Legal Evolution and Hybridisation: The Law of Shares Transfer in England (Ius Commune Europaeum 126)
By: Matteo Solinas (author)Paperback
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This is a book on comparative law and legal change. With a focus on corporate law and the law of personal property, it reviews the current state of the comparative debate on the evolution of law and seeks to establish new perspectives to explain the mechanism of legal reception. It finds the comparative discussions centred on the appropriateness of describing the movement of law from one country to another in terms of 'legal transplants' perplexing and lacking in a convincing inquiry into the reception process. In an attempt to fill that gap, this study contends that certain recent contributions on culture contact and culture change provide an interesting explanation for the circulation of juridical models across national boundaries. More precisely, this study argues that the notion of hybridity, as originated in postcolonial theory, offers a formidable conceptual means to examine the intricacies of legal evolution, to refine and to give content to the observation of the reception of law. The analysis in comparative jurisprudence put forward in this book does not rest exclusively on theoretical grounds.
The complexities of the themes involved are explored and tested by focusing on a case study. This is the legal mechanism by which shares in companies are transferred in England under the direct and indirect holding systems.
Matteo Solinas joined the University of Glasgow as lecturer in corporate and financial law in 2010. He holds degrees from the London School of Economics (PhD), Universita' Cattolica (LLB), Bocconi and the University of Warwick (LLM). In 2008 he worked as research assistant at the Financial Markets Law Committee c/o Bank of England. He is admitted to the Italian Bar and a qualified solicitor in England and Wales.
Foreword Preface Acknowledgements Table of Cases Introduction PART I. THE IDEA OF HYBRIDITY IN COMPAR ATIVE LAW Chapter 1. The Debate on the Diffusion of Law 1. The Terms of the Debate 1.1. Legal Transplants 1.1.1. Orthodoxy 1.1.2. A Doctrinal Refinement. 1.2. Postmodernist Approach to Legal Borrowing 2. Limits 2.1. The (Marginalised) Sociological Aspect of Law 2.2. The Opacity of the Postmodernist Perspective 3. The Way Forward 3.1. The Process of Reception 3.2. The Causes of Borrowing 3.2.1. Chance/Prestige 3.2.2. Economic Efficiency Chapter 2. The Leitmotif of the Book 1. The Concept of Hybridity 1.1. Foundation 1.2. The Theoretical Background 1.3. The Contents and the Effects 1.4. The Limits of the Notion of Cultural Hybridity 1.5. A Terminological Alternative 2. The Scope of the Postcolonial Debate 2.1. The Concept of 'Pseudo-Colonialism' 2.2. Hybridisation and 'Pseudo-Colonialism' 2.2.1. 'Pseudo-Colonialism' and Hegemony 2.2.2. An Archaeological Perspective 22.214.171.124. General 126.96.36.199. Non-Hegemonic Contacts 188.8.131.52. Hegemonic Contacts 184.108.40.206. Conclusions Chapter 3. Hybridisation and Legal Reception 1. Analogy 1.1. Introduction 1.2. Colonialism and the Process of Legal Borrowing 1.3. Patterns of Legal Reception: an Overview 1.3.1. Non-Hegemonic Contacts 220.127.116.11. The Context 18.104.22.168. Legal Transfers 22.214.171.124. Legal Reception in Germany 126.96.36.199. Conclusions 1.3.2. Hegemonic Contacts 188.8.131.52. General 184.108.40.206. The Mechanism of Reception 220.127.116.11. The Significance of the Reception of the Civil Code 18.104.22.168. Conclusions 2. The Test Case 2.1. General 2.2. Rationale 2.2.1. England 2.2.2. Modes of Share Transfer 2.2.3. Holding Patterns Summary of Part I PART II. THE CIRCULATION OF SHARES Introduction to Part II Chapter 4. The Transfer of Registered Shares 1. The Current Legal Framework 1.1. Legal Nature 1.2. Physical Manifestation 1.3. Modes of Transfer 1.3.1. Certificated Shares 1.3.2. Dematerialised Shares 1.4. Legal Characterisation of the Transfer of Registered Shares 1.5. The Protection of an Innocent Purchaser of Registered Shares and Competing Claims to the Legal Estate 1.6. Conclusions 2. Historical Foundations 2.1. Introduction 2.2. A Preliminary Clarification: the Meaning of Incorporation 2.2.1. The Court of Chancery and the Rise of the (Unincorporated) Company 2.2.2. Incorporated/Unincorporated Companies 2.3. Historical Basis for the Transfer of Registered Shares 2.3.1. Chartered and Statutory Companies 2.3.2. Partnership and Unincorporated Joint Stock Companies 2.3.3. From Unincorporated Joint Stock Companies to Registered Companies 2.4. Conclusions 3. Legal Borrowing and Hybridisation 3.1. Commercial Contacts 3.1.1. Relevance of the Italian Merchants in Medieval England 3.1.2. 'Pseudo-Colonial' Settlements 3.1.3. Commercial Contacts and Borrowing 3.2. Patterns of Borrowing and Reception 3.2.1. The 'Direct Bodily Transplantation' Theory 3.2.2. The Conventional View 3.3. Early Forms of Commercial Association 3.3.1. The Commenda 3.3.2. The Societas 3.3.3. The Compagnia 3.3.4. Conclusions 3.4. The Advent of the Joint Stock Company in England 3.4.1. On the Origin of the Joint Stock Company 22.214.171.124. The Orthodox Position 126.96.36.199. Critique of the Orthodox View 3.4.2. The Rise of the Joint Stock Model 3.4.3. Hybridisation 188.8.131.52. Complexities in the Pattern of Borrowing and Legal Reception 184.108.40.206. The Impact of Borrowing on Legal Evolution 220.127.116.11. Hybrid Paradigms 3.5. Conclusions Chapter 5. The Transfer of Share Warrants to Bearer 1. The Current Legal Framework 1.1. Legal Nature 1.2. Physical Manifestation 1.3. Transfer of Title in Share Warrants to Bearer 1.4. Nature of Transfer of Share Warrants at Common Law 1.5. The Protection of an Innocent Purchaser of Share Warrants to Bearer 1.6. Conclusions 2 . Notes on the Early History of Negotiable Instruments 2.1. The Initial Scheme for the Circulation of Negotiable Instruments 2.2. The Advent of the Exchange Transactions in England and its Economic Rationale 3. The Pattern of Reception of Negotiable Instruments 3.1. The Condition of Law Merchant and Common Law before the Eighteenth Century 3.1.1. The Conventional Interpretation 3.1.2. The Centrality of the Common Law 3.2. The Significance of the Debate on the Nature of Law Merchant on the Process of Hybridisation 3.2.1. Borrowing and Incorporation 3.2.2. Legal Reception and Negotiability 3.2.3. Hybridisation 3.3. Normative Consolidation 3.3.1. Bills of Exchange 3.3.2. Promissory Notes 3.3.3. The Bills of Exchange Act 1882 4. The Advent of Share Warrants to Bearer 4.1. From Scrip Certificates to Share Warrants to Bearer 4.2. Conclusions Summary of Part II. PART III. THE TRANSFER OF (INTERESTS IN) SHARES Introduction to Part III Chapter 6. Indirect Holding and the Process of Legal Evolution 1. Underlying Themes 1.1. Electronic Settlement Systems 1.1.1. Immobilisation 1.1.2. Dematerialisation 1.2. Sources of Legal Risk 1.2.1. Unsound National Law 18.104.22.168. Legal Arrangement for Indirect Holding 22.214.171.124. The Protection of the Account Holders' Assets from the Claims of an Intermediary's Creditors 126.96.36.199. Shortfalls in the Assets Held by the Intermediary 188.8.131.52. The No Look-Through Principle 1.2.2. Conflict of Laws. 1.3. Irreconcilable Conceptual Characterisations 1.3.1. Direct Enforcement Systems 1.3.2. Indirect Enforcement Systems 1.4. Conclusions 2. The Process of Legal Evolution 2.1. The Need for Law Reform 2.2. The (Substantive) Law Reform Projects 2.2.1. The Geneva Securities Convention 184.108.40.206. Chronology 220.127.116.11. Contents 2.2.2. The Advice of the Legal Certainty Group and the Consultation Document 18.104.22.168. Scope 22.214.171.124. Contents 2.2.3. Comparison 2.3. The Pattern of Legal Change and Hybridisation 2.3.1. Ad Hoc Response to Legal Uncertainty 126.96.36.199. The Protection of the Account Holders' Assets from the Claims of an Intermediary's Creditors 188.8.131.52. Shortfalls in the Assets Held by the Intermediary 184.108.40.206. The No Look-Through Principle 2.3.2. Hybridisation 2.3.3. A Broader Perspective 2.4. Conclusions Chapter 7. The Protection of the Innocent Transferee of Intermediated Shares 1. The English Legal Framework 1.1. The Concept of Equitable Interest in Shares 1.1.1. Relevance 220.127.116.11. Sale 18.104.22.168. Gift 1.1.2. The Constituent Elements of the Equitable Interest in Shares 1.1.3. The Legal Nature of Intermediated Shares 1.1.4. The Legal Nature of Successive Transfers of Equitable Interests in Shares Contents 1.2. The Direct Holding System 1.2.1. General 1.2.2. Dichotomy 1.3. The Indirect Holding System 1.3.1. General 1.3.2. Availability of the Defence for the Purchaser of Intermediated Shares 1.3.3. Absence of Legal Alternatives to Assist an Innocent Purchaser of Intermediated Shares 1.4. Comparison and Rationales 1.5. The Way Forward 1.5.1. The Establishment of a General Defence 1.5.2. The Reality of Modern Financial Transactions 1.5.3. An Ad Hoc Amendment of the Existing Law 1.6. Conclusions 2. A Comparative View 2.1. The Italian Legal System 2.1.1. Nature and Modes of Transfer 22.214.171.124. Nature 126.96.36.199. Modes of Transfer 2.1.2. The Operation of the Bona Fide Purchaser Defence 2.2. UCC Article 8 2.2.1. Overview 2.2.2. The Legal Framework for the Protection of the Innocent Purchaser of Intermediated Shares 2.2.3. Rationale 2.3. Conclusions 3. The Process of Law Reform 3.1. The Recommendations of the Law Commission 3.1.1. Amendments to the Existing Law 3.1.2. Other Possible Options 3.2. The Geneva Securities Convention 3.2.1. The Legal Framework 3.2.2. Genesis of Article 18 and the Debate in the Preparatory Works 3.2.3. The Advice of the LCG/Consultation Document 3.3. Legal Change and Hybridisation 3.3.1. First Step 3.3.2. Second Step 3.4. Conclusions Summary of Part III Conclusions Bibliography
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