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Article
Bargaining for Compensation in the Shadow of regulatory Giving: the Case of Split Share Structure Reform in China
Columbia Journal of Asian Law (2006)
  • Wallace Wen-Yeu Wang
  • Jianlin Chen
Abstract

This article is about the legal and economic analysis of the Chinese split share structure reform. Under the legal analysis, we show that traditional approaches in private and public law fail to provide a valid legal basis for requiring non-tradable shareholders to compensate tradable shareholders for the right to trade. Even the more developed US regulatory takings jurisprudence would not provide the tradable shareholders with a right to compensation for the loss they suffered from the trading of non-tradable shares. This is where we turn to the new givings jurisprudence recently developed in the US. Mirroring takings jurisprudence that focuses on identifying which diminution/deprivation of property caused by the government must be compensated, givings jurisprudence seeks to determine under what circumstances do the beneficiaries of government actions must be charged for the benefit received. We argue for its merits and application to our Chinese scenario to provide a legal basis for reform. We then utilize economic analysis to evaluate the Chinese implemented reform. This helps us in identifying the significant reform risks and enables us to propose some recommendations. More importantly, we are able to discern invaluable practical lessons and useful pointers from the Chinese implemented reform that are highly relevant in the future developments and applications of the givings jurisprudence.

Keywords
  • Split-Share Structure,
  • China,
  • Givings
Disciplines
Publication Date
2006
Publisher Statement
Originally published in 20 Columbia Journal Asian Law 298 (2006) Version from Westlaw
Citation Information
Wallace Wen-Yeu Wang and Jianlin Chen, Bargaining for Compensation in the Shadow of regulatory Giving: the Case of Split Share Structure Reform in China, 20 Colum. J. Asian L. 298 (2006). Available at: http://works.bepress.com/jianlin_chen/4