Mathias M. Siems

The Evolution of Labour Law: Calibrating and Comparing Regulatory Regimes

We present evidence on the evolution of labour law in five countries (the UK, USA, Germany, France and India) using a newly-created dataset which measures legal change over time. The results cast light on the claim that legal origin, or the influence of common law and civil law regulatory styles, affects the content of labour law regimes. We find some divergence between common law and civil law countries at the aggregate level but a more complex picture when the index is decomposed so as to identify changes in specific areas of labour law. We discuss the potential significance of this relatively new approach to the measurement of law for understanding the forces at work in the evolution of labour law.

How Do Legal Rules Evolve? Evidence from a Cross-Country Comparison of Shareholder, Creditor and Worker Protection

Much attention has been devoted in recent literature to the claim that a country’s ‘legal origin’ may make a difference to its pattern of fi nancial development and more generally to its economic growth path. Proponents of this view assert that the ‘family’ within which a country’s legal system originated—be it common law, or one of the varieties of civil law—has a signifi cant impact upon the quality of its legal protection of shareholders, which in turn impacts upon economic growth, through the channel of fi rms’ access to external fi nance. Complementary studies of creditors’ rights and labour regulation have buttressed the core claim that different legal families have different dynamic properties. Specifi cally, common law systems are thought to be better able to respond to the changing needs of a market economy than are civilian systems. This literature has, however, largely been based upon cross-sectional studies of the quality of corporate, insolvency and labour law at particular points in the late 1990s. In this paper, we report fi ndings based on newly constructed indices which track legal change over time in the areas of shareholder, creditor and worker protection. The indices cover fi ve systems for the period 1970-2005: three ‘parent’ systems, the UK, France and Germany; the world’s most developed economy, the US; and its largest democracy, India. The results cast doubt on the legal origin hypothesis in so far as they show that civil law systems have seen substantial increases in shareholder protection over the period in question. The pattern of change differs depending on the area which is being examined, with the law on creditor and worker protection demonstrating more divergence and heterogeneity than that relationg to shareholders. The results for worker protection are more consistent with the legal origin claim than in the other two cases, but this overall result conceals signifi cant diversity within the two ‘legal families’, with different countries relying on different institutional mechanisms to regulate labour. Until the late 1980s the law of the fi ve countries was diverging, but in the last 10-15 years there has been some convergence, particularly in relation to shareholder protection.

Comparative Law and Finance: Past, Present and Future Research

Comparative law and finance quantifies differences in the laws governing the business enterprise in various countries. The resulting data can be used to test which legal institutions (if any) matter for financial development. Until recently only cross-sectional data were available. We report the results of a new approach to coding which has produced longitudinal data sets on shareholder, creditor, and worker protection.

Legal Adaptability in Elbonia

Law has to be able to respond to new or changing circumstances. This adaptability of the law may be more important than details in the law as such. However, its meaning and its significance have not yet been analysed in detail. Thus, legal adaptability will be examined in this article. It looks at the worst case scenario by discussing a fictional country (Elbonia) where legal adaptability is poor, and identifies the main adaptability criteria. By using empirical data from the three Baltic States (Lithuania, Latvia, Estonia), it also provides an example of how to ascertain the degree of legal adaptability of particular countries.

Ordoliberal Lessons for Economic Stability: Different Kinds of Regulation, Not More Regulation

Since the Global Financial Crisis of 2008 the term “ordoliberalism” has experienced a marked revival. This discussion tends to focus on the need for more state intervention. Yet this misrepresents the core ideas of ordoliberalism because its main concern is not with “how much” but with “what kind of” intervention is needed. Thus, this article seeks to clarify the ordoliberal position, in particular its key distinction between market conforming and nonconforming state intervention. Discussing the current financial crisis, it also evaluates the potential benefits and drawbacks of ordoliberalism. The article rebukes rhetorical shortcuts that equate every economic policy coming out of Germany with ordoliberalism. It also suggests that while the ordoliberal conception does not necessarily provide a solution to the current problems in the short run, in the long run it may form the basis for a sounder conception of economic regulation than more libertarian views can offer.

Language, Legal Origins, and Culture Before the Courts: Cross-Citations Between Supreme Courts in Europe

“Legal communication has two principal components: words and citations”1 Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this article and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries for the time between 2000 and 2007. In the present article we show that citation of foreign law by supreme courts is not an isolated phenomenon in Europe, but happens on a regular basis. We found 1,430 instances in which these courts have cited the supreme courts of the other nine countries. The majority of these citations have been made for purely comparative reasons. We also undertook regression analysis in order to understand the differences between the cross-citations. Whether such citations take place and in what quantity depends on the particular legal culture and its relationship to others. Austria and Ireland, which stand in an asymmetric relationship with Germany and England respectively, seem to be particularly receptive to foreign influence on their legal systems. But even controlling for these outliers, we have been able to identify that the population of the cited country and a low level of corruption, native languages and language skills, legal origins and families, and cultural and political factors all matter for which courts are likely to be cited. More specifically, knowledge of the language of the cited court appears to be a more important factor driving cross-citations than legal traditions, culture or politics. Thus, to facilitate a transnational market of legal ideas, it can be suggested that courts should strive to make their decisions available in languages that possible readers understand.

Mapping Legal Research

This article aims to map the position of academic legal research, using a distinction between “law as a practical discipline”, “law as humanities” and “law as social sciences” as a conceptual framework. Having explained this framework, we address both the “macro” and “micro” level of legal research in the UK. For this purpose, we have collected information on the position of all law schools within the structure of their respective universities. We also introduce “ternary plots” as a new way of explaining individual research preferences. Our general result is that all three categories play a role within the context of UK legal academia, though the relationship between the “macro” and the “micro” level is not always straight-forward. We also provide comparisons with the US and Germany and show that in all three countries law as an academic tradition has been constantly evolving, raising questions such as whether the UK could or should move further to a social science model already dominant in the US.The Online Supplement for this paper is available at the following URL: http://ssrn.com/abstract=2097698

Disappearing Paradigms in Shareholder Protection: Leximetric Evidence for 30 Countries, 1990-2013

Scholars frequently claim that the path dependency of the law, the influence of the US model of corporate governance, and the role of legal origin and the stage of legal development are key for a comparative understanding of shareholder protection. This article, however, suggests that these paradigms of comparative company law gradually seem to be disappearing. The basis for our assessment is an original leximetric dataset that measures the development of shareholder protection for 30 countries over the last 24 years. Using tools of descriptive statistics, time series and cluster analysis, our main findings are that all legal origins now have on average about the same level of shareholder protection, that paternalistic tools have overtaken enabling tools of protection, and that, after the global financial crisis, this area has become a less frequent object of law reforms.

The rules on Conflict of Laws in the European Takeover Directive

The rules on conflict of laws are the cornerstones of the new European Directive on Takeovers. The following article will critically, but overall positively evaluate their solutions by way of comparison with the scope and applicability of domestic takeover laws in Germany, France, the UK and the USA, concentrating in various manners on the real seat of the target, on the place of its listing or on the residence of the shareholders

The OECD Principles of Corporate Governance in Emerging Markets: A Successful Example of Networked Governance?

The contribution of Mathias Siems and Oscar Alvarez-Macotela, The OECD Principles of Corporate Governance in Emerging Markets: A Successful Example of Networked Governance?, discusses whether the approach of the OECD Principles of Corporate Governance, predominantly aimed at the law-makers and firms of emerging markets, can be regarded as a success. While features of networked governance are clearly visible in the drafting and operation of the Principles, the practical effectiveness may be hindered by the lack of well-functioning local institutions. Moreover, while appreciating that the OECD has engaged in activities such as regional roundtables in order to take account of the local context, the Principles themselves are based on the corporate governance model of the OECD member countries not perfectly suitable for emerging markets. Recent events also point towards scepticism of whether adoption of the Principles can be seen as an effective way to prevent future financial crises.