Corporate Opportunities: A Law and Economics Analysis

Description

Despite the many open questions on how to interpret corporate opportunity rules, their relevance for the development of a corporation in its early stages is undoubtable. The traditional economic reading of corporate opportunity doctrines has ascribed the rules to the area of economic agency theory, and has stressed their function to contain agency costs. But corporate opportunity rules are surrounded by a far more complex set of variables in highly innovative environments. On the one hand, the rules limit the mobility of corporate founders who sit on start-up boards – where founders represent the very building blocks and knowledge upon which technical innovation depends. On the other, they may limit venture capital intra-industry operativity – when the same general partner sitting on the boards of competing start-ups find themselves in a position of divided loyalty. Far from being a systematic commentary on corporate opportunity rules, this book applies the law and economics method to the corporate opportunity legal paradigm, drawing normative examples from both the common law and civil law traditions. After presenting a simplified economic model for the analysis of bargaining over corporate opportunities, it identifies common patterns in corporate opportunity rules and potential legal and/or contractual solutions for their development, either by way of court innovation or private ordering. These patterns and adaptations may prove crucial to different economic realities, such as industrial districts, venture capital and corporate venture capital. Preface Acknowledgements Table of Contents 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 Conclusions Bibliography Index