The Corporate Opportunity Doctrine and Impossibility Arguments

Abstract

This article considers whether English law should allow a director to argue that if the company is unable to exploit a corporate opportunity, the director should be free to exploit it personally. The article supports the view of the Company Law Review Steering Group that the answer should remain no. In so doing it analyses US practice to show that, even where such arguments are recognised, they are difficult to prove and their potential application is curtailed through the development of satellite rules. Indeed, in practical terms there may be no significant difference between the Steering Group's recommendations and the position towards which US law appears to be moving.