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Working papers: 2006

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WP338: Regulating Organizations through Codes of Corporate Governance

David Seidl

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Although codes of corporate governance have come to be widely used as a mode of regulating corporations, our understanding of how they function is still rather limited. In this paper we describe the design of such code regimes and propose a theoretical framework for studying their effects. On the basis of an observation-theoretical approach, codes are conceptualised as schemas of observation that determine the way we evaluate corporations. On the one hand, the effect of a code depends on the extent to which it becomes integrated into recursive cycles of mutual observation between the corporation and the various actors in the field. On the other hand, it also depends on how the code relates to other observational schemas in the field. The paper concludes with some guidelines for empirical research on code regimes.

WP337: Multinationals in Their Communities: A Social Capital Approach to Corporate Citizenship Projects

Michael Pollitt, Ian Jones and David Bek

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The objectives of this research is to provide new ways of thinking about and measuring the extent and effectiveness of multinational efforts to contribute to society via their corporate citizenship (CC) (or corporate social responsibility – CSR) programmes. It uses as its method of analysis the emerging literature relating to the theory and measurement of social capital. The paper summarises the findings of a forthcoming book (from Palgrave, 2007). We begin by discussing the concept of corporate citizenship in the context of the multinational. We go on to introduce the concept of social capital employed in the study. Next we summarise our case study evidence with cases from Anglo-American and Diageo. Following this, we review our statistical and econometric analysis which maps the community engagements of UK multinationals in South Africa, US multinationals in Mexico and EU multinationals in Poland. We demonstrate the usefulness for analysis of social capital thinking in this context and make suggestions for future work

WP336: What’s in a Name & When Does It Matter? The Hot & Cold Market Impacts on Underpricing of Certification, Reputation & Conflicts of Interest in Venture Capital Backed Korean IPOs

Alan Hughes and Jaeho Lee

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This article analyses the impact of the participation of venture capital (VC) firms on underpricing in 372 businesses brought to IPO during the period 1999-2001 in KOSDAQ. Korea’s second-tier stock market, KOSDAQ, has grown dramatically since 1999 and about half of the firms listed in KOSDAQ during this period were VC-backed, thus providing a good testing ground for empirical analysis. We measure VC participation in terms of pre IPO share-ownership by VC firms and attempt to differentiate IPO impacts between VCs grouped in terms of their reputation (measured by their dominance of the VC market, and by their affiliation in terms of ownership by banks and security companies). In estimating impacts we control for a wide range of variables which may affect the extent of underpricing. These include uncertainty inducing factors such as the age, size, profitability, leverage, and technical riskiness (measured by sector and R&D intensity) of the firm brought to IPO. We also control for market conditions using proxies for hot and cold market effects based on the numbers of contemporaneous IPOs, underpricing trends and market price movements. Finally in addition to allowing for the impact of underwriting quality we control for share overhang and price revision effects. We find that, controlling for other relevant factors, pre-IPO ownership by VCs has an insignificantly negative impact on underpricing in both hot and cold markets. However in cold markets reputational effects within the VC group do matter. In those conditions the top 3 VCs and those owned by or affiliated with banks are significantly associated with lower underpricing. The same is true for the quality of underwriting. However in hot market conditions none of these effects are present.

WP335: How Do Family Ties, Boards & Regulation Affect Pay at the Top? Evidence for Indian CEOs

Sonja Fagernäs

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This paper investigates the effects of corporate governance factors and family ties on the pay of managing directors in a sample of Indian stock listed companies. It uses a unique seven-year firm level panel dataset and controls for firm performance and both CEO and firm specific fixed effects. The hypothesis is that corporate governance, ownership structures and market pressure shape the power relations between the board and managers, and affect the level and structure of CEO pay. The evidence for India supports these hypotheses. Managing directors, who are related to the founding family, or controlling group, or any of the members on the board of directors, are paid more. This holds for total pay and both for the less variable component and the performance-related component of pay. In contrast, the presence of outside representatives on the board – non-executive directors or nominees of creditors or institutional investors – is found to have a disciplinary effect. The presence of nominees lowers the level of pay and that of non-executives ties pay more to firm performance. A further timely finding is that the staged introduction of a recent mandatory corporate governance code, aiming to improve governance and pay disclosure in listed companies, has raised the tendency of firms to tie pay explicitly to firm performance. Overall, the practice of tying pay explicitly to performance has become more common over time.

WP334: The Stigma of Failure: An International Comparison of Failure Tolerance & Second Chancing

Alan Hughes and Brendan Burchell

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It is commonly asserted that high rates of entrepreneurship and superior economic performance in the United States is linked to a higher cultural tolerance of business failure. After reviewing cross country patterns of entrepreneurship we develop in this paper a measure of cultural attitudes towards failure which has two components. We term these failure tolerance which captures attitudes towards the risk of a business failing and second chancing which measures the degree of agreement with the proposition that those who have failed should be given a second chance. Using a unique dataset on attitudes to failure for a sample of 9,500 individuals drawn from 19 economies for the year 2002 we show that respondents in the USA appear to have relatively high levels of failure tolerance. However, they are less willing to grant a second chance to those who have tried and failed. We find that having relatively high levels of failure tolerance is not positively correlated with GDP growth. Having a relatively positive attitude towards second chancing across countries is positively related to GDP growth. Taken together these results suggest there is a link between attitudes to failure and economic growth, but it is not the one conventionally assumed in current policy rhetoric which argues that relatively favourable attitudes towards second chancing in the USA explains its more entrepreneurial activity.

WP333: False Dawn for CSR? Shifts in Regulatory Policy & the Response of the Corporate & Financial Sectors in Britain

Simon Deakin and Richard Hobbs

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We present a model of CSR as a set of mechanisms for aligning corporate behaviour with the interests of society in reducing externalities and promoting a sustainable corporate sector. These mechanisms include voluntary action by companies to go above minimum legal standards, with the aim of enhancing competitiveness (‘action beyond compliance’); interventions by regulators designed to promote self-regulation by industry (‘reflexive law’); and steps taken by shareholders to put pressure on companies to make effective use of corporate assets (shareholder engagement). We then assess the degree to which the model is realised in current British practice. Focusing on the issue of working conditions, we find managerial resistance to the linking of CSR with internal employee relations, and obstacles to shareholder engagement on this issue.

WP332: The Costs & Benefits of Secured Creditor Control in Bankruptcy: Evidence from the UK

John Armour, Audrey Hsu and Adrian Walters

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Recent theoretical literature has debated the desirability of permitting debtors to contract with lenders over control rights in bankruptcy. Proponents point to the monitoring benefits brought from concentrating control rights in the hands of a single lender. Detractors point to the costs imposed on other creditors by a senior claimant’s inadequate incentives to maximise net recoveries. The UK provides the setting for a natural experiment regarding these theories. Until recently, UK bankruptcy law permitted firms to give complete ex post control to secured creditors, through a procedure known as Receivership. Receivership was replaced in 2003 by a new procedure, Administration, which was intended to introduce greater accountability to unsecured creditors to the governance of bankrupt firms, through a combination of voting rights and fiduciary duties. We present empirical findings from a hand-coded sample of 348 bankruptcies from both before and after the change in the law, supplemented with qualitative interview data. We find robust evidence that whilst gross realisations have increased following the change in the law, these have tended to be eaten up by concomitantly increased bankruptcy costs. The net result has been that creditor recoveries have remained unchanged. This implies that dispersed and concentrated creditor governance in bankruptcy may be functionally equivalent.

WP331: Who Writes the Rules for Hostile Takeovers, & Why? The Peculiar Divergence of US & UK Takeover Regulation

John Armour and David A Skeel Jr

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Hostile takeovers are commonly thought to play a key role in rendering managers accountable to dispersed shareholders in the “Anglo-American” system of corporate governance. Yet surprisingly little attention has been paid to the very significant differences in takeover regulation between the two most prominent jurisdictions. In the UK, defensive tactics by target managers are prohibited, whereas Delaware law gives US managers a good deal of room to maneuver. Existing accounts of this difference focus on alleged pathologies in competitive federalism in the US. In contrast, we focus on the “supply-side” of rule production, by examining the evolution of the two regimes from a public choice perspective. We suggest that the content of the rules has been crucially influenced by differences in the mode of regulation. In the UK, self-regulation of takeovers has led to a regime largely driven by the interests of institutional investors, whereas the dynamics of judicial law-making in the US have benefited managers by making it relatively difficult for shareholders to influence the rules. Moreover, it was never possible for Wall Street to “privatise” takeovers in the same way as the City of London, because US federal regulation in the 1930s both pre-empted self-regulation and restricted the ability of institutional investors to coordinate.

WP330: Entrepreneurs, HRM Orientations & Environmental Fit: A UK-Japan Comparison in High Tech Manufacturing

Hugh Whittaker, Philippe Byosiere, Thelma Quince and Junpe Higuchi

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Entrepreneurs cannot develop a business single handedly. One of the most important tasks the entrepreneur faces is to recruit, allocate work to, motivate and retain employees who will help the business to grow. Based on survey data, this paper examines the HRM orientations of UK and Japanese high tech manufacturing entrepreneurs, and identifies fundamentally different approaches to these tasks, at least as expressed by the entrepreneurs. The UK entrepreneurs espouse an employment relationship based on ‘give and take’ flexibility, while the Japanese entrepreneurs are more focused on raising or nurturing their employees. Reasons for the differences are explored, and relate to the entrepreneurs’ backgrounds, as well as the business and social environment. Implications for the ‘new employment relationship’ are explored.

WP329: Corporate Governance, Crony Capitalism & Economic Crises: Should the US Business Model Replace the Asian Way of ‘Doing Business’?

Ajit Singh and Ann Zammitt

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This paper considers the Greenspan/Summers/IMF (GSI) argument that the Asian way of doing business was the deep cause of the Asian crisis. The IMF reform programme for the crisis-affected Asian countries suggested they should abandon the Asian business model and adopt the US corporate model. The main findings are: a) contrary to GSI doctrine, poor corporate governance and lack of competition are not common characteristics of the Asian business model; b) that the stock-market based US business model has severe limitations for developing country corporations, not least because of imperfect share prices and the imperfect market for corporate control.

WP328: Globalisation, Instability & Global Insecurity

Ajit Singh and Sonja Fagernäs

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This paper documents and analyses the volatility of economic growth in rich and poor countries. It concludes that whereas volatility has declined almost universally in advanced countries, the picture is more mixed for developing countries. The paper then concentrates on the case of India, where GDP volatility has declined over the past two decades. The evidence shows that the move away from agriculture has stabilised the economy. Increased financial depth and more favourable developments in terms of trade have had a similar effect. Finally, the paper discusses the relationship between economic instability and insecurity at a general level.

WP327: Manufacturing, Services & Premature De-industrialisation in Developing Countries: a Kaldorian Empirical Analysis

Sukti Dasgupta and Ajit Singh

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This paper uses a Kaldorian framework to examine the evidence of deindustrialisation in developing countries at low levels of income, the jobless growth in these economies and the fast expansion of the informal sector. The questions are specifically examined for the Indian economy using state level data, but the analysis has a wider application for economic policy in developing countries.

WP326: University-Industry Linkages & UK Science & Innovation Policy

Alan Hughes

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This paper assesses the current nature of university-industry links in the UK and US using the recent unique IPC-CBR innovation benchmarking survey of the UK and the US. It argues for a more diverse approach to the complex nature of university-industry links than is currently the case. The paper in addition provides a brief overview of SET policy in the UK locating university-industry links within the overall UK policy framework. It argues for a greater degree of coordination of existing policy levers rather than new initiatives and for an effective use of public procurement in relation to SET policy.

WP325: ‘Capacitas’: Contract Law & the Institutional Preconditions of a Market Economy

Simon Deakin

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Capacity may be defined as a status conferred by law for the purpose of empowering persons to participate in the operations of a market economy. This paper argues that because of the confining influence of the classical private law of the nineteenth century, we currently lack a convincing theory of the role of law in enhancing and protecting the substantive contractual capacity of market agents, a notion which resembles the economic concept of ‘capability’ as developed by Amartya Sen. Re-examining the legal notion of capacity from the perspective of Sen’s ‘capability approach’ is part of a process of understanding the preconditions for a sustainable market order under modern conditions.

WP324: Shareholder Protection: A Leximetric Approach

Priya P Lele and Mathias M Siems

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In this paper we build a new and meaningful shareholder protection index for five countries and code the development of the law for over three decades. Attributing and comparing legal differences by numbers is contrary to the traditional way of doing comparative law and the use of a quantitative methodology to account for variations across legal systems has been subjected to some searching criticisms. However, we believe that with a cautious approach, it has the potential to open new vistas of research in the area of comparative law and as such should not be shunned. This paper provides an illustration of the interesting possibilities that diligent quantification of legal rules (‘leximetrics’) provides for comparing variations across time series and across legal systems. For instance, our study finds, that in all of our panel countries shareholder protection has been improving in the last three decades; that the protection of minority against majority shareholders is considerably stronger in ‘blockholder countries’ as compared to the non-blockholder countries and that convergence in shareholder protection is taking place since 1993 and is increasing since 2001. Finally, our examination of the legal differences between the five countries does not confirm the distinction between common law and civil law countries.

WP323: Legal Diversity & Regulatory Competition: Which Model for Europe?

Simon Deakin

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Two models of regulatory competition are contrasted, one based on a US pattern of ‘competitive federalism’, the other a European conception of ‘reflexive harmonisation’. In the European context, harmonisation of corporate and labour law, contrary to its critics, has been a force for the preservation of diversity, and of an approach to regulatory interaction based on mutual learning between nation states. It is thus paradoxical, and arguably antithetical to the goal of European integration, that this approach is in danger of being undermined by attempts, following the Centros case, to introduce a Delaware-type form of inter-jurisdictional competition into European company law.

WP322: The Return Of The Guild? Network Relations in Historical Perspective

Simon Deakin

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Prior to the industrial revolution, the predominant form of economic organisation in western Europe and north America was the guild. Guilds were network forms, loose associations of independent producers, with strong local and regional identities, in which cooperation and competition were combined. The decline of the guild was brought about in large part by legal changes which privileged the emerging conjunction of the vertically integrated enterprise and mass consumer market. If present-day network forms are not be consigned to the margins of capitalism as their predecessors were, we need a set of legal concepts and techniques which can underpin and protect network relations, most importantly in the context of competition law.

WP321: Legal Origins: Reconciling Law & Finance & Comparative Law

Matthias M Siems

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In the last years law and finance scholars have “discovered” the usefulness of comparative law. Their studies look at the quantifiable effect that legal rules and their enforcement have on financial development in different countries. Moreover, they link their results with the old distinction between Civil Law and Common Law countries. Whether this revival of “legal families” (or “legal origins”) is a useful way forward is, however, a matter of debate. The following article challenges these studies, and looks for characteristic features which are more precise and meaningful than the use of legal families as such.

WP320: Legal Capital: An Outdated Concept?

John Armour

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This paper reviews the case for and against mandatory legal capital rules. It is argued that legal capital is no longer an appropriate means of safeguarding creditors’ interests. This is most clearly the case as regards mandatory rules. Moreover, it is suggested that even an ‘opt in’ (or default) legal capital regime is unlikely to be a useful mechanism. However, the advent of regulatory arbitrage in European corporate law will provide a way of gathering information regarding investors’ preferences in relation to such rules. Those creditor protection rules that do not further the interests of adjusting creditors will become subject to competitive pressures. Legislatures will be faced with the task of designing mandatory rules to deal with the issues raised by ‘non-adjusting’ creditors in a proportionate and effective manner, consistent with the Gebhard formula.

WP319: Should We Redistribute in Insolvency?

John Armour

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The characterisation of a security interest as ‘fixed’ or ‘floating’ has generated much litigation in English courts. This is because a floating charge is subordinated by statute to other claims in the debtor’s insolvency, whereas a fixed charge is not. This paper uses the example of the floating charge to argue that such statutory redistribution between claimants in corporate insolvency is generally undesirable. If particular types of voluntary transaction are subjected to statutory ‘taxation’, then parties may be expected to structure their affairs so as to avoid the ambit of the legislation. The paper traces the history of the floating charge, showing how both its use by business, and the litigation that has shaped its juridical ‘nature’, have been driven by the desire to avoid redistribution in insolvency. This has resulted in relatively little money reaching the intended beneficiaries of the statutory redistribution. It has also engendered significant costs: the direct costs of litigation and the opportunity costs of a constrained choice of financial structures.