Opportunity Makes a Thief: Corporate Opportunities as Legal Transplant and Convergence in Corporate Law

62 Pages Posted: 22 Nov 2017 Last revised: 5 Dec 2017

See all articles by Martin Gelter

Martin Gelter

Fordham University School of Law; European Corporate Governance Institute (ECGI)

Genevieve Helleringer

University of Oxford - Institute of European and Comparative Law; ESSEC Business School; European Corporate Governance Institute (ECGI)

Date Written: November 2017

Abstract

The paper surveys the corporate opportunities doctrine in four jurisdictions: the US, the UK, Germany, and France. Our analysis enables us to trace the development of the doctrine, exposing the way in which certain models of dealing with a particular issue have arisen, and how these models have then spread. Fiduciary duties are often today held out as typical instruments of shareholder protection in the US and the UK, both of which are often held out as model jurisdictions in corporate governance internationally. However, fiduciary duties in these two jurisdictions often operate in strikingly different ways. While the US relies on an open-ended standard, the UK corporate opportunities doctrine effectively constitutes a rule.

We explore the transplantation of the corporate opportunities doctrine, largely based on the US model, to France and Germany. In Germany, the law historically prohibited officers of the corporation from engaging in competing business activities; the statutory prohibition applied to some but not all corporate opportunities, and also left open some space for the corporate opportunity doctrine to move into. The German version of the doctrine developed gradually over the past fifty years and owes its adoption to a number of academics who studied US law and reinterpreted a number of cases – where it was clear that an officer had violated his duties to the corporation – in light of the newly discovered doctrine. By contrast, it was not until late 2011 that French courts recognized for the first time that a director may not appropriate a corporate opportunity. Until then, self-dealing issues were dealt with under a statutory provision enacted in 1867 merely requiring corporate approval for conflicted transactions, not including corporate opportunities. As the core thesis of the paper, we show that there is a considerable degree of convergence relating to the corporate opportunities doctrine, which has radiated primarily from US law to the two civil law jurisdictions. Overall, we can thus identify an “export” of the US model, possibly signaling some convergence in corporate law. The paper compares the treatment of corporate opportunities problem in all four jurisdictions, explores why the US example may have been more attractive as a transplant than the UK model, and discusses possible implications for transplant theory and the debate about convergence in corporate governance.

Keywords: Delaware, Guth v. Loft, Broz v. Cellular, Conflict Avoidance, Convergence, Bhullar v. Bhullar, Foss v. Harbottle, Fairness Test, Geschäftschancenlehre, Fiduciary Duties, Directors, Controlling Shareholders, Legal Transplants

JEL Classification: G34, K22, K41

Suggested Citation

Gelter, Martin and Helleringer, Genevieve, Opportunity Makes a Thief: Corporate Opportunities as Legal Transplant and Convergence in Corporate Law (November 2017). Berkeley Business Law Journal, Vol. 14, No. 2, Forthcoming; Fordham Law Legal Studies Research Paper No. 3074537; European Corporate Governance Institute (ECGI) - Law Working Paper No. 378/2017. Available at SSRN: https://ssrn.com/abstract=3074537

Martin Gelter (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
646-312-8752 (Phone)

HOME PAGE: http://www.fordham.edu/info/23135/martin_gelter

European Corporate Governance Institute (ECGI)

HOME PAGE: http://ecgi.global/users/martin-gelter

Genevieve Helleringer

University of Oxford - Institute of European and Comparative Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

ESSEC Business School ( email )

3 Avenue Bernard Hirsch
CS 50105 CERGY
CERGY, CERGY PONTOISE CEDEX 95021
France

European Corporate Governance Institute (ECGI) ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

Register to save articles to
your library

Register

Paper statistics

Downloads
189
Abstract Views
851
rank
160,142
PlumX Metrics