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Corporate Opportunities: A Law and Economics Analysis

Corporate Opportunities: A Law and Economics Analysis

Author: Marco Claudio Corradi
Publisher: Hart Publishing
ISBN: 9781509953226

Published In: March 2023
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781509917457

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Description
Contents

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This monograph provides a comprehensive analysis of corporate opportunities doctrines from a comparative perspective. It looks at both common law and civil law rules and relies to a large extent on a law and economics approach.

This book broadens the conventional view on corporate opportunities, a vital step in light of the adoption of corporate opportunities rules in civil law jurisdictions and in light of investors' ever-changing strategies. This approach considers institutional complementarities and especially industrial complementarities. The book thus explores several jurisdictions and their economic and industrial environments, whilst also assessing the impact of globalisation onto legal reform. Furthermore, it analyses the problems related to the application of corporate opportunities rules to cross-border venture capital.

In normative terms, the book advances one main stance, articulated in three points: first, it proposes different sanctions for undisclosed and disclosed misappropriations, supporting the core idea that sanctions should be set against disclosure and not authorisation. Secondly, it advances the idea that sanctions against undisclosed misappropriations should be more severe than the ones presently applied. Thirdly, it considers the possibility of a more flexible treatment of disclosed misappropriations.

This study is positioned at the intersection of several fields, providing a lens into a much broader range of dynamics that will be of interest to a varied international readership, and offering a window into the broader institutional dynamics at work in centres of innovation (eg Silicon Valley and industrial districts in other jurisdictions). It is rooted in law and economics, but the emphasis is placed on how corporate opportunities rules fit within a broader set of institutional dynamics that affect innovation, industrial efficiency, and economic competitiveness.

1. Corporate Opportunity Legal Paradigms and Industrial Development: From Localised Business to Trade and Financial Globalisation

I. Introduction

II. A Concise Overview of the Debate on Corporate Law Convergence and Divergence

III. The Evolution of Corporate Opportunity Rules in Light of the Varieties of Capitalism Theory – A Comparison between British and Italian Law

IV. The UK Corporate Opportunity Rules and the Shift from an Industrial-Based to a Financial Services-Based Economy

V. Italian Directors' Duty not to Compete with the Company and Corporate Opportunity Rules in a Diversified Economic and Industrial System

VI. Concluding Remarks on the Comparison between the UK and Italy

VII. Corporate Opportunity Rules and the Development of the Spanish Economy from Autarchy to Internationalisation

VIII. Conclusion

2. A Cost-Based Analysis of Corporate Opportunity Doctrines

I. Introduction

II. The Economic Effects of Corporate Opportunity Doctrines and their Connection to the Duty of Loyalty of Directors

III. Deterring Misappropriations and Containing Agency Costs

IV. Protecting the Long-Term Business Development of the Corporation and Reducing Hold-Up Costs

V. Non-Patentable Technological Innovation and a Corporate Opportunity Doctrine Dilemma: The Costs of Protecting v Diffusing Innovation

VI. Bargaining Over Corporate Opportunities, Setting Appropriate Remedies and Reducing Transaction Costs

VII. Conclusions

3. An Economic Analysis of the Remedies for the Misappropriation of Corporate Opportunities

I. An Introduction to Deterrence from a Philosophical and Economic Perspective

II. The Dismissal of a Company's Director as a Consequence of a Misappropriation of a Corporate Opportunity

III. Gain-Based Remedies in Common Law: Account of Profits and Disgorgement of Profits Assisted by a Personal or Proprietary Constructive Trust

IV. Gain-Based Remedies in Civil Law Jurisdictions: The Spanish 'Enriquicimiento Injusto' and the German 'Eintrittsrecht'

V. Damages Awards for the Misappropriation of Corporate Opportunities in Common Law and in Civil Law Jurisdictions

VI. Punitive (or 'Exemplary') Damages for the Misappropriation of a Corporate Opportunity

VII. Criminal Sanctions for the Misappropriations of Corporate Opportunities: Notes with a View to the Future Law

VIII. The Viability of Temporary Remedies: Injunctions and Astreintes

IX. Reputational Sanctions as a Consequence of the Misappropriation of a Corporate Opportunity

and the Difficulties of Quantification

X. Conclusions

4. Bargaining Over Corporate Opportunities as the Central Objective of Corporate Opportunity Doctrines

I. Introduction: Leaving Behind the Property versus Liability Rules Debate – A Destructured Approach to Bargaining

II. Models for the Analysis of Bargaining Over Corporate Opportunities

III. Assumptions Underlying the Analysis of Bargaining Over Corporate Opportunities

IV. The Protection of Entitlements to Exploit Corporate Opportunities and Disclosure

V. Negotiation and the Protection of Entitlements to Exploit Corporate Opportunities

VI. Residual Post-Negotiation Efficiency Profiles and the Protection of Entitlements to Exploit Business Opportunities

VII. Notes on the Taking of Corporate Opportunities in a Repeated Game Context

VIII. A Normative Benchmark for Continental European Corporate Laws

IX. The State of the Art in Anglo-American and in Continental European Corporate Laws

X. Conclusion

5. Corporate Founders and Corporate Opportunities in Highly Innovative Environments

I. Introduction

II. The 'Lone Genius' versus the Team, from Leonardo and Edison to the 'Industrialisation of Invention'

III. Limited Convergence in Corporate Opportunity Rules, Divergence in Corporate Opportunity Remedies

IV. Founders under the Lens of IP Theory: Do Employee Innovation Incentives Apply?

V. Overview of an Evolving Research Field – Institutional Economics, Corporate Governance and Innovation

VI. At the Core of Technological Innovation: Creation, Circulation and Combination of Knowledge Building Blocks

VII. Technologic Innovation Traditional 'Taxonomy' versus Disruptive Innovation

VIII. Corporate Founders and their Incentives to Innovate within a Corporation: Founders' and Corporations'

Perspectives

IX. Founder-Led Innovation and the Corporation in the Light of Modern High-Tech Innovation Strategies

X. You are Smart, You have Great Ideas! European or US Finance? Implications for the Private Ordering Debate

XI. Conclusions

6. Corporate Opportunities and Venture Capital

I. Introduction

II. The Cross-Border Dimension of Venture Capital: Old and New Policy Questions

III. The Multi-Layer Dimension of the Conflict of Interest in Venture Capital

IV. The Relationship between Venture Capitalists and Entrepreneurs: Business Opportunism, Unilateral,

Bilateral and Multilateral Risks of Misappropriations

V. Complicating the Taxonomy: Corporate Venture Capital and the Corporate Opportunity Paradigm

VI. Welcoming Cross-Border Venture Capital in Europe: Why do Corporate Opportunities Matter?

VII. Conclusion

7. Corporate Opportunity Doctrines: One Size Fits All or Multiple Efficient Solutions?

I. An Overview of the Debate on Private Ordering in Corporate Law

II. Does One Size Fit All? A Contract-Based Approach

III. The Absence of a Clear Definition of 'Corporate Opportunity': Weakness or Strength?

IV. The Limited Effectiveness of an Ex Ante Authorisation to Take Corporate Opportunities

V. The Benefits of a Waiver for Corporate Opportunities

VI. Rules on Resigning Directors and their Vital Importance for Venture Capital

VII. Remedies in Civil Law: How to Overcome the Intrinsic Weakness of a Remedial System Lacking Equity Remedies

VIII. Conclusions

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