PUBLISHED:April 06, 2009

Global Law Workshop - Jennifer Hill

Monday, April 13, 2009
4:30 - 6:00 pm | Room 4042
Duke Law School

Selective Regulation: Lessons from the News Corp. Waivers

The quality of corporate governance is a central theme in the "law matters" hypothesis. It also underlies several other contemporary comparative corporate governance debates, such as convergence theory, the cross-listing debate, and “enforcement intensity” literature.

The "law matters" hypothesis uses minority shareholder protection as a litmus test for capital market growth. The study has been subject to much scrutiny and criticism in legal scholarship and, more recently, in finance literature. A pervasive criticism is that the "law matters" study focused on "law on the books," rather than law in action.

A central argument in these critiques of the “law matters” hypothesis is that "law off the books" may be equally, or more, important than formal rules. This paper considers a particular aspect of this debate, which has received surprisingly little attention in comparative corporate governance debate. That is the issue of waivers, which constitutes an important piece in the regulatory enforcement mosaic. The paper considers ways in which regulation may be subverted, sometimes systematically, through the technique of waiver.

The granting of waivers constitutes a form of selective regulation. Waivers enable the relevant regulator to determine which rules and principles will be enforced, when, and against whom. The paper examines the phenomenon of selective regulation, via waiver and other means, in three case studies from different jurisdictions - Australia, the US, and China. A comparison of these case studies provides interesting insights into the diverse policy goals which the waiver power may be used to effect, and its implications for enforcement of financial market regulation in the post-credit crisis era.

Jennifer Hill is Professor of Corporate Law at Sydney Law School and a member of the Ross Parsons Centre of Commercial, Corporate and Taxation Law. She coordinates the postgraduate program in corporate, securities and finance and teaches in the areas of Australian Corporate Law, US Corporate Law, Corporate Governance and Comparative Corporate Governance. She has been a Visiting Professor in the US on a number of occasions, including at Vanderbilt University (2003, 2006, 2007, 2009-2010); University of Texas at Austin (1999); University of Virginia (1998); Cornell University (1994) and Duke Law School (1989) and was a Visiting Fellow at the European University Institute, Florence, Italy in 2007.

Professor Hill has written widely in the areas of corporate law and governance. She is currently involved in several international corporate governance research projects. These include a comparative research project on US and Australian executive remuneration contracts with Professors Randall Thomas and Ronald Masulis at Vanderbilt University. She is also a Research Associate of the European Corporate Governance Institute (ECGI) and is a member of the ECGI Legal Scholar Network, participating in a major international study, the “One Share One Vote” project, commissioned in 2006 by the European Commission. She is a member of the Editorial Board on International Corporate Law and Financial Regulation for Cambridge University Press and is a Corporate Law contributor for the New Oxford Companion to Law (Oxford University Press).

She was President of the Australian Corporate Law Teachers Association (2004-1006) and is a member of the Law Council of Australia, Corporations Law Committee. She is also a member of the Corporations and Markets Advisory Committee (CAMAC), Legal Sub-Committee, which advises the Federal Government on corporate law reform.

Many of Prof. Hill’s publications are available on the Social Science Research Network (SSRN).

Open to all. To RSVP or to get a copy of the paper, contact Neylân Gürel.