Toward a Relational Corporate Law

2018 ◽  
Author(s):  
Abraham A. Singer
Keyword(s):  
20Th Century ◽  
Limited Liability ◽  
Normative Theory ◽  
Corporate Law ◽  
Fiduciary Duty ◽  
Relational Approach ◽  
Governance Theory ◽  
The Law ◽  
Corporate Personality ◽  
At Will

This chapter begins the presentation of a normative theory of the corporation, assessing corporate law in light of the argument in Part II. It argues that the relational approach to law, developed and pioneered by 20th-century feminist political and legal theorists, has a natural affinity with the norm-governance approach developed in previous chapters. While not always explicitly dealing with the specific questions that this book is concerned with, the framework and method of analysis that these scholars have developed for other branches of the law are useful for drawing out the implications of the norm-governance theory for questions of corporate law. Drawing on this tradition, this chapter sketches out what a relational approach to corporate law and business entails, the types of concerns it can help register, and some of the consequences this approach has for how firms and corporations are, and ought to be, structured. This includes a novel way of understanding corporate personality, fiduciary duty, limited liability, and at-will employment.

scholarly journals Supreme Court Restates Directors' Fiduciary Duty - A Comment on Peoples Department Stores v. Wise

2020 ◽  
pp. 383-405
Author(s):  
Darcy L. MacPherson
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Corporate Law ◽  
Fiduciary Duty ◽  
Best Interests ◽  
Large Element ◽  
Supreme Court Of Canada ◽  
Department Stores ◽  
Shareholder Primacy ◽  
The Law

This article considers the implications of the recent Supreme Court of Canada decision in Peoples Department Stores v. Wise for the law of directors' fiduciary duties. The Court’s decision is attacked on two grounds. First, the author criticizes the Court’s interpretation and treatment of the phrase "the best interests of the corporation" as found in the Canada Business Corporations Act. It is argued that the decision in Wise rejects the traditional interpretation of this phrase which was previously accepted to mean "the best interests of the shareholders collectively. " This rejection raises the spectre of the debate between the "shareholder primacy " model of directors' duties and broader "pluralist" alternatives. By undercutting the lynchpin of the "shareholder primacy" model, the author suggests that the Court has left a vacuum in the law because the Court failed to outline what is to replace this traditional interpretation, or even to acknowledge the substantive change being made. At the level of process, it is equally suggested that the revision of important principles in corporate law exclusively through the judiciary is fundamentally undesirable, where the law of directors' duties has such a large element of public policy attached to it. The author also proposes that the decision in Wise has resulted in an unacceptable level of uncertainty in the law, and that this uncertainty was neither necessary nor advisable to resolve the case before the Court. Second, the author criticizes the Court's comments indicating that a breach of fiduciary duty requires mala fides on the part of directors. It is argued that this is inconsistent with pre-existing case law.

Risky Business: Enterprise Liability, Corporate Groups and Torts

2017 ◽  
Vol 8 (1) ◽  
pp. 54-77
Author(s):  
Glen Wright
Keyword(s):  
Common Law ◽  
Limited Liability ◽  
Corporate Law ◽  
Business Enterprise ◽  
Corporate Groups ◽  
Corporate Group ◽  
High Profile ◽  
Modern Era ◽  
Risky Business ◽  
Corporate Personality

AbstractCorporate personality and limited liability have been the foundations of corporate law for most of its modern history. While these concepts greatly contributed to the early development of corporations, their application in the modern era is outmoded. Nowhere is this clearer than in ‘risky business’ scenarios, where a subsidiary is constituted for the purpose of shielding the corporate group as a whole from tortious liability arising from risky or dangerous activities. Tort victims generally must rely on ineffective and inconsistent common law and tort law doctrines in order to seek redress for torts committed against them, and a number of high profile cases have highlighted the flaws in such approaches. Many corporate law and tort scholars have commented on these flaws and a literature has developed proposing rational alternatives. This paper presents the case for adopting ‘enterprise liability’ in risky business situations, that is, treating the companies within a corporate group as one unified enterprise for the purposes of compensating tort victims.

Criminal Liability of Corporations in Nigeria: A Current Perspective

1994 ◽  
Vol 38 (1) ◽  
pp. 35-45
Author(s):  
Chijioke Okoli
Keyword(s):  
White Collar Crime ◽  
Criminal Liability ◽  
Limited Liability ◽  
White Collar ◽  
Business Community ◽  
Current Perspective ◽  
Recent Origin ◽  
The Law ◽  
Corporate Criminal Liability ◽  
Corporate Personality

The criminal liability of corporations in Nigeria is an often neglected or forgotten aspect of the law, even in many of those cases where its consideration is ordinarily required. The reason for this anomaly is essentially two-fold. Firstly, the concept of distinct corporate personality remains a fiction to most Nigerians. At least in practical terms, even lawyers and members of the business community do not readily conceive the concept as going so far as a limited liability company being criminally liable. And as a matter of fact, the emphatic judicial affirmation of the concept is of relatively recent origin. Even then, the leading Nigerian text on criminal law states that its “exact extent is a matter of some doubt” and “await[s] clear definition”. The second reason is that those crimes for which corporations are most likely to be liable, in the main, are necessarily white-collar in nature. It is a self-evident fact that the attitude of organs of the state to the prevention and prosecution of white-collar offences is generally lukewarm. The pervasive corruption of the Nigerian society, a veritable point of agreement amongst analysts of diverse persuasions and disciplines, is to a considerable extent both the offspring as well as a manifestation of this cavalier attitude to white-collar crime. The result has been the danger of the law on corporate criminal liability falling into desuetude.

MENGENAL DOKTRIN DAN PRINSIP PIERCING THE CORPORATE VEIL DALAM HUKUM PERUSAHAAN

2018 ◽  
Vol 1 (2) ◽  
pp. 380-399
Author(s):  
Sandra Dewi
Keyword(s):  
Legal Status ◽  
Limited Liability ◽  
Corporate Law ◽  
Company Law ◽  
Fiduciary Duty ◽  
Legal Form ◽  
Business World ◽  
Company Directors ◽  
Piercing The Corporate Veil ◽  
Business Entities

Business entities in the business world are well-known that are already in the form of companies or those that are not yet companies. Based on its legal form, the company is divided into two, namely companies with legal status and those that are not legal entities. As an independent legal entity pursuant to Article 3 paragraph (1) the Limited Liability Company Law stipulates that the responsibility of PT shareholders is limited to the value of shares held in the company. Economically, the element of limited liability of the company's shareholders is an important factor as a motivating bait for the willingness of prospective investors to invest in the company. The formulation of the problem in this paper is: 1) how the piercing doctrine of the corporate veil in corporate law and 2) how to apply the principle of piercing the corporate veil in Indonesia. The type of writing used in this writing is a type of normative legal research. The doctrine of piercing the corporate veil in corporate law can be seen from: a) piercing the corporrate veil; b) the doctrine of fiduciary duty; c) self dealing transaction doctrine; d) doctrine corporate opportunity; e) doctrine businnes judgment rule; f) ultra vires and intra vires. Application of the Piercing Principles of the Corporate Veil in Indonesia: a) company shareholders; b) company founder; c) company directors; and d) commissioners of limited liability companies.

Fiduciary Law, Good Faith, and Publicness

2019 ◽  
pp. 762-779
Author(s):  
Hillary A. Sale
Keyword(s):  
Case Law ◽  
Corporate Law ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Red Flags ◽  
Corporate Development ◽  
Duty Of Loyalty ◽  
Trust Law

This chapter uses corporate law as a case study to evaluate the content of the fiduciary duty of good faith. Tracing its development from Van Gorkom through to the present, the chapter shows how good faith, though part of the duty of loyalty, has become a gap filler, policing the space between generally exculpated breaches of care and the more obvious breaches of loyalty. This chapter also surveys good faith case law to show the most common “red flags” for which corporate officers and directors should be monitoring. An analysis of two of the most recent good faith cases—City of Birmingham and In re Wells Fargo—show how the theory of publicness can be used to predict future good faith developments. Finally, the chapter ends by showing that the duty of good faith’s expansion into trust law parallels its corporate development by emphasizing its gap-filler function.

Fiduciary Principles in Corporate Law

2019 ◽  
pp. 60-78
Author(s):  
Julian Velasco
Keyword(s):  
Voting Rights ◽  
Corporate Law ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Profit Motive ◽  
Fiduciary Duties ◽  
Common Misconception ◽  
Strict Enforcement ◽  
Default Rules ◽  
Moral Requirements

This chapter examines fiduciary duty in corporate law. Fiduciary duty is pervasive as well as all encompassing in corporate law. One common misconception about fiduciary duty in corporate law is that it is merely aspirational. Fiduciary duties are not simply moral requirements, they are legal ones. They are not merely suggestions, they represent the demands of the law. Although corporate law has often compromised rather than insisting upon strict enforcement of fiduciary law principles, these compromises are due to practical considerations that are entirely consistent with the goals of fiduciary law. In corporate law, general fiduciary law principles are balanced with practical considerations concerning the profit motive in order to achieve the best overall result for the shareholders. Understanding this tension between ambition and practicality is key to understanding fiduciary duty in corporate law. This chapter first considers the triggers for fiduciary duty in corporate law before discussing the role that the duty of loyalty plays in corporate law. It then explores the duty of care in corporate law, along with other fiduciary duties such as good faith, takeover situations and contests for control, shareholder voting rights, and the duty to monitor and the duty to disclose. The chapter proceeds by analyzing mandatory and default rules regarding the extent to which fiduciary duties can be waived in corporate law and concludes with an overview of remedies for breach of fiduciary duty.

An Economic and Jurisprudential Genealogy of Corporate Law. By Michael J. Whincop. [Aldershot: Ashgate. 2001. xviii, 222, (Bibliography) 20 and (Index) 5 pp. Hardback £45. ISBN 1–84014–773–3.]

2002 ◽  
Vol 61 (2) ◽  
pp. 463-492
Author(s):  
John Armour
Keyword(s):  
Corporate Law ◽  
Company Law ◽  
Economic Methodology ◽  
Evolutionary Account ◽  
High Profile ◽  
Intuitive Appeal ◽  
History Of ◽  
The Law

Economic analysis has recently gained a high profile in English company law scholarship, not least through its employment by the Law Commissions and its resonance with the Company Law Review. This approach has taught us much about how company law functions in relation to the marketplace. Whincop’s book is, however, the first attempt to use economic methodology not only to explain how the law functions, but also to provide an evolutionary account of why the history of English company law followed the path it did. The result is a thesis that, whilst complex, has a powerful intuitive appeal for those familiar with Victorian company law judgments.

The Law of Limited Liability Partnerships

2021 ◽  
Author(s):  
John Whittaker ◽  
General Editor John Machell
Keyword(s):  
Limited Liability ◽  
The Law
Sign in / Sign up

Export Citation Format

Share Document