Lost in Translation: Corporate Opportunities in Comparative Perspective

Abstract

The corporate opportunities doctrine in the United States plays a pivotal role in the contemporary debate about whether English law’s regulation of when a director can personally exploit an opportunity encountered whilst a director should be more flexible than it is perceived to be. This article argues that this comparative encounter has produced partial and misleading accounts of US state corporate law and English law. The article submits three reasons for this. First, English scholarship has not taken full account of the institutional context of regulatory competition for incorporations within which corporate law in the United States is produced. This institutional context raises concerns about the influence of managerial interests on opportunities regulation in the US and raises questions about how an opportunities doctrine could evolve differently in the UK absent the pressures of regulatory competition. Second, scholars who praise US approaches to the corporate opportunities doctrine as a modern model of reform allow an idea about the American economy in the late 20th century to get in the way of a thorough consideration of the purported economic benefits of more flexible regulation. Third, the effect of jurisdictional juxtaposition or contrast leaves a strict, certain impression of English law that brushes over its flexible tensions and ambiguities.