Delaware’s Copycat: Can Delaware Corporate Law Be Emulated?

23 Theoretical Inquiries in Law 1 (2022)

36 Pages Posted: 27 Jan 2022

See all articles by Ido Baum

Ido Baum

Haim Striks Faculty of Law - College of Management

Dov Solomon

College of Law and Business - Ramat Gan Law School

Date Written: January 12, 2022

Abstract

Delaware’s famous corporate law and its highly respected specialized Court of Chancery attract entrepreneurs from all over the world, who choose the small state as their locus of incorporation and litigation forum, and global investors who choose Delaware law as the law governing their corporate investments and mergers and acquisitions (M&A). Other jurisdictions vie with Delaware in regard to these choices. This interjurisdictional competition makes Delaware a significant global norm exporter in the field of corporate law because jurisdictions emulate some of its corporate law. Israel leads the global pack. For two decades, it has been approximating its corporate law to Delaware’s and emulating its principal institutions, including by establishing a specialized Chancery-like court whose judges seek guidance in Delaware’s case law in deciding open corporate law questions.

This Article employs qualitative methods—interviews with M&A practitioners from the United States, the United Kingdom, and Israel. We use the interviews to assess whether the project of approximating Delaware corporate law has succeeded in shifting incorporation decision preferences away from Delaware to Israel and watering down the natural reluctance of global investors to accepting an unfamiliar corporate law when engaging in cross-border corporate M&A transactions involving an Israeli party. Our findings indicate that the approximation project has countervailing effects, opinions about its success being polarized and nuanced; that approximation increases the familiarity of domestic practitioners with the foreign law being emulated, making the emulated law easier to implement; and that approximation creates more room for other aspects of interjurisdictional competition to influence private choices.

Keywords: choice of law, regulatory competition, corporate law, cross-border transactions, mergers and acquisitions, incorporation, legal transplants, comparative law, legal harmonization

Suggested Citation

Baum, Ido and Solomon, Dov, Delaware’s Copycat: Can Delaware Corporate Law Be Emulated? (January 12, 2022). 23 Theoretical Inquiries in Law 1 (2022), Available at SSRN: https://ssrn.com/abstract=4007605

Ido Baum

Haim Striks Faculty of Law - College of Management ( email )

7 Rabin Blvd.
Rishon Lezion
Tel Aviv, 75190
Israel

Dov Solomon (Contact Author)

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan
Israel
972-3-6000800 (Phone)

HOME PAGE: http://www.clb.ac.il/english/lectures/dov_solomon.htm

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