Corporate Mobility and Company Law

Globalisation has given commercial parties more freedom to choose the company law system that best suits their private needs. The growing range of techniques to facilitate choice between systems of company law reshapes the mandatory/enabling debate in countries where corporate mobility is a relatively new business phenomenon and where the past focus has mostly been on degrees of flexibility within domestic law. This article examines relocations, both out of and into the UK, as a source of learning on market preferences with respect to company law and on vulnerabilities. It considers the wider policy implications for the development of company law of more freedom of choice between company law systems. It concludes with a call to explore the potential for more optionality within company law to counter the rise of choice between systems of company law.     

Nonfinancial Risk Disclosure and the Costs of Private Ordering

In 2016 the Securities and Exchange Commission (SEC) considered for the first time whether financial disclosure reform should address information on sustainability matters and other sources of nonfinancial risk. The resulting debate over these issues raised fundamental questions about how well the federal disclosure regime addresses emerging risks and about how well private ordering, through shareholder engagement, the work of private standard‐setters, and corporate voluntary disclosure, can fill the gaps. This article argues that the current model of nonfinancial risk disclosure, based largely on private ordering, is ineffective and undermines the SEC's mission to protect investors, facilitate capital formation, and promote fair, orderly, and efficient markets. This conclusion rests on evidence that the current state of sustainability disclosure is inadequate for investment analysis and that these deficiencies are largely problems of comparability and quality that cannot readily be addressed by private ordering. This article also highlights the costs of agency inaction to investors and to public companies, which have been largely ignored in the debate over the future of financial reporting. It concludes by proposing avenues for disclosure reform.     

Law,ideology and social change: An analysis of the role of law in the construction of corporate crime

This paper explores recent efforts to theorize the potential of law as an agency for progressive social change in the context of the debate over corporate crime. Drawing on feminist experience with criminal law reform in the area of domestic violence, the author argues that the strategy of criminalizing corporate violations needs to be problematized, and that attention should also be focussed on exploring other avenues for progressive legal and political struggles aimed at the control of corporate crime.     

重思“特拉华迷思”——兼与傅穹教授商榷

在美国州际吸引公司注册的竞争中,特拉华州胜出,学界对此提出不同派别的猜想。特拉华州公司法偏向管理层而牺牲股东的利益还是偏向股东,目前尚无定论。特拉华的成功,很可能不仅仅在于其立法的先进,独特的司法体系和政治文化背景也在其中发挥了重要的作用。更重要的是超越特拉华成功的更深层次的问题：对公司注册有吸引力的公司法是否等同于有效率的公司法。     

Legal Advice Privilege and its Relevance to Corporations

This article considers whether the rationale for legal advice privilege applies to corporations. It examines the rationale for legal advice privilege in the aftermath of the disagreement between the Court of Appeal and the House of Lords in the Three Rivers litigation, and argues that the rule of law rationale for advice privilege endorsed by the House of Lords is based largely on the needs and behavior of individuals. The paper examines the case for recognising advice privilege for corporations. Recent developments in corporate law and governance, especially in relation to directors' duties, have arguably reduced the need for a corporate privilege. Public and large private companies in particular already have sufficient incentives to obtain accurate legal advice about their affairs even without a privilege. There are also sound policy reasons for restricting the right of corporations to claim legal advice privilege given its costs to the administration of justice.     

Three Principles of Transnational Corporate Bankruptcy Law: A Review

Abstract: After having discussed the weaknesses of the universalist and territorialist approaches to transnational corporate bankruptcy law, this article argues that a free‐choice régime could combine the advantage of ex post value maximisation of the firm's assets with a comparatively higher degree of ex ante predictability to investors. In addition, it could lead to a better alignment between corporate ownership structures and corporate bankruptcy régimes. Moreover, a free‐choice régime could potentially open the door for regulatory competition in corporate bankruptcy law. However, EC Regulation 1346/00 on insolvency proceedings implements a system of modified universalism, which allows for strategic ex post forum shopping by debtors while keeping the national legislatures’ monopoly in the field of corporate bankruptcy in place. It is suggested that even though it cannot be predicted that a free‐choice régime will pressure state lawmakers to improve their corporate bankruptcy laws, a system of free choice could redirect the law‐making agenda in the EU by focusing the coordination efforts of lawmakers on those issues—such as security interests in property and statutory priority rights—which could negatively affect the proper functioning of the Internal Market, while enabling Member States to customise corporate bankruptcy laws to local preferences and needs.     

属人法的新发展——当事人所在地法

国际私法中属人法的最新发展动向表现为国籍将逐步淡出冲突规范的连接因素，住所连接因素的适用范围也在缩小。一个主要强调客观存在地的连接因素——“当事人所在地”开始出现在冲突规范的最新国际立法中，在有关跨国商事法律关系的法律选择适用中呈扩大化趋势。这样，“惯常居所”替代住所成为在有关自然人的身份、能力等普通民事法律关系领域的主要连接点，而“当事人所在地”将替代“注册登记地”、“营业地”以及“管理中心地”等在商事法律关系中发挥主要连接作用。     

The contribution of EU public procurement law to corporate social responsibility

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.     

论萨维尼法人代理说的政治旨趣和知识谱系

代理说将法人团体视为一个需要他人监护的法律残废,法人代表者是法人的监护人,代表者的人格与法人人格相互独立、相互平行,代表者直接承担国家法上的侵权和刑事责任,法人的终极监护权掌握在国家手中。从私法角度论,代理说的真正基础是法定代理。从政治旨趣上说,萨维尼的代理说建立于其对社团自治的悲观和拒斥态度之上,是其全能国家观念的体现,是当时德国诸侯割据政治的曲折反映。就知识谱系而言,代理说与当时流行的政治观念息息相通,它们的灵感来源都是罗马家父制。     

Private Security: Enforcing Corporate Security Policy Using Private Investigators

This article focuses on the use of private investigators as external agents, commissioned to enforce internal corporate security policy. After describing the sorts of services private investigators provide to industry and commerce and the legal contexts within which they operate, it considers private investigators as a form of secret police within private justice systems defined by companies. It considers the relationship between notions of public good and commercial expediency and raises important questions about the problem of controlling activities which are purposefully kept from legal scrutiny.     

法律选择之抉择:国家利益与个人利益

法律选择是国际私法中解决法律冲突的特有方法。为了克服传统法律选择方法的弊端,法学家们提出了一系列新的法律选择方法。这些方法可以归纳为根据国家利益进行法律选择和根据当事人利益进行法律选择两类。当代国际私法的发展要求在法律适用问题上平衡当事人利益和国家利益乃至整个国际社会的利益,我国的国际私法立法应顺应这一时代潮流。     

The Proposed ‘Common European Sales Law’: Legal Framework and the Agreement of the Parties

The European Commission's Proposal for a Regulation on a Common European Sales Law (‘CESL’) seeks to create a European scheme of contract law available for parties to choose to govern cross‐border contracts for the sale of goods, supply of ‘digital content,’ and for the supply of related services. This article explains the background to the Proposal, sketches out the purposes and scope of the CESL, and considers and criticises its legal framework (and in particular its relationship with private international law) and the key requirement of the parties’ agreement. In the author's view, the CESL scheme remains an unconvincing basis for the achievement of its economic purposes and, as regards consumer contracts, puts too much reliance on the agreement of the consumer as a justification for the loss of their existing protection under EU private international law rules.     

A European Legal Method? On European Private Law and Scientific Method

This article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi-level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations.     

国际私法的法典化进程

当我国正在紧锣密鼓地起草和制定国际私法法典时,借鉴先进的立法经验是必要的。总结已有的立法经验,在国际私法的立法过程中,需要把握好一些最为基本、最为重要的问题,其中,辨析传统与现代理论的发展趋向、坚持保护私人利益原则和实现法律适用的确定性、稳定性和可预测性、协调冲突正义和实质正义等对立价值、选取使用管辖权选择规则与内容或结果为导向的法律规则和如何保证法律选择争议的正当解决就是一些核心内容,这最终决定了立法的基本体系和具体内容。     

Socially Responsible Private Regulation: World‐Culture or World‐Capitalism?

This article analyzes the phenomenon of “corporate social responsibility” (CSR; specifically: social private regulation) in light of two sociological paradigms of globalization: “world‐culture” and “world‐capitalism.” The study treats three analytically distinct features of CSR: the political contestation over its meaning, the role of business studies in transforming it into a managerial model, and its consolidation as a market of authorities. The study finds that (1) while CSR may be theorized as a emergent “world cultural” model, the culture paradigm does not take sufficient account of the role of corporations in shaping it, and (2) while both paradigms recognize the transition from political contestations over the character of CSR to its deployment by means of private regulation, the world‐capitalism paradigm offers stronger tools for theorizing the mechanisms of change that mediate between political agency and institutionalized regulatory outcomes.     

A Shift in Focus: Systematisation in European Private Law through EU Law

The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi‐level European legal order. With the realisation that private law is and will remain complementary regulated at EU level and in national laws, a re‐orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re‐orientation is needed in relation to substance, process, instruments and enforcement; a more fundamental question needs to be addressed, however, in order to ensure coherence in the development of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.     

Lost in Translation: Corporate Opportunities in Comparative Perspective

The corporate opportunities doctrine in the United States playsa pivotal role in the contemporary debate about whether Englishlaw’s regulation of when a director can personally exploitan opportunity encountered whilst a director should be moreflexible than it is perceived to be. This article argues thatthis comparative encounter has produced partial and misleadingaccounts of US state corporate law and English law. The articlesubmits three reasons for this. First, English scholarship hasnot taken full account of the institutional context of regulatorycompetition for incorporations within which corporate law inthe United States is produced. This institutional context raisesconcerns about the influence of managerial interests on opportunitiesregulation in the US and raises questions about how an opportunitiesdoctrine could evolve differently in the UK absent the pressuresof regulatory competition. Second, scholars who praise US approachesto the corporate opportunities doctrine as a modern model ofreform allow an idea about the American economy in the late20th century to get in the way of a thorough consideration ofthe purported economic benefits of more flexible regulation.Third, the effect of jurisdictional juxtaposition or contrastleaves a strict, certain impression of English law that brushesover its flexible tensions and ambiguities.     

The law and economics of supranationalism: the European Union and the subsidiarity principle in collective action perspective

This article, prepared for an issue devoted to the work of Judge Richard A. Posner, considers the implications of law and economics for the structure of supranational organizations, with particular attention to the application of collective action theory to the relationships among states in the EU. After discussing the connections between this approach and Judge Posner’s work, the article describes collective action theory and its implications for our understanding of the state and of relationships among states. From this perspective, supranational organizations such as the EU can be understood as institutional structures that facilitate collective action among states by reducing the transactions and enforcement costs of making and implementing collective decisions. At the same time, the delegation of authority to supranational institutions creates agency costs for states and their peoples because the interests of the state and its people diverge from the interests of the collective in some instances. Viewed in this perspective, the institutional structure of the EU—like that of other supranational organizations or federal nation states—reflects an effort to strike a balance between collective decision making and local control so as to maximize the collective gains and minimize the resulting agency costs. Understood in these terms, various features of the EU’s institutional design make sense. The ordinary legislative process permits the EU to act without the unanimous consent of member states, thus reducing transactions costs in those areas where collective action is necessary, particularly in relation to the creation and regulation of the internal market. The EU reduces enforcement costs through principles of direct applicability or effects and the supremacy of EU law, which are effective legal restraints in states governed by the rule of law. The institutional structure of the EU also incorporates a representative and deliberative process for collective action that helps control the resulting agency costs for member states and their peoples through supermajority and co-decisional requirements. The collective action perspective also illuminates the function of the subsidiarity principle and the enhanced role of national parliaments in its enforcement.     

The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration

The traditional partition between public and private law continues to reinforce the belief that public law is the only proper realm of political debate, where decisions having redistributional consequences are and should be taken. This allows for a seemingly minor role of private law in the debate on European integration. This article challenges such a traditional image by noticing the central role of private law in the several legal systems of the European Union, and by analysing a few instances of resistance to private law integration. The analysis suggests that, while fully engaged in debating the public law implications of integration, Member States strive to keep civil adjudication within their control and to protect the self–contained, autonomous structure of their codes (or sets of private law doctrines) from the disruptive impact of European legislation. Integrationist pressures compel national legal actors to make explicit the social and economic choices underlying private law rules. Against such pressures, States' resistance may take the shape of formalist entrenchment.