Book Review: The Comparative Anatomy of Corporate Law

26 Pages Posted: 21 Nov 2004

See all articles by Luca Enriques

Luca Enriques

University of Oxford Faculty of Law; European Corporate Governance Institute (ECGI)

Date Written: November 2004

Abstract

The Anatomy of Corporate law (REINIER KRAAKMAN ET AL., THE ANATOMY OF CORPORATE LAW. A COMPARATIVE AND FUNCTIONAL APPROACH (Oxford University Press 2004)) provides the first global and comprehensive comparative and functional analysis of corporate law. The book makes four main claims:

(1) Business corporations are characterized by "an underlying commonality of structures that transcends national boundaries:" they display everywhere five key features (legal personality, limited liability, transferable shares, delegated management with a board structure, and investor ownership).

(2) The problems that corporate law must universally address stem from the web of agency relationships underlying the corporate form (shareholders-managers; majority-minority shareholders; shareholders-other stakeholders, mainly creditors and employees); in addressing them, "the law turns repeatedly to a basic set of legal strategies."

(3) More analytically, corporate laws in major jurisdictions invariably resort to one or more of ten legal strategies to address such agency problems, as shown by the book's illustration of laws relating to basic governance, creditor protection, related-party transactions, significant corporate actions, control transactions, and issuers and investor protection.

(4) Finally, "[major] jurisdictions pick from among the same handful of legal strategies ... when addressing a specific agency issue or regulating a particular transaction," "corporate law ha[ving] converged significantly across [them]."

After describing claims (1) and (2) and putting them in the context of recent studies in the law and economics of corporations, this review concentrates on the claims (3) and (4), first with a criticism of the book's conceptual framework for failing to consider enforcement issues and the interaction between legal strategies and enforcement techniques. This failure reduces the analytical strength of the book's comparative analysis of corporate laws in major jurisdictions. Finally, the review focuses on the strongest and most controversial claim, the fourth one, first analyzing the authors' explanations for the persisting divergences among major jurisdictions and then questioning its very substance.

Keywords: Corporate Law, Comparative Corporate Governance, Convergence, Corporate Law Enforcement, Self-Dealing

JEL Classification: G34, K22, K42

Suggested Citation

Enriques, Luca, Book Review: The Comparative Anatomy of Corporate Law (November 2004). Available at SSRN: https://ssrn.com/abstract=621142 or http://dx.doi.org/10.2139/ssrn.621142

Luca Enriques (Contact Author)

University of Oxford Faculty of Law ( email )

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

European Corporate Governance Institute (ECGI)

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

HOME PAGE: http:/www.ecgi.org

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