Legal Studies Research Paper Series Vol. 9, No. 11

The Faculty has published Volume 9 Number 11 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Valia Babis: The Single Rulebook and the European Banking Authority (45/2018)

This chapter examines the EU Single Rulebook and the the European Banking Authority. The chapter attempts to identify potential weaknesses and to assess the Rulebook and the EBA against the key objective of harmonised regulation and supervision for banks across the EU.

Michael Waibel: To Formalize or Not to Formalize: Creditor-Debtor Engagement in Sovereign Debt Restructurings (46/2018)

Creditor-debtor engagement in one form or another has been a feature of many sovereign debt restructurings. In some cases, debtor-creditor engagement has been formalized and took the specific form of creditor committees. Views differ considerably on the merits and demerits of CCs, and on the level of prescription and detail that is desirable from a policy perspective. The incentives of the main actors in sovereign debt also differ with respect to creditor engagement, particularly as regards ex ante contractual clauses. The article focuses on the possible content of creditor-debtor engagement. Creditor-debtor engagement can take four main forms: (i) the insertion ex ante of contractual clauses in bond documentation for creditor committees (CCs); (ii) ex ante best practices for formal creditor committees; (iii) ex ante best practices for engagement between creditors and debtors or (iv) ex post agreement between the debtor and creditor on creditor engagement or CCs.

John W.F. Allison: The Westminster Parliament's Formal Sovereignty in Britain and Europe from a Historical Perspective (47/2018)

In the historical backdrop to domestic British debates about Brexit has been tension between two contrasting and competing conceptions of the Westminster Parliament’s sovereignty. In issue has been whether or how parliamentary sovereignty has been subject to constraint, to limitations of form or substance, in strict legal theory or in practical politics. The tension was the product of a doctrinal dichotomy that Albert Venn Dicey introduced in the late-nineteenth century. He introduced it in attempting to juridicalise or juridify the constitution in his foundational and multi-edition textbook ‘The Law of the Constitution’. The dichotomy was, on the one hand, of a formal legal conception of Parliament’s sovereignty as limitless in theory and, on the other hand, of a substantive political conception of its sovereignty as limited in actuality. The tension between these legal and political conceptions has been manifest since then in various formal exercises of Parliament’s sovereignty that have impaired its substance. They include parliamentary enactments that conferred self-government in the process of decolonisation, that granted the executive powers to amend parliamentary legislation through "Henry VIII clauses", and that delegated various governing powers in devolution. The tension has also been manifest in the enactment of the European Communities Act 1972, by which the Westminster Parliament made domestic legal provision for the UK’s original inclusion in the European Communities. The tension was exacerbated by the unqualified assertion of the unconditional supremacy of Community law by the ECJ, both before and after the 1972 enactment. Through judicial minimalism or false economy - failure to acknowledge, explain and address pressing issues at stake - in the response of the highest British court to the ECJ’s assertion of supremacy, problems in the Westminster Parliament’s legal and political sovereignty were left unresolved and vulnerable to serious objection. They contributed to making the UK’s continued membership of the EU precarious and unstable. The doctrinal and constitutional options and implications for the UK are challenging, as are various searching questions for the EU.

Brian R. Cheffins: The Rise and Fall (?) of the Berle-Means Corporation (50/2018)

This paper forms part of the proceedings of the 10th Annual Berle Symposium (2018), which focused on Adolf Berle and the world he influenced. He and Gardiner Means documented in The Modern Corporation and Private Property (1932) what they said was a separation of ownership and control in major American business enterprises. Berle and Means became sufficiently closely associated with the separation of ownership and control pattern for the large American public firm to be christened subsequently "the Berle-Means corporation". This paper focuses on the "rise" of the Berle-Means corporation, considering in so doing why ownership became divorced from control in most of America’s biggest companies. It also assesses whether developments concerning institutional investors and shareholder activism have precipitated the "fall" of the Berle-Means corporation, meaning U.S. corporate governance is no longer characterized by a separation of ownership and control.

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