Opting out of shareholder governance rights: a new perspective on contractual freedom in Australian corporate law

One of the classic debates in corporate law relates to whether the rules of corporate law are ar should be 'mandatory', in that companies must comply, or 'enabling' - meaning a set of default rules which companies have the choice of adopting or 'opting out' of through alternative contractual arrangements. The so-called 'mandatory/enabling' debate has been especially prominent in the United States fro numerous reasons, yet has also received some attention in Australia. That said, the extent to which companies can 'opt out' of corporate law has rarely been considered as a practical issue in Australia - particularly whether Australian companies can 'opt out' of provisions under the Corporations Act ("the Act"). However, just recently, two high-profile events in Australia have made 'opting out' of corporate law a relevant issue, especially the question of whether companies are free to 'opt out' of provisions of the Corporations Act  which provide express governance rights to shareholders. These events were Boral's constitutional amendment in 2003 to restrict the ability of shreholders to propose amendments to the company's constitution, and the contemplation and introduction of so-called 'pre-nuptial' agreements- designed to by-pass the right of shreholders to vote on removing directors in public companies. In the light of these two recent events, in this article the authors revisit the mandatory/enabling debate. However, rather than going over old ground as to whether a mandatory or enabling approach to corporate regulation is desirable, the authors approach the issue from a fresh perspective: that Australian Securitiesand Investments Commission's ("ASIC") existing relief powers under the Act should be extended to provide a means for companies to opt out of provisions containing shareholder governance rights.

Identifying the barriers to implementing the Victorian Department of Education and Training guidelines regarding the provisions of nutrient dense food options in school canteens

Aims & rationale/Objectives : To identify barriers to the full implementation of new guidelines regarding school canteen menus launched by The Victorian Education Department in May 2004.
Methods : A self-administered questionnaire was sent to principals, business mangers and canteen managers of 13 secondary schools in South West Victoria covered by The Greater Green Triangle area (response rate 59%). The questions explored the canteen's role, operation, staffing and profits; existence and content of canteen policy; enablers and barriers to the sale of healthier foods; introduction and promotion of healthier foods; and perceived implications of banning less healthy foods.
Principal findings : The study identified several barriers to implementing healthy menus in school canteens, these being largely consistent with those found in other studies. The majority of schools reported they were making attempts to follow the guidelines for school food services, but were experiencing difficulty in proceeding to full implementation. The barriers identified through the study were student preference for less healthy options, concerns about profitability, lack of policy or its active communication and promotion at the school level and competition from other food outlets.
Discussion : There was evidence that healthy foods had not been actively promoted, suggesting that identification of student preferences as a barrier was based on perception rather than observation. The Victorian guidelines are effectively voluntary, with no accountability measures in place.
Implications : Research needs to be conducted to provide reliable and tested information about factors which impact on student choice. Schools would benefit from specialised assistance to formulate business plans for contemporary canteens selling healthy food and a clarification of government policy.
Presentation type : Poster

Not so welcoming? United States cross-border insolvency assistance

Examines the recognition of and assistance for foreign insolvency proceedings offered by the US courts under the US Code Title 11 Ch.15 (Bankruptcy Code), with particular reference to the approach to determining a centre of main interests, leading to refusal of recognition of Cayman Islands proceedings, in Re Basis Yield Alpha Fund (Master) and Re Bear Stearns High-Grade Structured Credit Strategies Master Fund Ltd (In Provisional Liquidation). Suggests that the approach under Ch.15 is more restrictive than the previous approach in the US, noting examples from case law under the previous provisions.

Does ownership affect a firm’s performance and default risk in Jordan?

This paper seeks to examine the impact of ownership structure on firm performance and the default risk of a sample of publicly listed firms.

Default probability for the Jordanian companies: A test of cash flow theory

Abstract
This paper aims to investigate the effect of cash flow and free cash flow on corporate failure in the emerging market in particular Jordan using two samples; matched sample and a cross sectional time-series (panel data) sample representative of 167 Jordanian companies in 1989-2003. LOGIT models are used to outline the relationship between firms’ financial health and the probability of default. Our results show that there is firm’s free cash flow increases corporate failure. The result also shows that the firm’s cash flow decreases corporate failure. Firms’ capital structures are fund a mental in predicting default. Capital structure is seen as the main factor affecting the probability of default as it affects a firm’s ability to access external sources of funds. Jordanian firms depend on short-term debt for both short and long term financing.

Opting only in: Contractarians, waiver of liability provisions, and the race to the bottom

This paper will test the core claim of scholars in the nexus of contracts tradition—that private ordering as a process of bargaining creates optimal rules. We do this by analyzing empirical evidence in the context of waiver of liability provisions. These provisions allow companies to eliminate monetary damages for breach of the duty of care through amendments to the articles of incorporation. With all states allowing some form of these provisions, they represent a good laboratory to examine the bargaining process between management and shareholders. The contractarian approach would suggest that shareholders negotiate with management to obtain agreements that are in their best interests. If a process of bargaining is at work as they claim, the opt-in process for waiver of liability provisions ought to generate a variety of approaches. Shareholders wanting a high degree of accountability would presumably not support a waiver of liability. In other instances, shareholders might favor them in order to attract or retain qualified managers. Still others would presumably want a mix, allowing waiver but only in specified circumstances.Our analysis reveals that the diversity predicted by a private ordering model is not borne out by the evidence with waiver of liability provisions for Fortune 100 companies. All states permit such provisions and in the Fortune 100, all but one company has them. Moreover, they are remarkably similar in effect, waiving liability to the fullest extent permitted by law. In other words, one categorical rule was merely replaced by another, dealing a significant blow to the contractarian thesis.

Costly monitoring, dynamic incentives, and default

We study dynamic contracts between a lender and a borrower in the presence of costly state verification and hidden effort. We prove three results. Costly monitoring is employed by the lender to optimally limit history dependence and prevent future inefficient termination of the relationship. Due to interaction between costly monitoring and dynamic incentives, the probability of monitoring may fail to be monotone in the borrower's reservation utility. Finally, following the interpretation of the costly state verification literature, we distinguish two levels of bankruptcy: one associated with restructuring and the other with liquidation.

Book-to-market ratio, default risk and return implications: from a negative perspective

A paradox is created by the common practice in stock evaluation models of excluding stocks with a negative book equity (BE). If we interpret the book-to-market ratio as a proxy for distress risk, it makes no sense to exclude these negative BE stocks since they are, prima facie, most prone to distress risk. This paper reassesses the relationship between default risk, return and the book-to-market ratio by incorporating negative BE stocks into the study. We find that negative BE stocks carry higher default risks than their positive BE counterparts and that these risks are not totally offset by higher returns. This suggests that a default risk filter can be used in the investment universe selection process through which the portfolio return can be enhanced.