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SUFE School of Law Successfully Held International Symposium on "The Corporation in a Changing World"

 

By Translator Hu Ran & Constance Li

 

At 9:00 AM, October 21, 2017, hosted by Shanghai University of Finance and Economics School of Law, together with its Commercial Law Center, the International Symposium on "The Corporation in a Changing World" was held ceremoniously in the 8th Ladder Classroom (Moot Court) in Wudong Campus of Shanghai University of Finance and Economics. More than 50 corporate law scholars and experts in the practice field from the United States, the United Kingdom, Holland, Australia and domestic attended the symposium. The symposium lasted for a day and a half, and was divided into opening ceremony, five theme discussion panels and closing ceremony.

 

 

The opening ceremony was chaired by Prof. Song Xiaoyan, Acting Vice Dean of Shanghai University of Finance and Economics School of Law. First of all, she expressed warm welcome and thanks to the scholars and guests. At the same time, she pointed out that it would be great to discuss and research the issues related with the corporation in a changing world from an internationalization view of corporation law.

 

 

Prof. Zheng Shaohua, Assistant to the President of Shanghai University of Finance and Economics, Tsinghua University School of Law Prof. Zhu Ciyun, Senior Vice President of China Commercial Law Research Society, Boston College School of Law Prof. Kent Greenfield and Shanghai University of Finance and Economics School of Law Prof. Ezra Wasserman Mitchell delivered their speeches one after another.

 

Prof. Zheng Shaohua pointed out that Shanghai University of Finance and Economics School of Law always pays great attention to the internationalization development, expending exchanges and cooperation with many famous overseas law schools. Prof. Zheng Shaohua also pointed out that we should focus on the influence that the state-owned enterprises internal governance and government bring for the corporation's institutional changes, the similarities and differences between domestic corporation and foreign corporation and other important issues. He expressed welcome for deeper discussion about these issues.

 

 

Prof. Zhu Ciyun expressed congratulation to Shanghai University of Finance and Economics School of Law for the progress it has made and hoped there would be more popular cooperation with Shanghai University of Finance and Economics School of Law. For the theme of the symposium, Prof. Zhu Ciyun said that Chinese corporation law was set up in the full study of foreign ideas, but developed its own characteristics, such as the status and the system of state-owned enterprises in corporation law and the centralized and unitary ownership of Chinese corporation. Prof. Zhu Ciyun spoke highly of the symposium, thought the symposium build a good platform for the development of corporation law and hoped that the corporation system would achieve real progress in both theoretical and practical sense through the exchange of different ideas. 

 

 

Prof. Kent Greenfield expressed great pleasure that the symposium invited many scholars at home and abroad to discuss the development of the corporation, and made a high evaluation of the far-reaching significance of the symposium.

 

 

Prof. Ezra Wasserman Mitchell pointed out that the main purpose of traditional corporation is profit, but now in many countries in the world, especially in China, corporations not only pay attention to profit, but also to protection of environment, interests of employees and workers, legitimate rights and interests of consumers. Although the views on the development of the corporation system vary, each point is very important.

 

 

Panel One

 

On the morning of October 21, Panel One was chaired by Prof. Fabian Amtenbrink, Vice Dean of Erasmus University Rotterdam Law School. There are four speakers in this panel.

 

The first speaker is Prof. Jean du Plessis from Deakin University Law School, with the theme of “Duties and the ‘Best Interests of the Corporation’”. Prof. Jean du Plessis compared the legislation on the principle of best interests of company, directors' obligations and corporate governance between Australia and Delaware. Through the comparative analysis, Prof. Jean du Plessis pointed out that Australia and Delaware legislation both have emphasized that directors must make efforts for the best interests of company in corporate governance. But, there are also differences. The former emphasizes the best interests of company is the largest shareholders’ interests; the latter tends to consider the overall interests of company.

 

 

The second speaker is Prof. Lou Jianbo, Associate Professor of Peking University Law School, with the theme of “The Financing of a Hostile Takeover in Chinese Securities Market and Its Legal and Policy Implication”. Prof. Lou Jianbo introduced the three stages of the development of Chinese financial market, starting from the struggle between Baoneng and Wanke. He also analyzed the legal regulations about acquisition in Chinese cooperation law, securities law and general provision of loan, pointed out the importance of acquisition in a reasonable way of financing and put forward specific ideas for hostile acquisition regulation.

 

 

The third speaker is Prof. Cindy Schipani from University of Michigan Ross School of Business, with the theme of “Worker Voice in China:  The Evolution of the Staff and Worker Representative Congress”. Prof. Cindy Schipani delivered her speech from the specific connotation and barrier of workers’ voice, acoustic mechanism and way of act, the worker representative congress, relevant provisions of Chinese law and other aspects. She pointed out that the acoustic mechanism needs to be further improved and it conforms to Chinese harmonious interpersonal relationship and the reality of modern corporate governance.

 

 

The fourth speaker is Prof. Martijn Scheltema from Erasmus University Rotterdam Law School, with the theme of "Human Rights Due Diligence in M&A”. Prof. Martin introduced the differences between traditional due diligence with business and human rights due diligence in company mergers. He used the cases of mineral company acquisition and software company acquisition to demonstrate the special role of human rights due diligence. He also introduced the specific methods of human rights due diligence.

 

 

Shanghai Municipal Government Legal Office Vice Director Luo Peixin summarized Prof. Jean du Plessis's speech and analyzed that the current Chinese cooperation law is exploring the balance of imperfection through procedural rules. He also pointed out what is the impact of the company's long-term interests, short-term interests and shareholders' personal preferences on the directors' obligations.

 

 

Shanghai University of Finance and Economics School of Law Lecturer Fan Jian cited cases to demonstrate the significance of human rights due diligence to Chinese overseas investment. He pointed out that the strict disclosure requirements in some articles of association are not valid in violation of the provisions of securities law and hostile takeover is negatively evaluated by securities regulator.

 

Prof. Li Jianwei from Civil, Commercial and Economic School of Law, China University of Political Science and Law, agreed with Prof. Cindy’s opinion to research the theme of Chinese worker’s vocal problems, put forward relevant suggestions and analyzed the differences of acoustic mechanism among employees of different types of enterprises in China. He thought staff in state-owned enterprises has the rights to express their voice in reality.

 

 

Then, the symposium entered into the open discussion session. Prof. Megan Bowman, Prof. Larry Kata Becker and Dr. Si Ceng raised questions to the speaker, and several speakers made detailed answers.

 

Panel Two

 

On the afternoon of October 21, Panel One was chaired by Tsinghua University School of Law Prof. Zhu Ciyun, Senior Vice President of China Commercial Law Research Society. There are three speakers in this panel.

 

The first speaker is Lecturer Eli Bukspan from the Radzyner Law School of the Interdisciplinary Center in Herzliya, with the theme of “Direct Legal Application of Human Rights in the Private Sphere: Corporations as the First Step”. He thought that human rights in Constitution must be applied directly and explicitly in public law, and it should be applied prudently in private law. Then, he discussed the normative reason, the development of corporation law, human rights law and explained how the United Nations Guidelines of 2011 would further support the direct application model and its importance in the modern corporate social structure.

 

 

The second speaker is Prof. Frank Partnoy from University of San Diego School of Law, with the theme of “Corporations and Human Life”. He put forward and discussed two problems: one is that if employees know the relationship between company decision-making risks and their life interests, what will their choice be; another is on the basis of clear assessment of the impact on human life, how much life may be affected, when they will be affected, and then use the low social discount rate to translate future value into today's condition.

 

 

The third speaker is Prof. Kent Greenfield from Boston College Law School, with the theme of “Corporations Are People Too”. He proposed whether companies and economic entities should be owners of rights, taking the example of the great impact of large corporations in the United States on state and government.

 

 

Prof. Li Yuwen, Director of Erasmus China Law Centre, Erasmus University Rotterdam School of Law, pointed out that employee rights are realized through three pillars: protection of human rights, realization of responsibility, and compensation for workers.

 

 

Prof. Leng Jing from East China University of Political Science and Law, School of International Finance and Law, put forward three comments. First, multidisciplinary research methods are applied, including political, philosophical and other multidisciplinary fields, public law and private law research, as well as various cross-border researches. Second, transnational and large enterprises are influencing the world in legislation and other fields. Third, the changing world, the development of science and technology, give us more powerful help, and therefore have a favorable and adverse impact on us.

 

 

Prof. Shen Wei, Dean of Shandong University Law School, said that, unlike western enterprises, Chinese enterprises could not obtain political rights. Then, he put forward his own opinion. He thought it is difficult to measure the value of people with money comparing with measuring enterprises with money. From the view of economic law, whether it is necessary to take measures to protect human rights in enterprises or not.

 

 

In the open discussion session, experts and scholars have not only launched a heated discussion on the contents of the three speakers, but also found new issues worthy of study.

 

Panel Three

 

Hong Wu, the Professor of East China University of Political Science and Law, School of Economic Law, and President of Institute of Financial Law of Shanghai Law Society as the moderator, there were three speakers in Panel Three.

 

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The first speaker was Gongyun Gu, the Professor & Vice President of East China University of Political Science and Law, whose topic was “Reform of SOEs and Implementation of Company Law”. Professor Gu illustrated the three stages of Reform of SOEs, analyzed the four changes of the Reform of SOEs after the implementation of Company Law, and proposed his idea about the current Reform of SOEs.

 

The second speaker was Li Guo, the Professor & Vice Dean of Peking University Law School, whose topic was “The Chinese Board of Supervisors System:  An International Comparison”. Professor Guo pointed out that there are still some problems in the practice process of current Chinese board of supervisors system, for example, the “virtual position” phenomenon in the board of supervisors, although Chinese has learned from German, Japanese and American experience. He stressed that learned from Japanese experience, the substantial role of board of supervisors could be strengthened by improving the professional requirements of the supervisors’ position, changing the board of supervisors into an option of the corporate structure and so on.

 

The third speaker was Ezra Wasserman Mitchell, the Professor of Shanghai University of Finance and Economics School of Law, whose topic was “Convergence East to West”. Professor Mitchell compared the East legal system and culture with the West, and indicated the tendency that the East learned from the West’s experience of corporate governance and financial supervision and that the West learned from the East’s experience of corporations bearing the social responsibility.

 

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The commentator, Wei Yu, the Deputy Chief Judge of Shanghai High People’s Court Civil Trial Chamber II, pointed out that with the contract, lease and joint venture system in the Reform of SOEs extending to nowadays, SOEs were still faced with some problems left over by history, for example, corporations’ internal governance issues, “throw burden away” problems. In the practice, the majority was small and medium enterprises, whose disputes of board of supervisors were just a fraction, while disputes of which mainly generated due to the coincidence of shareholders, directors and supervisors.

 

The commentator, Changyin Han, the Professor of Shanghai Jiao Tong University KoGuan Law School, agreed with Professor Gu’s opinions on the stage division of Reform of SOEs. Professor Han brought out the problems of overcapacity and government procurement existing in the SOEs. And he thought that the supervisors should be independent, that the independent directors should aim at the corporations’ operation, and that independent directors’ professional competence should be emphasized because it would make a huge influence on corporate governance.

 

The commentator, Kent Greenfield, the Professor of Boston College Law School, pointed out that corporations should choose their roads under the considerations of realistic conditions as corporations’ social responsibility more and more frequently entered into the corporate governance and the patterns of corporate governance became more and more variable.

 

In the open discussion, everybody talked about themselves opinions. Among which, Professor Larry Catá Backer, Professor Megan Bowman, the three commentators, the three speakers and the moderator Professor Hong Wu all exchanged ideas about corporate social governance, the influence on Reform of SOEs made by big data and so on.

 

Panel Four

 

In the morning of 22nd, October, Yulin Qian, the Professor of East China University of Political Science and Law School of Economic Law as the moderator, there were three speakers in Panel Four.

 

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The first speaker was Theresa Gabaldon, the Professor of The George Washington University School of Law, whose topic was “Exploitation and Antidotes: A Corporate Law-Based Approach to Overmarketing and Overpricing by Big Pharma”. Based on the two abnormal phenomena in American pharmaceutical industry: over-pricing and over-advertising, she put forward her opinions on these phenomena and pointed out that corporations should focus more on problems caused by them.

 

The second speaker was Jeffrey Gordon, the Professor of Columbia University School of Law, whose topic was “Convergence and Persistence in Corporate Law and Governance”. First, Professor Gordon put forward the method of measuring convergence through the coding of national legal regimes and other comparative measures, finding “divergence in convergence.” Second, Professor Gordon discussed the evidence of “non-convergence” and “divergence-convergence” and the works of global governance in the convergence of corporate governance. Finally, Professor Gordon held the view that the convergence in corporate governance should be firstly discussed as the growth and development issue in the plan.

 

The third speaker was Megan Bowman, the Lecturer of King’s College London The Dickson Poon School of Law, whose topic was “The Limitations of Business Case Logic for Societal Benefit & Implications for Corporate Law: A Case Study of ‘Climate Friendly’ Banks”. Under the background of “Paris Agreement”, Professor Bowman pointed out that, aiming at control the change of temperature over a specific range, centering on economic and technology and transferring climate resources was required to reduce carbon emissions and to mitigate climate change. She indicated that as energy transformation was the global transformation, it was not only the national duty but also the corporate duty.

 

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The commentator, Xujun Gao, the Professor of Tongji University Law School, firstly summarized the speech of Professor Gordon. And then put forward two worth-discussing questions: how to deal with the problem discussed by Professor Gordon when the reason of over-pricing could not be found from the corporate structure? And how to improve the legal system to deal with the problem when it was caused by Patent Law.

 

The commentator, Frank Partnoy, the Professor of University of San Diego School of Law, commented the speech of Professor Gordon. Professor Partnoy said that according to the past 15 years survey, Professor Gordon’s paper assessed the legal research means in some published books, illustrated the difference between voting-right owned shareholders and non-voting-right owned shareholders in the process of IPO, the phenomena that more and more corporations tended to use the stock-holding mean, and debt relevant problems in the IPO mechanism.

 

Finally, the commentator, Xiao Pan, the Lecturer of Shanghai University of Finance and Economics School of Law, discussed the speech of Professor Bowman in depth based on her own research achievements. She held the view that corporate voluntary work could not only improve the corporation’s reputation, but also induce some extra economic benefits, for example, tax incentives.

 

Panel Five

 

In the final panel of the symposium, it was Zhongxiao Yang, the Professor & Director of Development Planning Department of East China University of Political Science and Law who was the moderator. And there were three speakers in this panel.

 

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The first speaker was Larry Catá Backer, the Professor of Pennsylvania State University Dickinson School of Law, whose topic was “The (In)visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age”. Professor Backer illustrated the visibility and invisibility of corporate personality from the theoretical system and normative system these two aspects, and pointed out that globalization, corporations emerging, and corporate social responsibility legalization and other factors induced the destabilization of the corporate personality.

 

The second speaker was Barnali Choudhury, the Senior Lecturer of University College London Faculty of Law, whose topic was “Corporate Governance for All?” She pointed out that corporations should pay attention to not only the interest distribution issue but also other problems, which was proved by limiting corporate executive salary level and non-financial information disclosure these two aspects.

 

The third speaker was Shihong Li, the Lecturer of East China University of Political Science and Law, School of International Finance and Law, whose topic was “Research on the Legal Issues Concerning the Pass-through Execution of Shareholders’ Rights”. Lecturer Li pointed out the fundamental of the pass-through execution of shareholders’ rights was the abstract analysis of a lot of scattered rights in American Law, reflecting the ductility of shareholders’ rights that corporate governance was transferred from the plane structure to the three-dimensional structure. Lecturer Li indicated that the pass-through execution of shareholders’ rights has two types: forward pass-through and reverse pass-through.

 

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The commentator, Weijun Ge, the Professor & Vice Dean of Shanghai University of Finance and Economics School of Law, pointed out that the pass-through of shareholders’ rights was a difficult topic. And he responded to the speech of Professor Backer with the nature of corporate group and the theory of asset segmentation. Then he indicated that there was no conflict between the economic purpose and the social purpose in the corporations, taking corporate charity donations as the example. Finally, he commented that what Professor Choudhury talked about the limitation of executive salary in the British Law meat a lot to the Chinese Corporation Law.

 

The commentator, Lingyan Xu, the Associate Professor of Fudan University Law School, pointed out that in the changing world, promoting global ethical consensus was helpful to improve corporate governance. And as contract theory was continuing to evolve, finally the contract theory which catered to the corporate governance and financial regulation would be produced.

 

The commentator, Si Zeng, the S.J.D. Candidate of Yale University Law School, put forward his opinions from three aspects. First, it was worth to think over whether the law of corporate governance at current stage was good law, whether the enterprise needed to establish internal mechanisms. Second, nowadays the global production chain was very complex; traditional appliance of the principle of piercing the corporate veil was too complex; it was an important question about how to set up the standard under the background of globalization. Third, the question whether the strict regulation of multinational corporations would lead to the conversion of their place of registration needed to be considered.

 

There was a really heated open discussion in this final panel. Professor Kent Greenfield, Professor Jean du Plessis, Professor Cindy Schipani, and Professor Xujun Gao and the three speakers  conducted a cross-style question and answer, and discussed the relevant topics in depth.

 

Closing Ceremony

Weijun Ge, the Professor & Vice Dean of Shanghai University of Finance and Economics School of Law, was the moderator in the closing ceremony.

 

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Frank Partnoy, the Professor of University of San Diego School of Law, pointed out that benefitted from this symposium, his own ideas have been greatly enriched. This symposium brought together ideas from all over the world and various fields, demonstrating the attraction of interdisciplinary.

 

 

Finally, Xiaoyan Song, the Professor & Acting Vice Dean of Shanghai University of Finance and Economics School of Law, made the speech of closing ceremony. She spoke highly of all speeches and content in this symposium from the theoretical, historical and methodological aspects, thanked all guests and staff and hoped that such international symposium would continue to be held in SUFE Law School.

 

This symposium provided a good platform for Chinese and foreign scholars expertized in Corporation Law to exchange ideas, to collide thought and to know the frontier of all countries’ corporate law research. All experts and scholars spoke highly of the theme, the content of speeches, and the organization of the symposium. 

 

Original News:( http://law.shufe.edu.cn/show.aspx?info_lb=12&flag=12&info_id=3503)

Published:2017-12-16 Hit:151
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