Tres notas sobre la importancia del nivel de desarrollo económico para la elección de las reglas jurídicas

Cuando el Gobierno es, a la vez, el vendedor en Bolsa (Pettis)

A dramatic example of the impact of government behavior on value investing was China Telecom’s initial public stock offering in November, 2002.  The offering was scheduled to come out at a time of weak international demand, and there was some concern that it might not be as successful as hoped.  Because the meeting of the 16th Party Congress was taking place in Beijing during that time, a successful transaction would have helped validate government policies and a failure would have been seen as a loss of face.  In an attempt to bolster demand the Chinese government pushed through a large and unexpected increase in international interconnection fees, which would result in higher profits for the company.

Instead of boosting demand for the stock, however, this actually had the effect of reducing demand.  The deal, originally expected to raise over $3 billion, ended up raising only $1.4 billion, even after being priced at the bottom of the expected price range. 

Why was the deal a failure?  Much of it had to do, of course, with weak global markets, but the final sudden drop in demand came about largely because by its actions the government made it clear that they would allow non-economic factors to affect the company’s profitability.  Value investors, who dominate the large international markets and who would have been the main buyers of China Telecom, felt that their ability to judge the company’s future cashflows had suddenly been damaged.  They saw that the company’s profitability depended not just on economic factors, which they are able to judge, but also importantly on political factors, which they cannot.  As a consequence they raised their discount rate – that is, they lowered the price at which they were willing to buy shares

El derecho de suscripción preferente es un signo de mercados poco desarrollados (Dam)

Whatever the pros and cons of the default-term approach, it seems obvious that preemptive rights have a smaller role in countries where there is a vigorous market for new stock issues among widely dispersed shareholders, compared with countries with primarily concentrated share ownership. In the absence of a vigorous market for new issues, preemptive rights reflect in part an assumption that new equity capital for an existing corporation will most usually have to come from existing shareholders. Preemptive rights also are a recognition that where share ownership is concentrated, the relative position of such owners is a major issue. In the absence of preemptive rights, a controlling shareholder could, for example, gradually squeeze out or otherwise disadvantage existing minority shareholders, including those who had major stakes but who, in the absence of a liquid stock market for the company, had little prospect of selling those stakes to anyone other than the controlling shareholder. Thus, the use of preemptive rights is a sign of a weak, not a strong, market for corporate equities.

Ventajas de las rules – reglas - versus standard – principios, cláusulas generales - en países pobres (Posner)

The relative simplicity of rules has two consequences for the kind of weak judiciary one is apt to find in a poor country. The first is that the application of rules places fewer demands on the time and the competence of the judges and is therefore both cheaper and more likely to be accurate. The accuracy is a little illusory, because it is a property of governance by rules that they never quite fit the complex reality that they govern. But this observation is consistent with their being more efficient than standards if administered by a judiciary that has a limited capability for the kind of nuanced and flexible decisionmaking that standards require. Second, rules facilitate monitoring of the judges and so reduce the likelihood of bribery and the influence of politics in the judicial process. The less discretion a judge has in making decisions, the easier it will be to determine whether a case has been decided contrary to law or whether there is a pattern of favoring one class or group of litigants over another.