 2, pp. 223–235

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'The Regulation of Companies’ Capital in the European Union: What is the Current State of Affairs?', Katja Fuchs Mtwebana, Issue 2, pp. 237–260

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ISSUE 3

'A Market-Based Competition Enforcement Policy', Christopher JS Hodges, Issue 3, pp. 261–291

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'The Bank-Industry Relationship: A Comparative and Theoretical Approach', Alessandro Benocci, Issue 3, pp. 293–310

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'Resolving the Reverse Discrimination Paradox in the Area of Customs Duties: The Lancry Saga', Alina Tryfonidou, Issue 3, pp. 311–336

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'EU’s Monitoring of China’s Compliance with WTO Obligations', Qingjiang Kong, Issue 3, pp. 337–348

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Qingjiang Kong, 'EU’s Monitoring of China’s Compliance with WTO Obligations' (2011) 22 European Business Law Review, Issue 3, pp. 337–348

To World Trade Organization (WTO) members, admitting a country with a rapidly expanding economy into the WTO was a great experiment as the country would make significant decisions concerning resource allocation. In the history of the world trading system, never has a country of such trading importance and system incompatibility with WTO norms been admitted. Given China's trade weight, its anticipated gigantic trade surge would disrupt the market of its trading partners, and the rule-based multilateral trading system would be endangered if China opted to ignore the WTO rules.

To safeguard itself, the European Union (EU), like the United States, imposed upon China a comprehensive protocol which has more far-reaching obligations beyond the WTO. The EU also kept a close watch on China's behaviour in the WTO. With no task forces to monitor China's compliance, the EU has taken full advantage of the built-in mechanisms in the WTO, i.e., Trade Policy Review Mechanism and the Dispute Settlement Mechanism, as well as other measures (including bilateral channels and unilateral measures). This is pursued in the broader context of China's rise and with a broader vision of integrating a rising China into the existing global economic order. After all, a WTO-adhering China is conducive to cementing China's place in the global economy, buttressing the internal reform process, and strengthening the rule of law, which is in the interest of the world.

For the EU, the real question is how to encourage China to change its economy into one that relies more on domestic demand than on export on one hand, and one that allows market access to more imports and protects IPRs on the other hand. Therefore, monitoring shall be conducted to facilitate a smooth and thus healthy China-EU trade relation, which will .nally hinge on EU's patience and skills in dealing with a rising China.

ISSN: 0959-6941
ID: EULR2011016

'The Desirability of ’Centre Of Main Interests’ as a Mechanism for Allocating Jurisdiction and Applicable Law in Cross-Border Insolvency Law', Epp Aasaru, Issue 3, pp. 349–380

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'The Concepts of the Scottish (and Italian) Unilateral Promise and the English Unilateral Contracts – Comparative Law Reflections on “Call Options” and “Put Options” in the light of the Jurisdictions of England, Scotland and Italy', Pierdomenico de Gioia-Carabellese, Issue 3, pp. 381–398

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Pierdomenico de Gioia-Carabellese, 'The Concepts of the Scottish (and Italian) Unilateral Promise and the English Unilateral Contracts – Comparative Law Reflections on “Call Options” and “Put Options” in the light of the Jurisdictions of England, Scotland and Italy' (2011) 22 European Business Law Review, Issue 3, pp. 381–398

On the backdrop of the "put options" and "call options" - two common contracts in the practice of the capital markets - lies this comparative law analysis concerning the approach taken by three jurisdictions to the concept of the unilateral promise.

The outcome of the discussion is a criticism toward the English jurisdiction where this concept is missing, the same being replaced, in a non-convincing way, by the similar concept of the "unilateral contract". In addition to this, the requisite of the consideration, peculiarly requested in that jurisdiction, could even result in putting at risk, in some circumstances, the same validity and enforceability of these typologies of transactions.

As to the Scottish jurisdiction, stranded between its ancient Roman roots and its "British ties", the work seeks to demonstrate that, although the "unilateral promise" is accepted in this jurisdiction (these making both "put options" and "call options" theoretically safe under this jurisdiction), there is still a non-perspicuous categorization of the concept and, particularly, a possible "blunder" in the way this jurisprudence seems to put together, in a sort of conceptual "melting pot", both the promise to the public (in incertam personam) and that aimed at the conclusion of the contract. However, this possible erroneous view - quite transparent in the light of the civilian jurisdiction adopted as comparator (the Italian one) - could find a potential "way-out", should the Scots legal system eventually adopt a code in the matter of the contracts more in line with its traditions and peculiarities.

ISSN: 0959-6941
ID: EULR2011018

'Ever Decreasing Circles: Prohibition or Regulation of Share Buy-Backs under the Companies Act 2006 – A Legal Capital Perspective', Edwin Mkwananzi , Issue 3, pp. 399–418

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'Editorial Review: Book Review: Niamh Moloney, How to Protect Investors: Lessons from the UK and EU (Cambridge: Cambridge University Press 2010)', Iris H-Y Chiu, Issue 3, pp. 419–421

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ISSUE 4

'Editorial: Tribute to Professor Kurt Lipstein (1909-2006)', Neil Andrews, Issue 4, pp. 423–424

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'The Impact of Human Rights Law on Contract Law In Europe', Hugh Collins, Issue 4, pp. 425–435

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'The Interplay of Contractual Construction and Civil Justice: Procedures for Accelerated Justice', Gerard Mcmeel, Issue 4, pp. 437–449

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'A Revolution Deferred: The Impact of the South African Constitution on the Law of Contract', JJ Meiring, Issue 4, pp. 451–466

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'Fault and Breach of Contract in France and England: Some Comparisons', Solène Rowan, Issue 4, pp. 467–485

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'Mistake as a Vitiating Factor in English Contract Law – Comparing the UNIDROIT and European Draft Codes', Gareth Spark, Issue 4, pp. 487–499

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'Assessing the Content of Contracts: Implied Terms from a Comparative Perspective', Antoine Vey, Issue 4, pp. 501–516

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ISSUE 5

'Reinforcing the Market for Corporate Control', Blanaid Clarke, Issue 5, pp. 517–540

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'The Case Against Reform of the Takeover Bids Directive', Joseph A. McCahery, Erik P.M. Vermeulen, Issue 5, pp. 541–557

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'Is the Board Neutrality Rule Trivial? Amnesia about Corporate Law in European Takeover Regulation', Carsten Gerner-Beuerle, David Kershaw, Matteo Solinas, Issue 5, pp. 559–622

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'European Takeover Law: The Case for a Neutral Approach', Luca Enriques, Issue 5, pp. 623–639

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'The Core of Corporate Governance: Implications of the Takeover Directive for Corporate Governance in Europe', Beate Sjåfjell, Issue 5, pp. 641–708

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ISSUE 6

'Does a Loan to a Bank Qualify as a ‘Deposit’? On the Definition of ‘Deposit’ in Directive 94/19/EC, as Amended by Directive 2009/14/EC', Erik Werlauff, Issue 6, pp. 709–724

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'Revisiting the Fundamentals of Internal Market Law: Civil Society as a Third Sector between the State and the Market', Gautier Busschaert, Issue 6, pp. 725–739

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'Personal Data Breach Notification System in the European Union: Interpretation of “Without Undue Delay”', Faye Fangfei Wang, Issue 6, pp. 741–757

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'Non-executive Directors and Auditors in the Context of the UK Corporate Governance: Two (or Too Many?) “Pirandellian” Characters still in the Search of an Author?', Pierdomenico de Gioia-Carabellese, Issue 6, pp. 759–789

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'European Enterprise Models – New Chances and Challenges', Yen-Lin Agnes Chiu, Issue 6, pp. 791–814

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'Consulting the European Central Bank in the Regulatory Field of the National Central Bank of the Member State of the European Union', Gintautas Pošiūnas, Issue 6, pp. 815–846

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'Corporate Mobility under Article 49 TFEU: A Question of Means, not Ends', Aaron Khan, Issue 6, pp. 847–870

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'Index of Articles', Issue 6, pp. 871–874

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'Index of Authors', Issue 6, pp. 875–877

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