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  • The proprietary foundations of corporate law

    Author(s)
    Armour, John
    Whincop, Michael
    Griffith University Author(s)
    Whincop, Michael J.
    Year published
    2007
    Metadata
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    Abstract
    Recent work in both the theory of the firm and of corporate law has called into question the appropriateness of analysing corporate law as 'merely' a set of standard form contracts. This article develops these ideas by focusing on property law's role in underpinning corporate enterprise. Rights to control assets are a significant mechanism of governance in the firm. However, their use in this way predicates some arrangement for stipulating which parties will have control under which circumstances. It is argued that 'property rules'-a category whose scope is determined functionally-protect the entitlements of parties to such ...
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    Recent work in both the theory of the firm and of corporate law has called into question the appropriateness of analysing corporate law as 'merely' a set of standard form contracts. This article develops these ideas by focusing on property law's role in underpinning corporate enterprise. Rights to control assets are a significant mechanism of governance in the firm. However, their use in this way predicates some arrangement for stipulating which parties will have control under which circumstances. It is argued that 'property rules'-a category whose scope is determined functionally-protect the entitlements of parties to such sharing arrangements against each other's opportunistic attempts to grant conflicting entitlements to third parties. At the same time, the legal system uses a range of strategies to minimize the costs such protection imposes on third parties. The choice of strategy significantly affects co-owners' freedom to customize their control-sharing arrangements. This theory is applied to give an account of the 'proprietary foundations' of corporate law, which has significant implications for the way in which the subject's functions are understood and evaluated.
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    Journal Title
    Oxford Journal of Legal Studies
    Volume
    27
    Issue
    3
    Publisher URI
    http://ojls.oxfordjournals.org/
    DOI
    https://doi.org/10.1093/ojls/gqm009
    Subject
    Law
    Philosophy
    Publication URI
    http://hdl.handle.net/10072/19009
    Collection
    • Journal articles

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