Category Archives: Business Organisation
Kwan Yiu Cheng, ‘The legal structure of decentralised autonomous organisations (DAOs): governance, legal personality and liability’
ABSTRACT The article considers the legal structure of decentralised autonomous organisations (DAOs). DAOs leverage smart contracts to encode their management and operational rules onto the blockchain with a vision to enable autonomous operation without a centralised authority. The novel nature of DAOs presents legal challenges and opportunities that are yet to be addressed in existing […]
Alessandra Daccò, ‘Fortunes and misfortunes of categories of shares’
ABSTRACT The creation of shares with different rights responds traditionally and historically to specific and cyclical financing needs of joint stock companies. In particular, special categories of shares seem to take on an important role both in raising new risk capital and as a governance tool: they can thus be effectively used to consolidate ownership […]
John Land, ‘Company Contracting in New Zealand after Autumn Tree’
ABSTRACT This article examines the decision of the New Zealand Court of Appeal in Bishop Warden Property Holdings Ltd v Autumn Tree Ltd. The Autumn Tree case reaffirms the danger of relying on the ability of one director (on a board of more than one) to contract on behalf of a company. The decision also […]
Robert Rhee, ‘A Theory of Calibrated Fiduciary Duties in Firms’
ABSTRACT Although the laws of firms state the same traditional duty of loyalty, they diverge in expressing the duty of care and the concept of good faith. The differences are not subtle shades of refinement, but quantum contrasts of discrete legal states. The law shuffles, reclassifies, and relocates core elements of the duty of care […]
Michelle Gordon, ‘Corporate Governance: Big Ideas and Debates?’
ABSTRACT Traditional conceptions of corporate governance are being challenged by recent events and debates in and outside Australia. Developments such as the Business Roundtable’s 2019 restatement of corporate purpose, the World Economic Forum’s Davos Manifesto as well as the ways in which companies and their directors are expected to identify, supervise, manage, and disclose environmental, […]
Vincent Goding, ‘Directors’ Duties, CSR and the Jobkeeper Wage Subsidy Scheme’
ABSTRACT This article contributes to the ongoing debate regarding the construction of directors’ duties to act in the best interests of the corporation and their relationship to corporate social responsibility (‘CSR’) and related concepts. It begins by revisiting the neoliberal ideas underpinning the nexus of contracts theory of the corporation as the root of shareholder […]
Hayden and Bodie, ‘The Problem of Purpose in Corporate Law’
ABSTRACT For the last half century, shareholder primacy has reigned as the dominant definition of corporate purpose, as to both the purpose of individual companies and corporate law more generally. Recently, however, the Business Roundtable, the American Law Institute’s Restatement of the Law: Corporate Governance, and many business and legal academics have developed new answers […]
Franklin Gevurtz, ‘Do Courts Get It Right When Piercing The Corporate Veil? An Empirical Study’
ABSTRACT This article presents the results of a unique empirical study addressing whether courts achieve rational outcomes when piercing the corporate veil. The study examined a set of over 300 court decisions upholding piercing claims in the last almost four years. It asked whether the courts in these cases could rationally have found either deception […]
Duncan Wallace, ‘The Reality of Shareholder Ownership: For-profit Corporations as Slaves’
ABSTRACT What is the relationship between shareholders and the corporation? The present scholarly consensus is that, whatever the relationship is, it is not one of owner and owned. This article contests that consensus. It argues that corporations are owned by their shareholders and, further, that corporations so-owned are slaves. In support of this contention, the […]
Itai Fiegenbaum, ‘Caremark’s Fractured State’
ABSTRACT The term ‘Caremark duties’ serves as an accepted shorthand for a director’s proactive obligation to establish a corporate monitoring system and then oversee its continued effectiveness. The Caremark doctrine has evolved significantly over time. From its origins as part of the exculpable duty of care to its current status as part of the non-exculpable […]