Derecho Mercantil III (GED70121)

General information

Type:	OB	Curs:	3	Period:	S semester
ECTS Credits:	4 ECTS

Teaching Staff:

Group	Teacher	Department	Language
Ed: 1	Miguel Trías Sagnier	Derecho	ESP

Group	Teacher	Department	Language
Ed: 2	Miguel Trías Sagnier	Derecho	ESP

Commercial Law I

Training activity proposals:
-Classroom-based activities: 33 hrs, 32 % of the credits.
-Guided activities: 36 hrs, 35% of the credits.
- Participatory sessions: 22.5 hrs
- Preparation of assignments: 14 hrs
- Independent study: 35 hrs, 33 % of the credits.

This course forms part of the central core of the training required by all lawyers within the framework of Commercial Law. It covers materials that all students in the Law School, even those who use the information in areas outside the legal field, should be familiar with and handle with ease.

As regards values, we will examine how the structures and institutions addressed represent the core business structure and the foundations on which financial markets are based. Throughout the course we will reflect on ethical principles on which these institutions are founded: the principles of good faith, loyalty, trust, and the ongoing relation between exchange guarantees and free will are principles which will arise in our analysis of the structures, legal solutions and their interpretation.

After successfully completing this course, the student should be able to:
- Understand the regulations covering Limited Liability Companies.
- Understand structural change operations and their practical application in real scenarios of mergers, de-mergers and other similar scenarios;
- Differentiate between the problematic issues effecting the public (listed) company and the privately held company, as well as understand the principles and basic regulations covering securities markets
- Identify business insolvency scenarios and the legal treatment of insolvency and its procedures.

8. Quality orientation and achievement

19. Teamwork and collaboration

3. Taking decisions / making judgments

1. CONTENT COMMERCIAL COMPANIES The limited liability company. Other company types and structures. SECURITIES MARKET Aim: knowledge of the structure and functioning of the securities market, with a special emphasis on securities exchanges and specific regulations for publicly listed companies. Content: The securities market: Principles, regulation, institutions and operators. Publicly listed companies. Primary and secondary markets. INSOLVENCY LAW Aim: determine the scenarios of company insolvency, the legal treatment and procedure for insolvency. Content: Objective requirement. Insolvency procedure. Insolvency declaration. Insolvency administration. Effects on debtors. Effects on creditors. Effects on contracts. Determining assets and liabilities. Agreement and settlement phases. Appraisals.

2. CAPITAL COMPANIES (II). LIMITED LIABILITY COMPANY. LIMITED PARTNERSHIP THROUGH SHARES. TOPIC 1. THE LIMITED LIABILITY COMPANY I Causes of its appearance. Legal precedents and comparative law. Its evolution in Spanish legislation up to the Law passed on 23rd March 1995 and its current regulation under the Capital Companies Act. Idea and characters. Relations with the public limited company. Share capital and shares. Limited liability. Commercial character. Founding of the company. Deed and statutes. Contribution regime. The ancillary obligations. Shares and partners' rights. Non-voting shares. Acquisition, transfer and loss of shares and the status of partner. Acquisition of one's own shares. TOPIC 2. THE LIMITED LIABILITY COMPANY II Corporate governance. The Executive Board. The administrators. Annual accounts. Modification of the statutes. Increase and reduction of share capital. Separation and exclusion of partners. Dissolution and liquidation. Single shareholder company regime. New limited liability companies. TOPIC 3. LIMITED PARTNERSHIP THROUGH SHARES Concept and Regulation

3. STRUCTURAL CHANGES IN COMMERCIAL COMPANIES TOPIC 4. THE TRANSFORMATION. THE MERGER. Concept and cases of possible transformation. Maintenance of legal status. Proceedings: protection of partners and creditors. The transformation agreement and its registration. Concept and types of mergers. Financial function: the concentration of companies. Legal requirements: the continuity of participation and termination of some of the companies that merge. Effects of the merger: universal succession. Proceedings: preparation (merger assignment, reports by administrators and experts, merger balance), decision (calling a board meeting and adopting an agreement) and execution (publication, right to opposition, deed and registration). Special and assimilated mergers. Merger after a leveraged buy out. Cross-border mergers: legal regime and proceedings; the partners' right to separation. The European limited liability company. TOPIC 5. DEMERGER. GLOBAL TERMINATION OF ASSETS AND LIABILITIES. TRANSFER OF THE REGISTERED OFFICE TO ANOTHER COUNTRY. Concept and types of demerger. Financial function. Legal regime and effects. Special features of the proceedings: specific contents of the demerger report and reports by administrators and experts. Creditor protection regime. The global assignment of assets and liabilities: concept and types. Legal regime and proceedings. The transfer of the registered office to another country: concept and types. Legal regime and proceedings. The partners' right to separation.

4. OTHER CORPORATE AND INSTITUTIONAL FORMS AND TYPES OF COLLABORATION BETWEEN COMPANIES. CORPORATE GROUPS TOPIC 6. OTHER CORPORATE AND INSTITUTIONAL FORMS AND TYPES Cooperatives: concept, characters, types and legal system. Mutual societies: concept and legal system. Collective investment institutions: general regime. Investment companies. Investment funds. Management companies and depository agents. Venture capital. Companies and funds. Management companies. Pension plans and funds. Institutional types of company. Savings Banks: structure and governing bodies; shares. TOPIC 7. TYPES OF COLLABORATION BETWEEN COMPANIES. CORPORATE GROUPS. Forms of collaboration between companies (joint ventures). The economic interest association and European economic interest association. Temporary joint ventures. Economic function and problems of corporate groups. Models for regulation and treatment in Spanish and European Community law. The protection of external partners, creditors and workers in subsidiary companies. Liability regime. Consolidation of accounts.

5. SECURITIES MARKET LAW TOPIC 8. THE FINANCIAL SYSTEM: INTRODUCTION, RULES OF CONDUCT AND STATUTE OF THE PUBLIC COMPANY Financial markets. The securities market and financial instruments market. Sources of securities market law. Supervisory and regulatory institutions. The CNMV (National Commission for the Securities Market) as regulatory entity, supervisor and inspector. The primary and secondary markets. Transparency: the right to market information, full disclosure, communication of relevant facts and obligations regarding periodic information, communication of significant participations. Regulation to prevent market abuse. Internal regulations. The prohibition of insider trading. The prohibition of manipulating share prices. Internal regulations and Chinese walls. The sanctions regime: Criminal Law and the stock market. The public company: idea and legal statute. Shareholder agreements and their publication. Regulation of social entities. The annual report on corporate governance and other obligations covering information. TOPIC 9. THE PRIMARY MARKET Objective area: tangible and territorial delimitation. Forms of access: public offer for subscription, secondary offering, listing. Purpose: privatisations, expanding capital, sale of significant shareholdings. Information requirements for admission to negotiation: the file, its content and responsibility. Suspension and exclusion of negotiation. TOPIC 10. THE SECONDARY MARKET. PUBLIC OFFERS FOR SUBSCRIPTION. Structure of the secondary market and participants. The Spanish securities market. Other secondary markets for financial instruments. Subjects involved: the CNMV, the investor, investment service companies, the investments guarantee fund, brokerage firms, the Spanish Stock Market Interconnection System (SIBE), the securities clearing and settlement service and stock exchange governing bodies. Contracting systems: The auctions market and the continuous market. Market segments: The primary market, the secondary market, Latibex and the Alternative Stock Market (MAB). Takeover bids (OPAS, Oferta Pública de Adquisición in Spanish). Concept and regulation. The Takeover Bids Directive and its incorporation into Spanish Law. Structure: subjective, objective and formal aspects. The principles that inspired their regulation. Types of Takeover Bids. Compensation. Obligatory Takeover Bids: Fair price. Proceedings. Obligations regarding information. Hostile takeover bids, passivity rule and defence and neutralisation mechanisms. Competitive takeover bids. Forced sale-purchase.

6. INSOLVENCY LAW TOPIC 11. SPANISH INSOLVENCY LAW The corporate crisis and its legal treatment. The means of execution: individual execution and collective execution. Function of insolvency law: creditor protection and creditor equality, the par conditio creditorum. Modern evolution: maintenance of the company and protection of other interests. From the insolvency of the entrepreneur to corporate crisis. Historical structure of Spanish insolvency law. Dualism in the treatment of the economic crisis: civil treatment and commercial treatment. Procedural dualism: preventive proceedings and liquidation proceedings. Legislative dispersion. Historical civil proceedings: meeting with creditors and arrangement with creditors. Historical commercial proceedings: insolvency and suspension of payments. Critical judgement. Experiences in comparative law. The reform of Spanish insolvency law: The Organic Law on Insolvency Reform and the Common Insolvency Law of 9th July 2003. The lines of legal policy that inspired the Spanish insolvency law. Insolvency: concept and characteristics. The legal insolvency regulation unit: legal unit, disciplinary unit and system unit. Insolvency. Commercial court judges: nature, creation, provision and competence. Types of insolvency: voluntary and necessary. Incentives for a rapid insolvency petition. Special insolvency regimes. Spanish simplified personal insolvency proceedings and the abbreviated proceedings. Insolvency and corporate groups. General procedural rules for insolvency and appeal systems. The insolvency hearing. Secondary procedural legislation. Rules governing Private International Law: insolvency with a foreign element. TOPIC 12. INSOLVENCY REQUIREMENTS. ENTITIES. Subjective requirement: the universality of insolvency. Objective requirements: insolvency. Current and imminent insolvency. The objective requirement for the corporate debtor. The failure to comply with an agreement as an insolvency requirement. The verification of the objective requirement. The formal requirement: the declaration of insolvency. Proceedings for the declaration of insolvency. The legitimation for an insolvency petition: applications from the debtor, the creditor and any other parties entitled to take action. The duty to apply for the declaration of insolvency. Form of application. Cautionary measures. The debtor's opposition. The notice of commencement: contents, publication and effects. Resources. The entities related to Spanish insolvency law: evolution and criticism. The judicial body: international and territorial competence. The exclusive and exclusionary principle of jurisdiction. The Insolvency Administration: structural characterisation. Staff structure: subjective conditions, incapacities, incompatibilities and prohibitions. Nomination and acceptance. Dismissal. Powers: cases of suspension and intervention. The Insolvency Administration Statute: mode of action, payment and responsibility. The creditors' meeting: function and attributions. Calling of meeting, constitution, deliberation and voting. The minutes of the meeting. The Public Prosecution Service. TOPIC 13. EFFECTS OF INSOLVENCY (I) ON THE DEBTOR, (II) ON THE CREDITORS AND (III) DETERMINATION OF THE AVAILABLE ASSETS Effects of the declaration of insolvency on the debtor. Effects on fundamental rights and liberties: correspondence, residence and freedom of movement. Effects on powers over assets: intervention and suspension. Collaboration and information duties. The principle of continuing the activity: exceptions. Accounting continuity. Maintenance and administration of the available assets. Right to food. Effects on the debtor, where the debtor is a corporate body. Responsibility of the administrators and liquidators of a corporation.Effects on the creditors. Constitution of the liabilities. Definition of the liabilities. The types of credit in insolvency: insolvency credits and credits against the insolvency estate. Insolvency credits: credits with special privilege, credits with general privilege and subordinated credits. The rating of the credits and their consequences. The list of creditors: Effects of the insolvency on individual actions: accumulation of declaratory judgements, arbitration proceedings, enforcement of court orders and penalties and blocking of the execution of collateral guarantees. Wage credit regime. Prohibition of offsetting. Suspension of the accrual of interest. Interruption of the time bar. Effects on contracts pending execution. Available assets: concept and definition. Special cases. Determination of available assets: reintegration and reduction. Recovery of goods: "separatio ex iure dominii" and "separatio ex iure crediti". The regime of acts detrimental to available assets and the suspect period: general regime, irrebuttable or conclusive presumptions ("praesumptio iuris et de iure") and rebuttable presumptions ("praesumptio iuris tantum"). Legitimation and proceedings: effects of the favourable ruling. The inventory. The Insolvency Administration's Report: structure, advertising and contestation. TOPIC 14. WAYS OF RESOLVING INSOLVENCY: AGREEMENT AND LIQUIDATION. EVALUATION, CONCLUSION AND RE-OPENING OF THE INSOLVENCY. The so-called 'system unity': procedural unity and flexibility. The non-judicial and net asset criteria in the Insolvency Law. Dealing with insolvency through an agreement as a non-judicial solution. Types of agreements. Contents of the agreement. Proposal and support: individual support and approval in a meeting. The proposal of an early agreement. The judicial approval of the agreement: opposition. Effects and execution of the agreement. The resolution of insolvency through liquidation as a net-asset solution. Requirements for the opening of liquidation proceedings. Effects. Liquidation and creditor payment operations: the liquidation plan. Evaluation of the insolvency: function and scope. Evaluation requirements. Involuntary insolvency and insolvency due to negligence. Ruling that the insolvency is due to negligence: general rule and specific cases. Presumptions of fraud or gross negligence. Evaluation proceedings: appearance, report and opposition. The insolvency ruling. Effects for the administrators and liquidators of corporate bodies. Causes of the conclusion of the insolvency proceedings. Judicial resolution, resources and advertising. Effects. Re-opening insolvency proceedings.

The course methodology is based on:
a) Lectures on the majority of the topics.
b) The study of a selected number of topics through individual study, group work and class discussions.
c) The completion of practical case studies linked to the course topics.

Consequently, the work to be undertaken by students includes:
a) The study of the topics taught in conjunction with one of the recommended textbooks.
b) The completion of the group work assignments according to the method described in the section 'Group-work'.
c) The completion of practical case studies.
Normally, these case studies will have to be completed but not submitted. The submission of a number of case studies will be requested and prior notice will be given for these. We will devote a session to each practical case study. At the beginning of these sessions there may be a set writing task. All written responses to questions or case studies that are submitted will be assessed. Spoken contributions to the sessions devoted to the completion of the case studies may also be assessed.

Group work
Faculty will organise students into groups of two to complete a writing task (5 to 10 typed A4 pages in length) that offers an argued response to the questionnaire handed out for each assignment. The written assignment should be based on the recommended reading as well as the views and debates generated by each group. The pair will choose a spokesperson for each assignment, and he/she will take the lead in completing the writing task. However, both have to debate the content of the writing task and will have to sign each paper. There will be a different spokesperson for each of the group work assignments so that each student will act as spokesperson once.

The recommended methodology for group work is as follows:

1. The group members divide the readings between them, bearing in mind that they must have all read the section of the textbook corresponding to the topic being studied.
2. A group meeting is held to discuss members' responses to the questionnaire with regard to the completed reading. During the meeting the spokesperson will take notes to prepare the draft of the writing task.
3. The spokesperson writes a draft of the writing task and gives it to the other group members.
4. The group meets again to revise the draft and the spokesperson completes the final draft.

In the presentation session some students (whether spokespersons or not) will be asked to present their conclusions on one or a number of the points addressed in the questionnaire.

Group work assessment:

The mark for the group work assignment will be shared by all group members, however, that mark will be computed twice for the spokesperson. In so doing, the grade will be calculated twice, so that at the end of the course each person will have three marks for the assignments. Assessment of the assignments will be done using a shared number of marks distributed in accordance with the effective contributions made by the group members.

Those asked to make a spoken contribution will be assessed. Failing to participate without a due justification will represent a mark of zero for that assignment.

ASSESSMENT BREAKDOWN

Basic bibliography:
BROSETA PONT, MANUEL
Manual de Derecho Mercantil
Ed. Tecnos. Barcelona, 2013.

SÁNCHEZ CALERO, FERNANDO
Instituciones de Derecho Mercantil
Ed. Mc. Graw Hill, Madrid, 2013, 2 Vols.

URÍA, RODRIGO
Derecho Mercantil
Marcial Pons Ed. Madrid, 2013.

VICENT CHULIÁ, FRANCISCO
Introducción al Derecho Mercantil
Tirant lo Blanch, Valencia, 2013.

Additional bibliography:
URÍA RODRIGO, MENÉNDEZ AURELIO
Curso de Derecho Mercantil
Ed. Civitas. Madrid, 1999, 2 Vols.

URÍA RODRIGO, MENÉNDEZ AURELIO,
Comentario al régimen legal de las sociedades mercantiles
Ed. Civitas. Madrid, 1999, varios vols.

ROJO FERNÁNDEZ-RÍO, ÁNGEL; BELTRÁN, EMILIO
Comentario de la Ley de Sociedades de Capital
Ed. Civitas. Madrid, 2011



Insolvency law:

Alonso Ureba; García Villaverde; Pulgar Ezquerra, J. (ed.): Derecho concursal. Estudio sistemático de la Ley 22/2003 y de la Ley 8/2003 para la Reforma Concursal. Ed. Dilex, Madrid, 2003.
Bercovitz, R. (ed.): Comentarios a la Ley Concursal. Tecnos, Madrid, 2004.
García Cruces; López Sánchez (ed.) La reforma de la Ley Concursal: una primera lectura del Real Decreto-Ley 3/2009. Aranzadi, Pamplona, 2009.
Peinado; Valenzuela (ed.); Jiménez Sánchez (foreword): Estudios de Derecho concursal. Marcial Pons, Madrid, 2007.
Rojo; Beltran (ed.) Comentario a la Ley Concursal. Civitas, Madrid, 2004 (2008 reprint).

LEGAL TEXTS

ALONSO UREBA/ GARCÍA VILLAVERDE/ PULGAR EZQUERRA, J. (ed.):
Derecho concursal. Estudio sistemático de la Ley 22/2003 y de la Ley 8/2003 para la Reforma Concursal
Ed. Dilex, Madrid, 2003.

BERCOVITZ, R. (ed.)
Comentarios a la Ley Concursal
Tecnos, Madrid, 2004.

GARCIA CRUCES/ LOPEZ SANCHEZ (ed.)

La reforma de la Ley Concursal: una primera lectura del Real Decreto-Ley 3/2009
Aranzadi, Pamplona, 2009.

PEINADO/ VALENZUELA (ed.) JIMENEZ SANCHEZ (foreword.)
Estudios de Derecho concursal
Marcial Pons, Madrid, 2007.

ROJO/ BELTRAN (ed.)
Comentario a la Ley Concursal
Civitas, Madrid, 2004 (reimpresión 2008).


GENERAL LAWS
* Spanish Constitution
* Civil Code

COMMERCIAL LAWS

*Commercial Code.
*Real Decreto Legislativo 1/2010, approving the amended text of the Capital Companies Law.
*Ley 3/2009, 3rd April, on structural amendments to commercial companies.
*Ley 24/1988, 28th July, on the Securities Market.
*Ley 22/2003, 9th July, on Insolvency.

CODES OF RECOMMENDATIONS
* Unified Code of Good Governance

Group	Teacher	Department
Ed: 1	Miguel Trías Sagnier	Derecho

Group	Teacher	Department
Ed: 2	Miguel Trías Sagnier	Derecho