The enterprise group form presents special risks of mismanagement when entities in the group are in financial trouble. At the same time, pursuing a group interest might assist in resolving the financial difficulties. In any event, delineating rules for this situation is challenging, given the variety of group structures and the potential erosion of the benefit of limited liability when the regulation targets the whole group. The conflict is between ‘entity law’ (which addresses each group entity separately) and ‘enterprise principles’ (addressing the group as a whole). There is scope for crafting the ‘wrongful trading’ provision, now being adopted as an international standard, to accommodate the group scenario. In this context, enterprise principles should function only to help ascertain the commercial reality, rather than to override entity law.

This article explores how issuer liability re-allocates fraud risk and how risk allocation may reduce the incidence of fraud. In the US, the apparent absence of individual liability of officeholders and insufficient monitoring by insurers undermine the potential deterrent effect of securities litigation. The underlying reasons why both mechanisms remain ineffective are collective action problems under the prevailing dispersed ownership structure, which eliminates the incentives to monitor set by issuer liability. This article suggests that issuer liability could potentially have a stronger deterrent effect when it shifts risk to individuals or entities holding a larger financial stake. Thus, it would enlist large shareholders in monitoring in much of Europe. The same risk-shifting effect also has implications for the debate about the relationship between securities litigation and creditor interests. Creditors' claims should not be given precedence over claims of defrauded investors (e.g., because of the capital maintenance principle), since bearing some of the fraud risk will more strongly incentivise large creditors, such as banks, to monitor the firm in jurisdictions where corporate debt is relatively concentrated.

The article discusses the most recent corporate governance developments both in Switzerland, in the aftermath of the adoption of the so-called ‘Anti-Rip-off’ Initiative, and in the EU, based on the Action Plan ‘European Company Law and Corporate Governance’. Compared with previous EU Green Papers, the reforms envisaged in the Action Plan issued by the European Commission on 12 December 2012 are moderate and rather cautious. In Switzerland, the adoption of the ‘Anti-Rip-off’ Initiative on 3 March 2013 was a game-changing political decision for the future development of corporate governance in listed corporations. There are many parallels between the most recent developments in Switzerland and the EU. Both jurisdictions see the enhancement of transparency and the increase of shareholders' sense of responsibility when it comes to corporate governance as key objectives. At the same time, differences are emerging between the strategies used in each jurisdiction. While the EU is strengthening both the legal position and the autonomy of shareholders, Switzerland is imposing legal obligations on shareholders to ensure appropriate engagement. This raises the fundamental question of whether the aim of sound corporate governance is better served by the enhancement of transparency and shareholder rights or by intensified legislative intervention. Against this backdrop, this comparative legal article analyses selected reform efforts to strengthen the role of shareholders and to improve transparency on the part of companies, institutional investors, and proxy advisers.

In recent years, there has been a growth in the use of English schemes of arrangement by companies registered in other EU Member States. Recent high-profile examples include TeleColumbas GmbH, Rodenstock GmbH, Primacom Holdings GmbH, Re Metrovacesa SA and Re Seat Pagine Gialle SpA, although there are many more. In each case, these companies were able to access the English scheme jurisdiction without shifting their seat or COMI to the UK. This paper investigates this phenomenon, explaining the use of an English scheme of arrangement and why it might be regarded as valuable to these companies. The paper then tackles two issues. First, it assesses how these companies are able to access the English scheme jurisdiction, and, in particular, it analyses the potential application of both the Insolvency Regulation and the Judgments Regulation in this regard. As part of this analysis, the recognition and enforcement of English schemes of arrangement in other Member States is discussed. Second, it considers whether this use of English schemes by companies registered in Germany, Spain, Italy and elsewhere gives rise to issues of forum shopping. This paper rejects the idea that forum shopping should be regarded as a concern in this context.

The problem of claims heterogeneity makes allocating decision-making powers an arduous task for any insolvency law that aims to vest control over corporate insolvency proceedings in the creditors.

The Czech Insolvency Act 182/2006 is a case in point. One of the Act's chief reform aims was to take control over the proceedings away from the hands of the judges and insolvency trustees and vest it in the creditors.

Five years after the Act entered into force, it is time to look at how it succeeded in its ambition. This article reviews the rules allocating decision-making powers between secured and unsecured creditors in relation to several key ‘turningpoints’ in Czech insolvency proceedings, and also looks at how the initial rules were interpreted and applied by the insolvency courts. It also points to a set of amendments adopted by the Czech Parliament in the autumn of 2013 with a view to codifying those interpretive approaches that were found to work, as well as reversing those where the insolvency judiciary was thought to have drifted away from the original intentions of the Act.

In particular, the article looks at creditors' decisions on (a) the type of proceedings, (b) the appointment, removal, powers and conflicts of the insolvency trustee, (c) the election and removal of the creditors' committee, and (d) the assumption of the creditors' committee's powers by the creditors' meeting.

The article is limited to rules applicable to corporate debtors.