Where (Law and) Economics Went Wrong

Reflections of a lawyer upon David Colander and Craig Freedman, Where Economics Went Wrong. Chicago’s Abandonment of Classical Liberalism, Princeton University Press, 2019, xii + 267 p.

In Where Economics Went Wrong. Chicago’s Abandonment of Classical Liberalism David Colander and Craig Freedman argue that economics went wrong when economic policy recommendations were presented as applied science. Policy, according to the authors,

“needs to be drawn from a complicated blend of judgments about ambiguous empirical evidence, normative judgements and sensibilities that may be framed, but are not determined, by scientific theory. Put another way, economic policy is a blend of engineering and judgment – an “art and craft”, not a scientific endeavor that follows from economic theory.” (p. 1 – with “sensibilities” they refer to essential policy considerations and factors that are not easily measured or quantifiable, see p. 163, note 1)

They do not dispute that there is a scientific branch of economics, but an economist should not make policy recommendations with the aura of an economic scientist. Policy decisions are too messy for a crisp scientific methodology and, while they should be informed and illuminated by economic science, they are not determined by it. The “ought” of policy precepts rarely follows directly from the “is” of economic science. Continue reading “Where (Law and) Economics Went Wrong”

Can directors be employees?

Can directors be employees? An array of answers are possible. A director may accept to perform the duties resulting from company law and the statutes of association by entering into eg a management contract, an agency agreement, or an employment contract. The diversity of plausible answers also impacts on EU private international law, as the applicability of the protective rules on jurisdiction in matters relating to employment contracts, contained in Art 18 et seq of the Brussels I Regulation Recast, depends on whether a relationship can be characterised as a ‘matter relating to an individual contract of employment’. At stake are among other things (1) the option of the director to sue the company in the courts of the place where he is domiciled, and (2) whether the company is restricted to pursue its actions against the director in the courts of the director’s domicile.

In his Opinion in C-603/17 EU:C:2019:65 Bosworth ea v Arcadia Petroleum ea, AG Saugmandsgaard Øe clarified the position of directors of a company in respect of the rules of jurisdiction applicable to employment contracts.

Continue reading “Can directors be employees?”

Heremans Lectures in Law & Economics 2019: “The China Puzzle: A framework in understanding Chinese law”

Prof. Dr. Ruoying Chen
(UNSW Business School and Peking University Law School) – KU Leuven – 20 February 2019 at 9 a.m.

Dieter Heremans Lecture Series
in Law and Economics 2019


Prof. Dr. Ruoying Chen

UNSW Business School
Peking University Law School

The opening lecture will be held in at KU Leuven, auditorium Zeger Van Hee (DV1.91.56),
College De Valk, Tiensestraat 41 in Leuven (Belgium) on Wednesday 20 February 2019 at 9 a.m.

The lecture is free but please register here. Continue reading “Heremans Lectures in Law & Economics 2019: “The China Puzzle: A framework in understanding Chinese law””

Always grab the pen?

Badawi, Adam B. and de Fontenay, Elisabeth, Is There a First-Drafter Advantage in M&A? Badawi, Adam B. and de Fontenay, Elisabeth, Is There a First-Drafter Advantage in M&A? Available at SSRN: https://ssrn.com/abstract=3317622

Does the party that provides the first draft of an agreement get better terms as a result? Transactional lawyers tend to argue that by grabbing the pen they get better outcomes for their clients (who incidentally also incur higher laywers’ fees in the process).

But is it true that holding the pen for the first draft of the agreement can give an advantage in the final deal reached? Continue reading “Always grab the pen?”

Plessers: the ECJ on a Killing Spree in the Belgian Insolvency Landscape?

Setting the Boundaries of Articles 3–5 of Council Directive 2001/23/EC in the Aftermath of Smallsteps

Yesterday, Advocate General (AG) Szpunar delivered his opinion in Plessers (C-509/17), a case before the European Court of Justice (ECJ) that concerns the protection of employees in one of the Belgian insolvency proceedings, i.e. the judicial reorganisation by transfer under judicial supervision/gerechtelijke reorganisatie door overdracht onder gerechtelijk gezag (hereinafter referred to as ‘GROG’). If the ECJ follows the interpretation by AG Szpunar of Articles 3-5 of Council Directive 2001/23/EC (hereinafter the ‘Directive’), the referring court would have almost no other option than to rule that Article 61(3) WCO (now: Article XX.86, §3 WER) violates the Directive.



On 23 April 2012, NV Echo entered into a judicial reorganisation by way of collective agreement. However, a collective agreement could not be reached, and on 19 February 2013, the judicial reorganisation proceeding was transformed into a GROG. On 22 April 2013, NV Prefaco took over the business of NV Echo together with two-thirds of the total employees of the transferor.

Plessers, who was one of the dismissed employees, argued (among other things) that Article 61(3) WCO violates the Directive. Continue reading “Plessers: the ECJ on a Killing Spree in the Belgian Insolvency Landscape?”

Een terugblik op 2018

De posts die in 2018 het meest werden gelezen zijn:

Nog geen megahits, maar voor de meerwaardezoekers: Continue reading “Een terugblik op 2018”

Agreement on a new approach to business insolvency in Europe

Yesterday, a political agreement was reached by the European Parliament and EU Member States on a set of European rules on business insolvency. The text must now be formally adopted by the European Parliament and the Council of the EU. Following final adoption, the Directive will be published in the EU’s Official Journal and enter into force 20 days later. Continue reading “Agreement on a new approach to business insolvency in Europe”