Corporate Governance in the Shadow of the State

1. Auflage 2013
ISBN: 978-1-84946-008-8
Verlag: Bloomsbury 3PL

Buch, Englisch, 336 Seiten, Hardback, Format (B × H): 161 mm x 240 mm, Gewicht: 672 g

Over recent decades corporate governance has developed an increasingly high profile in legal scholarship and practice, especially in the US and UK. But despite widespread interest, there remains considerable uncertainty about how exactly corporate governance should be defined and understood. In this important work, Marc Moore critically analyses the core dimensions of corporate governance law in these two countries, seeking to determine the fundamental nature of corporate governance as a subject of legal enquiry. In particular, Moore examines whether Anglo-American corporate governance is most appropriately understood as an aspect of 'private' (facilitative) law, or as a part of 'public' (regulatory) law. In contrast to the dominant contractarian understanding of the subject, which sees corporate governance as an institutional response to investors' market-driven private preferences, this book defines corporate governance as the manifestly public problem of securing the legitimacy - and, in turn, sustainability - of discretionary administrative power within large economic organisations. It emphasises the central importance of formal accountability norms in legitimating corporate managers' continuing possession and exercise of such power, and demonstrates the structural necessity of mandatory public regulation in this regard. In doing so it highlights the significant and conceptually irreducible role of the regulatory state in determining the key contours of the Anglo-American corporate governance framework. The normative effect is to extend the state's acceptable policy-making role in corporate governance, as an essential supplement to private ordering dynamics.

Shortlisted for The Peter Birks Prize for Outstanding Legal Scholarship 2013.

Autoren/Hrsg.

Moore, Marc

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)
• Wirtschaftswissenschaften Betriebswirtschaft Unternehmensorganisation, Corporate Responsibility Unternehmenskultur, Corporate Governance

Inhaltsverzeichnis

1: Introduction

I. What is this Book About?

II. The Plan for the Book

III. Provisos to the Following Discussion

2: Defining Corporate Governance as a Subject of Legal Enquiry

I. The Problem of Corporate-Managerial Power

II. The Structural Imperative of Legitimating Corporate-Managerial Power

III. Why Shareholder Exclusivity?

IV. Summary

3: The Contractarian Paradigm of Corporate Governance Law

I. The Purported 'Privity' of Anglo-American Corporate Law

II. (A Brief) Historical and Intellectual Background to Corporate Contractarianism

III. How Do Contractarians Rationalise the Most Prominent Features of Anglo-American Corporate Governance?

IV. Legitimating Reciprocal Power Imbalance Within the Contractarian Paradigm

V. Summary

4: The Contractual Dimensions of US Corporate Governance Law

I. 'Opt-Out', 'Opt-In', and Reversible-Default Rules

II. Competitive Federalism

III. Judicial Deference to Private Ordering: The Business Judgment Rule

IV. Anti-Takeover Measures

V. Federal Deference to Private Ordering: The Rule 14a-8 Proposal

VI. The US Corporate Board as a Pre-Regulatory Institution

VII. Summary

5: The Contractual Dimensions of UK Corporate Governance Law

I. The Contractual Principle

II. Judicial Deference to Private Ordering

III. The Endogeneity of the British Corporate Board

IV. Market-Invoking Regulation

V. Summary

6: The (Expanding) Regulatory Dimensions of Anglo-American Corporate Governance Law

I. The 'De-Privatisation' of Anglo-American Corporate Governance Law?

II. The Mandatory Nature of Corporate Disclosure Regulation in the United States and United Kingdom

III. The Regulatory Division of Corporate Decision-Making Power in the UK

IV. The Counter-Contractual Nature of the Equitable Fiduciary Principle under Anglo-American Law

V. Summary

7: Rationalising Regulatory State Paternalism within an Expanded Contractarian Paradigm

I. Are Mandatory Rules 'Mandatory' at all?

II. The Acceptable Ambit of State Interventionism in Private Ordering: Negative Externalities and Public Goods

III. The 'Market Mimicking' Rationalisation of Regulatory State Interventionism

IV. The Limitations of the 'Market Mimicking' Rationalisation

V. Expanding the Frontiers of the Contractarian Paradigm

VI. Summary

8: Conclusions

Über Autor(innen)

Moore, Marc
Marc Moore was appointed to the Chair in Corporate/Financial Law at UCL Laws in 2019. Prior to this, he was Reader in Corporate Law and MCL Director at the University of Cambridge, UK.

Marc Moore is Professor of Corporate/Financial Law in the Faculty of Laws, University of College London.