Working Paper Series

The Working Paper Series, launched in May 1999, aims at promoting the dissemination of the research results of different researchers within the Financial Law Institute to the broader academic community.

A full list of Working Papers published up to now is reproduced on this page. Each Working Paper is available in full text in Acrobat-format. The use and further distribution of the Working Papers is allowed for scientific purposes only. Working Papers are published in their original language (Dutch, French, English or German) and are provisional.

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Current Year

WP 2018-01

Eddy Wymeersch : Brexit and the provision of financial services into the EU and into the UK

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Brexit is likely to lead to the relocation of UK financial services firms to the EU in order to be able to access EU markets, mainly through the EU passport. The same applies to the EU firms intending to be active on the UK markets. The access conditions to the EU markets are numerous and complex, laid down in EU and national legislation and regulation, and applied by the national supervisory authorities. The European Supervisory Authorities or %u201CESAs%u201D have published elaborate statements, called Opinions, on the detailed access conditions and the way they intend to apply these. The two main objectives are the full application of EU law, and the avoidance of authorising EU firms that would be %u201Cempty boxes%u201D for activity that would in fact be exercised in the UK, and this mainly by delegating activities to another firm. Underlying is a policy of competition between national economies for relocations of EU firms, or of business activities to be developed on the UK financial markets.
WP 2018-02

: Het vennootschapsrecht aan de vooravond van een fundamentele hervorming: een eerste overzicht en evaluatie

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WP 2018-03

Simon Landuyt : A Capital Question, Should Shareholder Loans Be Automatically Subordinated

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Whether or not shareholder loans should be automatically subordinated in bankruptcy is a much discussed topic in corporate and insolvency law. In this article I show that, because of the existence of non-adjusting creditors, shareholder-managers will sometimes have the incentive to take excessive risk. The subordination of shareholder loans forces the shareholder to internalize these costs. On the other hand, subordination of shareholder loans might also deter the undertaking of desirable projects. On balance, it is likely that subordination is efficient and reduces the agency cost of debt. Furthermore, I will show that shareholders should bear more risk because they are better monitors, do not suffer from information asymmetries and have higher expectations of default. Therefore, if shareholders and outside creditors could hypothetically bargain ex ante in a world without transaction costs on the rank of their debt claim, there is not much doubt that they would agree on subordination. Proving that subordination of shareholder loans is inefficient would imply that the subordinated position of equity is inefficient %u2013 and further shake the concept of legal capital on its foundations.
WP 2018-04

Evariest Callens : De handelsverplichting voor derivaten onder MiFIR

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In deze bijdrage wordt de draagwijdte van de handelsverplichting voor derivatencontracten onder MiFIR onderzocht. Nadat in een eerste deel op functionele wijze het onderscheid tussen de verschillende handelsplatformen onder MiFID II wordt toegelicht, pogen we in een tweede en derde deel na te gaan welke marktparticipanten en derivatencontracten worden onderworpen aan de MiFIR-handelsverplichting. Daarbij beperken we ons niet tot het reguleringsniveau van de genoemde verordening (en richtlijn), maar besteden we ook aandacht aan de meer technische gedelegeerde verordeningen. Finaal exploreren we in welke mate publiek- en privaatrechtelijke mechanismen kunnen worden aangewend om de handelsverplichting af te dwingen.
WP 2018-05

Eddy Wymeersch : Shareholder Governance

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WP 2018-06

Eddy Wymeersch : Recensie: E.J. VAN PRAAG, Europees Financieel Toezicht

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Last Year

2017-03

Eddy Wymeersch : The law of groups of companies according to Belgian law

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WP 2017-01

Eddy Wymeersch : Shadow banking and Systemic risk

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The consequences of the Brexit vote will be felt throughout the legal systems, both in the UK and in the EU. The legal consequences of the Brexit decision and the process which will lead to the withdrawal of the UK, raises numerous questions many of which are in the process of being analysed, and possibly solved. In the field of company law, with respect to cross-border matters, UK companies will be exposed to national laws in the EU States after the Treaty freedom of establishment will not further apply. This may lead to tensions between the two systems of recognition of foreign companies, i,e. the incorporation theory and the seat theory. Foreign companies active in seat jurisdictions may in the future be disqualified if their seat is effectively established in the seat State. Access may become more difficult, not on the basis of company law, but of sectoral regulations. In other part of the regulatory system, such as the rules on cross-border mergers, on rights of shareholders in listed companies, or disclosures to be made, equivalence of rules, as decided by the European Commission, will be the key factor. Additional issues will arise for the cross-border recognition of accounting standards and for the activity of auditors.
WP 2017-02

Eddy Wymeersch, Peter BÍCKLI, Paul L. DAVIES, Eilis FERRAN, Guido : The consequences of Brexit for companies and company law

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The consequences of the Brexit vote will be felt throughout the legal systems, both in the UK and in the EU. The legal consequences of the Brexit decision and the process which will lead to the withdrawal of the UK, raises numerous questions many of which are in the process of being analysed, and possibly solved. In the field of company law, with respect to cross-border matters, UK companies will be exposed to national laws in the EU States after the Treaty freedom of establishment will not further apply. This may lead to tensions between the two systems of recognition of foreign companies, i,e. the incorporation theory and the seat theory. Foreign companies active in seat jurisdictions may in the future be disqualified if their seat is effectively established in the seat State. Access may become more difficult, not on the basis of company law, but of sectoral regulations. In other part of the regulatory system, such as the rules on cross-border mergers, on rights of shareholders in listed companies, or disclosures to be made, equivalence of rules, as decided by the European Commission, will be the key factor. Additional issues will arise for the cross-border recognition of accounting standards and for the activity of auditors.
WP 2017-04

Eddy Wymeersch : Brexit and the Equivalence of Regulation and Supervision

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After Brexit, the UK will become a third country. In the absence of a transitional agreement, its access to the EU markets will be conditioned on meeting the condition of "equivalence of regulation and supervision" as laid down in many EU regulations. Although in substance the UK regulations will be equivalent, the absence of a formal equivalence Commission decision may constitute a serious obstacle to the UK continuing to offer financial services on the EU markets. The consequences would be quite disruptive. An analysis of the different equivalence provisions reveals however a much more complex situation, indicating on the one hand that UK firms may continue to take part in the EU%u2019s financial markets through subsidiaries, on the other may offer their services to sophisticated investors, while in some cases equivalence will be in the hands not of the Commission but of the market supervisors, allowing for more flexible outcomes.