Corporate Law, Private Law and Instrumentalism
Lloyd’s Maritime and Commercial Law Quarterly, 541-574, 2015
58 Pages Posted: 9 Jan 2016 Last revised: 5 Apr 2016
Date Written: May 1, 2015
This article seeks to enrich our understanding of corporate law and private law. Deploying insights from the rights-based analysis in private law, this article argues that corporate law, in its instrumentalist conception, is unable to properly account for a defining feature of private law disputes, its bipolar structure consisting of the correlative and personality elements. Through a critical examination of certain corporate law cases, this article shows that the rejection of instrumentalist considerations by the rights-based thesis is unwarranted; it demonstrates how judges in private law disputes can accommodate instrumentalist considerations in a structured, coherent and restrained fashion.
Keywords: Corporate law; private law; instrumentalism; rights
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