The chapter evaluates the extent to which the Central Bank of Ireland (CBI) operates as an indepe... more The chapter evaluates the extent to which the Central Bank of Ireland (CBI) operates as an independent and accountable supervisor. The CBI was established pursuant to the Central Bank Reform Act 2010 as the body responsible for central banking and financial regulation in Ireland. The chapter explains the CBI’s functions and describes the national and EU regulatory landscape within which it operates. It compares the CBI to its predecessor, the Central Bank of Ireland and Financial Services Authority, which was criticized for perceived regulatory and supervisory failures in the lead up to the Irish Banking Crisis in 2008. In doing so, it identifies significant improvements in terms of the CBI’s independence, transparency, and accountability. The chapter also suggests further changes that might be considered in this context.
The chapter considers the duties of parent companies in respect of the actions or inactions of th... more The chapter considers the duties of parent companies in respect of the actions or inactions of their subsidiaries. The extent to which the corporate veil may be disregarded and/or liability imposed in such cases is discussed with particular reference to UK company law. Consideration is also given to the alternative approach involving respecting the separate legal personality of the subsidiary but imposing duties directly on the parent company arising from a separate and free-standing duty imposed on the parent company. Through its own actions or omissions, the parent company may have been directly or indirectly involved in the wrongdoing perpetrated by the subsidiary. These duties which may stem from statute, agency, tort or trust are examined. Finally, the chapter evaluates a number of proposals for statutory reform which have been made which involve the imposition of additional duties on parent companies and explores the underlying justification for such proposals.
ABSTRACT This article examines the role played by the ‘public interest directors' appointed t... more ABSTRACT This article examines the role played by the ‘public interest directors' appointed to the Irish credit institutions in the wake of the Irish Government's blanket deposit guarantee in 2008. Based on private interviews, it explores their experiences in interpreting the term ‘public interest’ and fulfilling their perceived responsibilities. Their experiences are also examined through the prism of the public interest scholarship in order to confirm or debunk existing hypotheses as to their likely reception and effectiveness. The article also analyses the nature of the duty imposed on all directors pursuant to section 48 of the Credit Institutions (Stabilisation) Act 2010 to have regard to a wide range of public interest factors in the performance of their functions. A unique feature of this duty and by contrast to section 172 of the UK Companies Act 2006, it is expressly stated to take priority over any other duty of the directors to the extent of any inconsistency. As the Irish experience demonstrates, even this rather extreme measure is not a guarantee of clarity of focus and easy decision-making.
The market for corporate control forms part of the basis of Directive 2004/25/EC on Takeover Bids... more The market for corporate control forms part of the basis of Directive 2004/25/EC on Takeover Bids. Article 20 of the Directive provides that the European Commission in 2011 must examine the Directive “in the light of the experience acquired in applying” it and, if necessary, propose its revision. The paper considers whether in revising the Directive, greater support should be given for the market for corporate control by counteracting the existing barriers to takeovers. In particular, the paper focuses on the barriers to takeovers which are introduced by target boards, by shareholders and by derivative holders.
This book analyses the complex relationship between corporate governance and economic development... more This book analyses the complex relationship between corporate governance and economic development by focusing on the reform of corporate governance, the role of the legal system, and the interconnections with the financial system.
ABSTRACT This Paper provides a general introduction to the climate change debate in Ireland throu... more ABSTRACT This Paper provides a general introduction to the climate change debate in Ireland through a company law lens. It examines the legal, regulatory and market environment for companies and considers the role the board of directors and other key stakeholders play in promoting a sustainable companies agenda. It identifies some of the challenges to embedding environmental objectives including a rather narrow interpretation of "the interests of the company" which favours shareholder primacy. This paper was produced as part of an international mapping exercise undertaken as part of the Sustainable Companies Project led by the Faculty of Law in Oslo.
This article examines the current EU company law policy promoting shareholder engagement in the c... more This article examines the current EU company law policy promoting shareholder engagement in the context of the Sustainable Companies Agenda. It suggests that affording greater power to shareholders and encouraging greater engagement may not advance the Agenda unless shareholders anticipate a direct personal financial benefit. The article also raises the possibility that such a policy could impede progress by the adoption by shareholders of a short-termist approach to the company's operations
ABSTRACT It is generally acknowledged that corporate governance failings played a contributory ro... more ABSTRACT It is generally acknowledged that corporate governance failings played a contributory role to the recent banking crisis. In particular, there has been widespread criticism of the chronic and reckless risk-taking by management which was fuelled by the banks’ remuneration policies. This would appear to run counter to the market for corporate control theory which suggests that takeovers should have a disciplinary effect on managers. The purpose of this paper is to consider why the market for corporate control did not lead to share price reductions and subsequent takeovers in firms where there was poor risk management and inadequate oversight by the board. Alternatively, it considers why the fear that this would happen did not constitute a sufficient deterrent to prevent poor risk management in the first place.
The chapter evaluates the extent to which the Central Bank of Ireland (CBI) operates as an indepe... more The chapter evaluates the extent to which the Central Bank of Ireland (CBI) operates as an independent and accountable supervisor. The CBI was established pursuant to the Central Bank Reform Act 2010 as the body responsible for central banking and financial regulation in Ireland. The chapter explains the CBI’s functions and describes the national and EU regulatory landscape within which it operates. It compares the CBI to its predecessor, the Central Bank of Ireland and Financial Services Authority, which was criticized for perceived regulatory and supervisory failures in the lead up to the Irish Banking Crisis in 2008. In doing so, it identifies significant improvements in terms of the CBI’s independence, transparency, and accountability. The chapter also suggests further changes that might be considered in this context.
The chapter considers the duties of parent companies in respect of the actions or inactions of th... more The chapter considers the duties of parent companies in respect of the actions or inactions of their subsidiaries. The extent to which the corporate veil may be disregarded and/or liability imposed in such cases is discussed with particular reference to UK company law. Consideration is also given to the alternative approach involving respecting the separate legal personality of the subsidiary but imposing duties directly on the parent company arising from a separate and free-standing duty imposed on the parent company. Through its own actions or omissions, the parent company may have been directly or indirectly involved in the wrongdoing perpetrated by the subsidiary. These duties which may stem from statute, agency, tort or trust are examined. Finally, the chapter evaluates a number of proposals for statutory reform which have been made which involve the imposition of additional duties on parent companies and explores the underlying justification for such proposals.
ABSTRACT This article examines the role played by the ‘public interest directors' appointed t... more ABSTRACT This article examines the role played by the ‘public interest directors' appointed to the Irish credit institutions in the wake of the Irish Government's blanket deposit guarantee in 2008. Based on private interviews, it explores their experiences in interpreting the term ‘public interest’ and fulfilling their perceived responsibilities. Their experiences are also examined through the prism of the public interest scholarship in order to confirm or debunk existing hypotheses as to their likely reception and effectiveness. The article also analyses the nature of the duty imposed on all directors pursuant to section 48 of the Credit Institutions (Stabilisation) Act 2010 to have regard to a wide range of public interest factors in the performance of their functions. A unique feature of this duty and by contrast to section 172 of the UK Companies Act 2006, it is expressly stated to take priority over any other duty of the directors to the extent of any inconsistency. As the Irish experience demonstrates, even this rather extreme measure is not a guarantee of clarity of focus and easy decision-making.
The market for corporate control forms part of the basis of Directive 2004/25/EC on Takeover Bids... more The market for corporate control forms part of the basis of Directive 2004/25/EC on Takeover Bids. Article 20 of the Directive provides that the European Commission in 2011 must examine the Directive “in the light of the experience acquired in applying” it and, if necessary, propose its revision. The paper considers whether in revising the Directive, greater support should be given for the market for corporate control by counteracting the existing barriers to takeovers. In particular, the paper focuses on the barriers to takeovers which are introduced by target boards, by shareholders and by derivative holders.
This book analyses the complex relationship between corporate governance and economic development... more This book analyses the complex relationship between corporate governance and economic development by focusing on the reform of corporate governance, the role of the legal system, and the interconnections with the financial system.
ABSTRACT This Paper provides a general introduction to the climate change debate in Ireland throu... more ABSTRACT This Paper provides a general introduction to the climate change debate in Ireland through a company law lens. It examines the legal, regulatory and market environment for companies and considers the role the board of directors and other key stakeholders play in promoting a sustainable companies agenda. It identifies some of the challenges to embedding environmental objectives including a rather narrow interpretation of "the interests of the company" which favours shareholder primacy. This paper was produced as part of an international mapping exercise undertaken as part of the Sustainable Companies Project led by the Faculty of Law in Oslo.
This article examines the current EU company law policy promoting shareholder engagement in the c... more This article examines the current EU company law policy promoting shareholder engagement in the context of the Sustainable Companies Agenda. It suggests that affording greater power to shareholders and encouraging greater engagement may not advance the Agenda unless shareholders anticipate a direct personal financial benefit. The article also raises the possibility that such a policy could impede progress by the adoption by shareholders of a short-termist approach to the company's operations
ABSTRACT It is generally acknowledged that corporate governance failings played a contributory ro... more ABSTRACT It is generally acknowledged that corporate governance failings played a contributory role to the recent banking crisis. In particular, there has been widespread criticism of the chronic and reckless risk-taking by management which was fuelled by the banks’ remuneration policies. This would appear to run counter to the market for corporate control theory which suggests that takeovers should have a disciplinary effect on managers. The purpose of this paper is to consider why the market for corporate control did not lead to share price reductions and subsequent takeovers in firms where there was poor risk management and inadequate oversight by the board. Alternatively, it considers why the fear that this would happen did not constitute a sufficient deterrent to prevent poor risk management in the first place.
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Papers by Blanaid Clarke