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Convergence, legal origins and transplants in comparative corporate law : a case-based and quantitative analysis.

Cabrelli, David and Siems, Mathias (2015) 'Convergence, legal origins and transplants in comparative corporate law : a case-based and quantitative analysis.', American journal of comparative law., 63 (1). pp. 109-153.

Abstract

In this Article, the authors intend to fill a gap in the comparative law literature by adopting a case-based approach to comparative corporate law that highlights the important dimension of specific cases in corporate law matters and how identifiable, but limited issues arising from such case disputes are resolved in different jurisdictions. Our study is based on ten cases used in a wider research project and their solutions in ten countries: eight European countries, the United States, and Japan. We assess the solutions to these cases using quantitative methods of network and cluster analysis. We also seek to enquire whether conceptual differences exist between the countries in terms of the source, form, style, and substance of the legal rules which comprise their corporate laws. The findings of this assessment are used to evaluate arguments developed in the academic comparative company literature which posit that the existence of fundamental differences in the protection of shareholders across countries reduces the scope for convergence in corporate law systems. The case-based evaluation is also applied to make a contribution towards other influential theories in comparative law, particularly the “legal origins” theorem and the “legal transplants” debate. For example, while we find some evidence of legal transplants, we show that the notion of legal origins has only limited value in today's corporate law. Furthermore, the research has a public policy dimension since the existence or absence of differences matters for the question of whether formal harmonization of corporate law in the EU, or further afield, is necessary, desirable, or at all possible.

Item Type:Article
Full text:(AM) Accepted Manuscript
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Status:Peer-reviewed
Publisher Web site:http://dx.doi.org/10.5131/AJCL.2015.0004
Publisher statement:This is a pre-copyedited, author-produced PDF of an article accepted for publication in American journal of comparative law following peer review. The version of record [insert complete citation information here] is available online at: http://dx.doi.org/10.5131/AJCL.2015.0004
Record Created:19 Jan 2016 12:05
Last Modified:10 Nov 2017 15:30

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