Comparative Corporate Governance Shareholders as a Rule-maker
It is fairly easy for a Finnish Jurist to understand German Company law. On the other hand, UK Company law seems very confusing. What is even more confusing is that the UK corporate govemance model is often regarded as one of the best in the World. Clearl
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Petri Måntysaari
Comparative Corporate Governance Shareholders as a Rule-maker
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Professor Petri Måntysaari HANKEN Swedish School of Economics and Business Administration Kauppapuistikko 2 65100 Vaasa Finland [email protected]
Cataloging-in-Publication Data Library of Congress Control Number: 2005925157
ISBN 3-540-25380-7 Springer Berlin Heidelberg New York This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer-Verlag. Violations are liable for prosecution under the German Copyright Law. Springer is a part of Springer Science+Business Media springeronline.com ° Springer Berlin ´ Heidelberg 2005 Printed in Germany The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Softcover-Design: Erich Kirchner, Heidelberg SPIN 11408284
64/3153-5 4 3 2 1 0 ± Printed on acid-free paper
Foreword
It is fairly easy for a Finnish Jurist to understand German Company law. On the other hand, UK Company law seems very confusing. What is even more confusing is that the UK corporate govemance model is often regarded as one of the best in the World. Clearly German law cannot be as bad as it is often said to be. This books results from these kinds of thoughts and an interest in comparative law, Company law and securities markets law. I wanted to find out whether the functional method would give anything new to say about the regulation of corporate govemance in Germany and the UK. As I have been lecturing on Company law and corporate govemance myself, I also wanted to write a book that I could use as a textbook in my courses. For this reason, I focused on one of the key questions in corporate govemance: the regulation of shareholder activism. Petri Mäntysaari HANKEN Swedish School of Economics and Business Administration Vaasa, Finland 2 March 2005
Table of Contents
1 Introduction
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2 Comparative Law and Corporate Governance 9 2.1 Introduction 9 2.2 The Comparative Legal Method in General 10 2.3 Comparative Corporate Governance inParticular 15 2.3.1 Introduction 15 2.3.2 The Objectives of Corporate Governance 16 2.3.3 The Choice of a Social Need 16 2.3.4 The Choice ofa Social Need and the Amount of Rules 18 2.3.5 The Choice of a Narrow Social Need 19 2.3.6 Rules on Governance and Rules on Constraints on Governance 21 2.3.7 The Legal Nature of Companies and the Organisation of Firms....... 22 2.3.8 The Sources and Natureof Rules 34 3 The Law of the European
