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.