Government Companies as Regulators

In 2016 the government established a new sectoral regulator, with power to grant and withdraw licences, set performance standards, and impose sanctions, not as a statutory authority but in the form of a company wholly owned by the Secretary of State: the Oil and Gas Authority.  This article critically examines this and other uses in the UK of government‐owned or ‐ controlled companies to discharge public regulatory functions, against the background of current government practice regarding arm's length public bodies in general and government companies in particular. It assesses the acceptability of the company form by reference to criteria of democratic control, independence and accountability of regulatory institutions.     

Genetic Information and the Challenge to Privacy

Genetic screening and testing techniques provide a new and powerful diagnostic tool for the acquisition of predictive information. The potential value of such diagnostic techniques cannot be overstated. Genetic diagnostic tests pave the way for the development of gene therapy techniques which may provide remedies for diseases previously considered untreatable. There are clearly tremendous opportunities for improving the quality of life of those who suffer from genetic disorders as well as opportunities for biotechnology and pharmaceutical companies to swell their profits. A complex of pressures and tensions is currently developing around the use of genetic technology for therapeutic purposes in human beings. This paper considers only one element of this complex and dynamic situation, that of the regulatory climate surrounding the use of genetic screening in Europe. If, as many pharmaceutical companies concede, the key to the development of successful gene therapy products is the freedom to use genotyping and genetic screening without significant legal restriction, then the regulatory climate has a crucial significance for the future of this technology. It emerges, however, that there are other interests at stake apart from just those of the patients and the pharmaceutical companies. Insurance companies and employers are also highly interested in the acquisition and use of genetic information. There are arguments both for and against permitting such entities to use or request genetic testing and screening which shall be traversed in the body of the paper. However, the interest of insurance companies and employers in genetic information has stimulated a countercurrent of public pressure for restrictions on the use that can be made of genetic diagnostic information. In a number of countries, this pressure has generated enough concern to stimulate legislatures to seek to enact laws that curtail the use and acquisition of genetic information. This pattern has clearly emerged in the United States and there are strong indications that similar trends are developing in Europe. This article catalogues and critiques the laws and regulations currently affecting genetic screening and testing in Europe.     

Regulating behaviours on the European Union internet,the case of spam versus cookies

This article examines the soft-law politics of regulating behaviours on the internet in the European Union (EU) context. It shows the struggles behind internet standards, and delegation of power to commercial actors, while looking at spam and web-cookies as a case study. This article argues that by creating a false division between private and public spaces on the internet, it was possible to legitimize certain practices over others, despite being similar. In this way, spam was categorized as unsolicited communication associated with private space, whereas web-cookies were categorized as wanted communication in public space. By influencing and lobbying EU legislation and Internet Engineering Task Force (IETF) technical standards, the advertising industry and tech companies simultaneously authorize and institutionalize their own practices and illegalize people’s ‘problematic’ behaviour and other advertising companies. In this way, EU legislation and internet standards create a naturalized discourse that institutionalizes the roles of different actors in the online market, while emphasizing the central role of commercial actors in creating, defining, managing and enforcing the online market. Thus, spam operates as a regulatory tool applied to any type of behaviour that can interfere with the functioning of the EU e-commerce.     

论限售股司法拍卖的法律效果——以“公开承诺承继”为视角

资本市场不少股东在取得限售股份的同时作出公开承诺,如期限锁定承诺、业绩保障承诺、不占用资金承诺等。在限售股被质押融资的情况下,一旦债务逾期可能会被法院强制执行,强制执行后新取得股东是否需要承继这些公开承诺所附的权利负担,现行法律与监管规则不一致,各证券交易所的监管规则也有差异,导致实践中呈现"混乱"局面。从公开承诺的性质以及现行法律关于法院强制执行的权利负担承继原则来看,强制执行后公开承诺义务不应被新股东承继,但可能会造成法院强制执行成为原股东逃废债务的渠道,进而损害上市公司及其他投资者的合法权益,不利于建立健康的证券市场秩序环境。参考"买卖不破租赁"等案例,将公开承诺义务物权化,赋予其追溯效力,可能是解决这一问题的有效方案。     

Public (Interest) or Private (Gain)? The Curious Case of Network Rail's Status

This paper develops Whitehouse's 2003 examination of the creation of Network Rail, a case study of New Labour's attempt to operationalize the 'third way'. Significant changes have occurred since 2003 which make Network Rail's position as a private company with private sector debt appear increasingly anomalous. These changes include: the reclassification of the debt of another rail company from private to public, and the introduction of'imputed debt'into public sector debt measurement; new funding arrangements for Network Rail which make it heavily dependent on public support; and important rail regulatory policy changes. The paper analyses these changes, and revisits White-house's conclusions. In particular, this paper challenges Whitehouse's contention that Network Rail's creation led to the de facto renationalization of the railway infrastructure at a reduced public cost. The paper demonstrates that Network Rail is a very expensive mechanism for channelling public money to private companies, and argues that the Labour government's attempt to maintain the company's private sector status as part of its third way approach is ultimately untenable.     

CORPORATE SELF‐POLICING AND THE ENVIRONMENT*

The U.S. Environmental Protection Agency's Self‐Policing Policy (more commonly referred to as the Audit Policy) waives or reduces penalties when regulated entities voluntarily discover, disclose, and correct environmental violations. This study draws upon a rational choice model of corporate crime to determine if traditional regulatory efforts such as inspections and enforcement actions are associated with the odds of disclosing an environmental violation under the Audit Policy. A case control design is used to compare companies that self‐police to companies that do not self‐police. The event group consists of all 551 companies that disclosed at least one environmental violation under the Audit Policy between October 1, 1998 and September 30, 2000. The control group consists of a simple random sample of 551 companies that did not use the Audit Policy but were discovered to have violated at least one environmental law during the same time period as the event group. There is no evidence that inspections and enforcement increase Audit Policy use. However, the results do suggest, first, that the Audit Policy is more likely to be used by large companies than by small companies and, second, that it is likely to be used for reporting violations as opposed to more serious emissions or permit violations. In terms of public policy these findings suggest that regulatory agencies such as the EPA can do relatively little to increase the self‐policing of environmental violations.     

Regulatory competition in European company law

States have customarily tended to compete with one another. Not always, however, is this tendency, or the underlying methods put to use, obvious. That states (provincial divisions in the US) were competing to attract incorporations by relaxing their regulatory standards, couldn’t be seriously observed and highlighted until mid-1970s. Today, a few would doubt the existence of regulatory competition in corporate law in the US. In this paper, the author examines the issue whether the EU is (likely to be) engaged in regulatory competition in the area of company law. Answering the question in affirmative, the author proceeds to examine the strength of the race to the bottom and the race to the top theories, as developed and argued in the US, for the European setting. Since the legal systems of Member States of the EU have certain very disparate “core values” along which those systems have historically developed, relaxation of standards in the EU would take place against different variables. Because of the multitude of variables, comparable variables are unlikely to yield comparable results; either of the race theories is unlikely to satisfactorily predict the regulatory behaviour of EU Member States. Instead, since “laxation” in respect of one variable would be met by “optimisation” in respect of the other, there is likely to be simultaneous races to the top and to the bottom among the EU Member States.     

Academic spin-offs, corporate spin-outs and company internal start-ups as technology transfer approach

As a rule, a technology transfer gap exists between research and development and the commercialisation of the results. This article investigates the role of new ventures for technology transfer from universities and research institutions as well as between or within companies to close this gap. Based on case studies in Germany and Switzerland, different examples of this technology transfer approach have been analysed. Academic spin-offs can help to transfer technology from universities and research institutions to industry especially if there is the need for additional funding to further develop the technology. Corporate spin-outs can be used for technology transfer between companies as an alternative to closing operations should these no longer fit into the parent organisation. Internal start-ups were identified as a new approach for company internal technology transfer from research departments to business units focused on commercial operations to overcome innovation barriers within companies.     

论我国保险公司破产原因立法之妥适性——兼论我国《保险法》第90条、第149条之规定

保险公司破产具有特殊性,因此,从世界各国立法来看,保险公司的破产原因经历了从现金流标准和资产负债表标准向监管性标准的转变,是一个从“时间上的后置性”逐渐向“时间上的前置性”的演进过程。而目前我国保险公司的破产原因与一般企业相同,仍采用的是现金流标准和资产负债表标准,没有体现保险公司破产原因“时间上的前置性”。因此,有必要在参照国外监管性标准的基础上,重构我国保险公司的破产原因。而采用监管性标准为监管机构和法院提供了一个明确的、可以量化的标准,为未来我国保险公司破产原因之立法完善方向。     

公司组织形态与证券(融资)权利——摈弃有限公司“改制上市”的法律习规

在中国目前法律实践中,有限公司如欲成为上市公司或行使公开融资的权利,需先透过"公司改制"环节,成为股份公司,再以股份公司身份申请公开发行。显然,目前公开融资的权利是根据企业组织形态来进行配置的。可是,无论是理论界还是实务界,都很少仔细去思考——企业公开融资的权利到底应当如何配置?在中国,有限公司占据公司数量的绝对多数,目前盛行的"先改制,后发行上市"的法律安排,存在诸如"引发上市包装"、"导致纠纷隐藏"、"引发PE腐败"、"不当增加企业融资成本"等弊端。"改制上市"并未有效地改观公司治理,反而无谓地增加了企业融资困扰,影响了企业的公平发展权。无论是从资金融出方还是融入方观察,公司组织形态都不是配置融资权利的核心要素,融资权利的配置应当交给投资者,主要根据是否有"合适的项目"去判断。现行的企业改制发行方案,无疑在一定程度上隐藏了企业真实状况,极易推动形成"融资骗局"。因此,应当修改《公司法》、《证券法》相关规定,摒弃改制上市的习规,让有限公司乃至合伙企业等各种企业组织形式可以直接公开发行上市,在公开发行成功之后,直接变更/转换为股份公司。根据"好项目",而非"好的公司组织形态"配置融资权利,可以节省企业融资成本,加快融资过程,公平地实现"企业的发展权"。     

Flooding the Permafrost: The Role of Environmental Claims in the Effort to Regulate Global Warming Emissions

This article focuses on the role that public and private claims play in spurring, supporting, supplementing, and, at times, impeding, climate change initiatives. Sections 1 and 2 describe the essential features of greenhouse gases and briefly detail the history of federal initiatives and the collapse of will that precipitated many of the claims filed by states, municipalities, and environmental groups. Section 3 discusses plaintiffs' early challenges and efforts to compel regulatory action; nuisance actions that have been filed by states, public interest groups, and individuals; and the possible trajectory of future claims. Section 4 discusses the role of climate change claims in enforcing compliance, improving corporate responsibility, and promoting interorganizational benchmarking in governmental and market-based standards programs. Section 5 concludes with a discussion of the precautionary principle and ways in which companies can protect themselves against future climate change-related claims.     

Untangling the Web: A Review of Certain Secure e-Commerce Legal Issues

A number of critical legal aspects in the area of secure e-commerce and cybertrade are examined including doing business on the internet and web sites. Key issues including compliance with data protection laws, web site ownership and hypertext linking are raised.The use of the internet for communication on an intercompany basis provides concerns over security, confidentiality, defamation, harassment and infringement and companies must consider implementing ground rules for the use of e-mail and the internet in order to reduce or avoid corporate liability as well as directors and officers own personal liability.The growth of cybertrade raises issues relating to the underlying legal and regulatory global infrastructure and at present whilst the technology exists the other infrastructures do not and therefore there are urgent needs for co-ordination on an international basis in this area in relation to public key infrastructures, validity of digital signatures, the implementation of guidelines for trusted third parties, certification authorities and CyberNotaries.     

Food Fraud and the Partnership for a ‘Healthier’ America: A Case Study in State-Corporate Crime

At a moment of heightened public concern over food-related health issues, major corporations in the food industry have found their products and practices under scrutiny. Needing to be understood as socially responsible, these corporations have established partnerships with the state to construct a positive, proactive, and cooperative public image. One major public–private partnership that evolved from former First Lady Michelle Obama’s Let’s Move initiative—the Partnership for a Healthier America—serves as a case study in this paper, which analyzes the consequences and social harms perpetuated by a public health campaign bound by the imperative to maximize profit. By using trusted state actors to deliver accurate but deceptive claims about food companies’ commitment to public health, this public–private partnership actively misleads the public and potentially exacerbates public health challenges, warranting a skeptical revision of how we understand corporate social responsibility and neoliberal governance on issues of health and nutrition. As a form of fraud, these attempts to mislead the public go beyond the actions of public sector individuals or members of corporate boards, but are structurally incentivized by the legal rights, regulatory privileges, and profit-related incentives central to the modern corporate form. While conventional criminological research tends to underemphasize state and corporate harms, we make use of a critical criminological perspective to analyze state-corporate partnerships in the space between food industry practices and public health policy.     

Insurance Should Be a Company's First Line of Defense Against the Wave of Public Nuisance Claims

When plaintiff attorneys and State Attorneys General obtained nearly half a trillion dollars in settlement asserting that tobacco companies had created a public nuisance, public nuisance became a popular new litigation weapon. For example, public nuisance claims have been brought against companies for their alleged contribution to global warming. Whatever the merit of such claims—indeed many public nuisance claims have been defeated—defendant companies should consider what insurance assets they have to aid their defense against even groundless nuisance claims, and, if necessary, to indemnify them against any judgment or settlement. It is helpful that courts nationwide favor liberal insurance language interpretations to protect insureds against, among other things, changes in tort law enlarging potential liability exposure.     

数据安全认证:个人信息保护的第三方规制

契合"放管服"改革理念的数据安全认证,在数字时代整个规制法体系中必将占据日益重要的地位。数据安全认证通过声誉评价机制,可以引导、激励互联网企业守法合规经营,可以增强用户对中小微互联网企业和新兴数字产业的信任感,可以避免"一刀切"的政府规制,可以满足社会公众多元的数据安全需求。数据安全认证机构应具有高度的独立性与专业性,防止其被互联网企业"俘获"或成为政府的"附庸"。宜实行自愿为主、强制为辅的数据安全认证模式。认证程序应强调公正透明性,认证标准应注重评价企业数据合规的制度建设。根据过错责任原则,分别设置数据安全认证机构"相应的赔偿责任"或"连带责任",并加大对数据安全认证违法行为的公法责任追究。科学构建法治化的数据安全认证体制机制,不仅是保障数据安全的现实需要,而且是弥补数字时代政府规制缺陷的迫切需求。     

公司法律形态结构改革的走向

现行公司法上,公司法律形态存在着结构性问题。有限责任公司虽属封闭公司,但没有涵盖发起设立股份有限公司,而股份有限公司却容纳了公开公司和封闭性的发起设立股份有限公司。这种结构导致了封闭公司适用不同规则,公开性股份有限公司、封闭性股份有限公司适用同样的规则。公司法改革的取向是整合封闭公司资源,重塑有限责任公司形态,涵盖所有封闭公司,并使股份有限公司仅具有公开公司特点,不再涵盖发起设立的公司。在此基础上,同一法律形态的公司适用同样的规则,以利公司法现代化。同时,实现公司法体系一元化,外商投资有限责任公司与内资有限责任公司并轨,这是重塑有限责任公司形态的应有内涵。     

中国公司法之构造缺陷及克服

作者认为 ,中国公司法在实践中存在以下缺陷 :有限公司与股份公司的组织机构之间区别模糊、国有独资公司定位不当、股份公司之董事会缺少有效约束、监事会的监督职能虚拟化以及对关联公司以及公司集团的约束不力。为更好地发挥公司在市场经济中的作用 ,实有改革有限公司制度以及重新塑造股份公司之董事会与监事会关系的必要。此外 ,还应当增加对关联公司与公司集团的法律规定。     

Will Listing Rule Reform Deliver Strong Public Markets for the UK?

There is a general consensus that the UK needs strong public equity markets. To help to ensure Britain is well-positioned on this front, the Financial Conduct Authority reformed the London Stock Exchange's listing regime in 2021 to foster initial public offerings (IPOs). This article outlines and evaluates these IPO-related reforms, assessing their potential to resuscitate the UK's public equity markets. The article puts the IPO-related reforms into context by considering whether the fostering of strong equity markets is a sensible policy goal and by assessing what laws governing publicly traded companies can contribute to this endeavour. The article acknowledges that the specific IPO reforms may increase IPO activity but concludes that concerns about strong public markets will continue to exist. This is because the reforms do not address stock market exits or the ‘over’-regulation of public companies which discourages reliance on equity markets.