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Corporate Opportunities

A Law and Economics Analysis

By: Marco Claudio Corradi
Media of Corporate Opportunities
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Published: 23-09-2021
Format: EPUB eBook (?)
Edition: 1st
Extent: 384
ISBN: 9781509917471
Imprint: Hart Publishing
Series: Contemporary Studies in Corporate Law
RRP: £76.50
Online price : £61.20
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About Corporate Opportunities

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.

Table Of Contents

Preface

1. Corporate Opportunity Legal Paradigms and Industrial Development: from Localised Business to Trade and Financial Globalisation
1. Introduction
2. A Concise Overview of the Debate on Corporate Law Convergence and Divergence
3. The Evolution of Corporate Opportunities Rules in the Light of the Varieties of Capitalism Theory – A Comparison between British and Italian Law
4. The UK Corporate Opportunity Rules and the Shift from an Industrial-based to a Financial Services-based Economy
5. Italian Directors' Duty Not to Compete with the Company and Corporate Opportunity Rules in a Diversified Economic and Industrial System
6. Concluding Remarks on the Comparison between the UK and Italy
7. Corporate Opportunities Rules and the Development of the Spanish Economy from Autarchy to Internationalisation
8. Conclusions

2. A Cost-Based Analysis of Corporate Opportunity Doctrines
1. Introduction
2. The Economic Effects of Corporate Opportunity Doctrines and Their Connection to the Duty of Loyalty of Directors
3. Deterring Misappropriations and Containing Agency Costs
4. Protecting the Long-Term Business Development of the Corporation and Reducing Hold-up Costs
5. Non-Patentable Technological Innovation and a Corporate Opportunity Doctrine Dilemma: The Costs of Protecting v Diffusing Innovation
6. Bargaining over Corporate Opportunities, Setting Appropriate Remedies, and Reducing Transaction Costs
7. Conclusions

3. An Economic Analysis of the Remedies for the Misappropriation of Corporate Opportunities
1. An Introduction to Deterrence from a Philosophical and Economic Perspective
2. The Dismissal of a Company's Director as a Consequence of a Misappropriation of a Corporate Opportunity
3. Gain-Based Remedies in Common Law: Account of Profits and Disgorgement of Profits Assisted by a Personal or Proprietary Constructive Trust
4. Gain-Based Remedies in Civil Law Jurisdictions: the Spanish 'Enriquicimiento Injusto' and the German 'Eintrittsrecht'
5. Damages Awards for the Misappropriation of Corporate Opportunities in Common Law and in Civil Law Jurisdictions
6. Punitive (or 'Exemplary') Damages for the Misappropriation of a Corporate Opportunity, and the Texan Company Law Experience
7. Criminal Sanctions for the Misappropriations of Corporate Opportunities: Notes with a View to the Future Law
8. The Viability of Temporary Remedies: Injunctions and Astreintes
9. Reputational Sanctions as a Consequence of the Misappropriation of a Corporate Opportunity and the Difficulties of Quantification
10. Conclusions

4. Bargaining over Corporate Opportunities as the Central Objective of Corporate Opportunity Doctrine
1. Introduction: leaving behind the Property versus Liability Rules Debate: A De-Structured Approach to Bargaining
2. Models for the Analysis of Bargaining over Corporate Opportunities
3. Assumptions Underlying the Analysis of Bargaining over Corporate Opportunities
4. The Protection of Entitlements to Exploit Corporate Opportunities and Disclosure
5. Negotiation and the Protection of Entitlements to Exploit Corporate Opportunities
6. Residual Post-Negotiation Efficiency Profiles and The Protection of Entitlements to Exploit Business Opportunities
7. Notes on the Taking of Corporate Opportunities in a Repeated Game Context
8. A Normative Benchmark for Continental European Corporate Laws
9. The State of the Art in Anglo-American and in Continental European Corporate Laws
10. Conclusions

5. Corporate Founders and Corporate Opportunities in Highly Innovative Environments
1. Introduction
2. The 'Lone Genius' versus the Team, from Leonardo and Edison to the 'Industrialisation of Invention'
3. Limited Convergence in Corporate Opportunity Rules, Divergence in Corporate Opportunity Remedies
4. Founders Under the Lens of IP Theory: Do Employee Innovation Incentives Apply?
5. Overview of an Evolving Research Field – Institutional Economics, Corporate Governance and Innovation
6. At the Core of Technological Innovation: Creation, Circulation and Combination of Knowledge Building Blocks
7. Technologic Innovation Traditional 'Taxonomy' versus Disruptive Innovation
8. Corporate Founders and Their Incentives to Innovate within a Corporation: Founders' and Corporations' Perspectives
9. Founder-Led Innovation and the Corporation in the Light of Modern High-Tech Innovation Strategies
10. You Are Smart, You Have Great Ideas! European or US Finance? Implications for the Private Ordering Debate
11. Conclusions

6. Corporate Opportunities and Venture Capital
1. Introduction
2. The Cross-Border Dimension of Venture Capital: Old and New Policy Questions
3. The Multi-Layer Dimension of the Conflict of Interest in Venture Capital
4. The Relationship between Venture Capitalists and Entrepreneurs: Business Opportunism, Unilateral, Bilateral and Multilateral Risks of Misappropriations
5. Complicating the Taxonomy: Corporate Venture Capital and the Corporate Opportunities Paradigm
6. Welcoming Cross-Border Venture Capital in Europe: Why Do Corporate Opportunities Matter?
7. Conclusion

7. Corporate Opportunity Doctrines: One Size Fits All or Multiple Efficient Solutions?
1. An Overview of the Debate on Private Ordering in Corporate Law
2. Does One Size Fit All? A Contract-based Approach
3. The Absence of a Clear Definition of 'Corporate Opportunity': Weakness or Strength?
4. The Limited Effectiveness of an Ex Ante Authorisation to Take Corporate Opportunities
5. The Benefits of a Waiver for Corporate Opportunities
6. Rules on Resigning Directors and their Vital Importance for Venture Capital
7. Remedies in Civil Law: How to Overcome the Intrinsic Weakness of a Remedial System Lacking Equity Remedies
8. Conclusions

Conclusions

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