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- Preliminary Material
- Main Text
- 1 What This Book is About
- Introduction
- Families of Law
- Methodology and Scope
- Summary of Main Governing Law Risks
- Summary of Conclusions
- Conclusion
- 2 Role of Law
- Law as Ideology and Moral Code
- Economic Value of Law
- Governing Law as a Monopoly
- Dominant governing laws as conferring hard and soft power
- Fulfilment of vital need
- Advantages of dominant positions to users
- Multiplier effects
- Abuse of a dominant position?
- Competitor imitation
- Importance of protection of value
- Economic value of physical clustering
- Hard power—the US dollar
- Hard power—English law
- Soft power and hard economic value
- Impact of the Growth of Law
- Conclusion
- 3 Scope of Contracts
- Contracts Based on Assets
- Financial, Corporate, and Commercial Transactions
- Functional division of contracts into classes
- Financial transactions generally
- Loan transactions
- Guarantees
- Restructuring agreements
- Title finance
- Derivatives
- Securitisations and other receivables transfers
- Foreign exchange contracts
- Exchanges and central counterparties
- Funds
- Other financial contracts
- Significant corporate transactions generally
- Sale of corporate shares
- Raising of equity capital
- Sale or merger of a business
- Joint venture agreements
- Typical commercial agreements
- Real property agreements
- Comparison of General Risk Characteristics of Contracts
- Risk factors
- Banks and bondholders versus corporate management
- Interdependence of banks/bondholders and corporations
- Lenders versus shareholders
- Other financial contracts
- Commercial transactions
- Significance of chains of contracts for predictability
- Interdependence of contracts
- Multiple mutual contracts
- Standard forms
- Transfers of Property on Sale
- Digital Contracts; Green Transactions
- 4 Governing Law and Choice of Courts
- Introduction
- Governing Law of Contracts
- Matters Not Decided by the Governing Law
- Governing Law of Non-contractual Claims
- Choice of Courts
- 5 Predictability
- Purpose of Predictability and Summary
- Codification and Binding Judicial Precedent
- Doctrine of Good Faith in Contract
- Contract Terminations
- Mandates and Heads of Terms
- Pre-contract Disclosure
- Other Good Faith Situations
- 6 Insulation of Contract from Foreign Laws
- 7 Business Orientation
- 8 Freedom of Contract
- Freedom as a Value
- Free Choice of Governing Law and Courts
- Prohibitions on Clauses Restricting the Assignment of Receivables
- Restricting bans on assignments
- Historical background to the marketability of property
- Reasons for restricting the marketability of receivables
- Set-off and netting are prejudiced by assignments
- English law mainly allows restrictions on assignments
- Other jurisdictions allowing non-assignment clauses
- Jurisdictions prohibiting non-assignment clauses in financing transactions
- Other jurisdictions nullifying non-assignment clauses
- Conclusion on bans on non-assignment clauses
- Bondholder Democracies
- 9 Exclusion Clauses
- Background to Exclusion Clauses
- General Review of Exclusion Clauses Internationally
- Exclusion Clauses in Unregulated Offering Documents
- Syndicated bank credits
- International bond issues
- Unregulated disclosure documents
- Issuer liability
- No exclusion for fraud
- Sources of law
- Big pocket liability of arrangers and underwriters
- Corporations as black bags
- Liability of an arranging bank for a syndication offering memorandum
- Liabilities of arranging banks in England
- Liability of arranging banks in the US
- Underwriter liability for unregulated bond prospectuses generally
- Underwriter liability in England for an unregulated prospectus
- US underwriter liability for an unregulated prospectus
- Universal liability for fraud
- Liability of underwriters on an unregulated prospectus elsewhere
- Underwriter Liability on Regulated Prospectuses Generally
- Derivatives Liability
- Conclusion
- 10 Insolvency Law Indicators and Risks
- Why Insolvency Law is Relevant
- Understanding Insolvency Law
- Essential elements of bankruptcy
- Impact of the bankruptcy of corporations on legal systems
- Summary of methods of insolvency risk mitigation
- Three methods of handling insolvencies
- Work-outs and judicial rescue plans
- Creditors involved in work-out and judicial rescue plans
- International diversity of insolvency approaches
- Harmonised International Insolvency Laws
- EU Insolvency Regulation and UNCITRAL Model Law
- Summary of the EU Insolvency Regulation 2015
- Exceptions to opening state applicable law
- Summary of the UNCITRAL Model Law on Cross-border Insolvency
- Insolvency jurisdiction and applicable law outside the treaties
- Insolvency of corporations, banks, and sovereign states compared
- Key Indicators of Insolvency Law
- Triple super-priority insolvency claims
- General attitude of the legal families to the three super-priority claimants
- The triple super-priorities satisfy the eligibility tests for key indicators
- Role of the contract governing law in achieving super-priority
- Central counterparties and the triple super-priority claimants
- Bankruptcy ladder of priorities
- Contract and lease terminations on insolvency
- Other insolvency key indicators
- Conclusion
- 11 Insolvency Set-Off
- Essentials of Insolvency Set-off and Netting
- Protection of Insolvency Set-off by Governing Law
- Comparative Survey
- Armour-plated protections in English set-off
- EU Restructuring Directive 2019
- Insolvency set-off in the US
- Set-off in the English common law jurisdictions
- Insolvency set-off in the Napoleonic jurisdictions
- Insolvency set-off in the Roman-Germanic jurisdictions
- Insolvency set-off in the Mixed civil/common law jurisdictions
- Set-off mutuality
- Avoidance of build-ups of set-offs
- Set-off against assignees and other intervenors
- Conclusion
- 12 Security Interests
- What are Security Interests and their Key Indicators?
- Use and Importance of Security Interests
- Conclusion
- Comparative Law of Security Interests
- Governing Law and Security Interests
- Role of the governing law of security interests generally
- Governing law of contract for security agreement
- Scope of security interests
- Scope of collateral and publicity
- Recharacterisation of title finance as a security interest
- Trustees of security
- Permissible secured debt
- Transfers of secured debt
- Enforcement remedies
- Bankruptcy
- Corporate structures to minimise risks
- Conclusion
- 13 Commercial Trusts
- Background to Commercial Trusts
- International Survey of Trust Recognition
- Objections to the Trust
- Maximisation of Trust Recognition and Risk Mitigation
- Conclusion
- 14 Corporate Law Indicators and Risks
- Governing Law and Corporate Transactions
- Key Indicators of Corporate Law
- Main and ancillary indicators
- Role of companies in modern societies
- Families of law and corporate law
- Why corporate law differs from financial law: the straight line and the triangle
- Objectives of corporate creditors, shareholders, and management generally
- Objectives of creditors
- Objectives of shareholders
- Objectives of management
- Other constituencies
- Financial Assistance to Buy Own Shares
- Director Personal Liability
- Other Key Indicators of Corporate Law
- Introduction
- Availability of the corporate form
- Limited liability and the veil of incorporation generally
- Single purpose companies
- Central banks
- Shareholders as de facto directors
- Bankruptcy consolidation
- Subordination of shareholder loans
- Maintenance of capital
- Shareholder equality and minority protections
- Corporate governance
- Enforcement penalties
- Takeovers
- Corporate guarantees
- Conclusion
- 15 Regulatory Law Indicators and Risks
- 16 Courts, Litigation, and Arbitration
- 17 Non-Legal Indicators and Risks
- 18 Comparison of Jurisdictions of the World
- Identifying the Families of Jurisdictions
- Development of Legal Indicators for Comparative Law
- General Features of the Families of Law
- American Common Law Jurisdictions
- Conclusion
- English Common Law Jurisdictions
- Conclusion
- Napoleonic Jurisdictions
- Conclusion
- Roman-Germanic Jurisdictions
- Conclusion
- Mixed Civil/Common Law Jurisdictions
- Conclusion
- Islamic Jurisdictions
- Conclusion
- New or Transition Jurisdictions
- Conclusion
- Unallocated Jurisdictions
- Statistics on the Families of Law
- Conclusion on the Families of Law
- 19 Protecting a Governing Law
- 20 History and the Future
- 21 Conclusion
- 1 What This Book is About
- Further Material
- [44.192.79.149]
- 44.192.79.149
