Does it matter how the law thinks about corporate opportunities?

Authors

  • David Kershaw

    1. School of Law, University of Warwick
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      My thanks to Marlies Braun, Steven Elliott, Bob Kershaw, Eva Micheler and Richard Moorhead for comments on earlier versions of this article.


Abstract

English opportunities regulation is confused about its relationship to the concepts of ownership and property. Recent reform proposals from the Company Law Review Steering Group would have changed English law's dominant regulatory lens: the way in which it thinks about the opportunities problem, from an approach focused on conflicts of interest to one focused on the‘ownership’of opportunities. This ownership approach is commonly referred to as the corporate opportunities doctrine. This article argues that the proposal failed as it did not consider the interpretative possibilities generated by changing the regulatory lens. However, the proposal inadvertently makes a contribution to the debate as it directs our attention to the function and meaning of ownership concepts in the opportunities context. Property in the opportunities setting is simply a label for qualified ownership as between the director and the company. However, the article argues that by understanding references to property in terms of traditional notions of property English law and commentary has obstructed the consideration and development of a long-standing English corporate opportunities doctrine.

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