Corporate Disputes Research Articles

Stakeholders in the Canada Business Corporations Act: An Appraisal and Some Proposals

The stakeholder vision has emerged as an influential stream in corporate governance. In the English-speaking world, Canada was the pioneer in introducing a regulatory stakeholder regime. This article examines the Canada Business Corporations Act (CBCA) for its concern for non-shareholder groups, in particular, their inclusion in the remedies provided in the statute and the experience with it. After making a critical review of the CBCA stakeholder regime, the article proposes specialized agencies to deal with intra-corporate or stakeholder disputes in business corporations. The stakeholder remedy in the CBCA is egalitarian. It posits a doctrinal equality between shareholders and other constituencies. An issue with the stakeholder remedy the CBCA promotes and the stakeholder empowerment it attempts in this process is their ex post principle. It is about intervention after conflicts have arisen between corporate actors. The framework is derived, essentially, from private law ideas about disputes and resolving them through litigation. As a result, the stakeholder regime in the CBCA does not sufficiently adopt the institutional approach to lawmaking. Yet the CBCA regime is a positive beginning, which can graduate towards a more wholesome model, one with the stakeholder vision as an informing principle of governance.The oppression remedy in the CBCA is also available to non-shareholder groups. Yet, the article argues, it has not been applied in an effective manner to resolve disputes raised by corporate stakeholders. The business judgment rule that courts apply to refrain from inquiring into corporate disputes is an important factor in undermining the statutory remedy available to non-shareholder groups. To overcome some of the difficulties posed by the business judgment rule and courts' lack of business expertise, the article proposes the creation of specialized, interdisciplinary panels to inquire into stakeholder disputes. This can help in making the stakeholder vision in Canadian corporate law more real and robust.

Shareholder Democracy à la Dworkin

Ronald Dworkin’s latest book, Is Democracy Possible Here?, inspired the author to transpose the American philosopher’s ideas expressed therein to the corporate governance debate and in particular to the position of shareholders in corporate disputes.

Arbitrability of Corporate Disputes in Ukraine

Recently, with the introduction of the Law No. 1076- VI dated March 5, 2009, the issue of arbitrability of corporate disputes has once again become highly controversial in Ukraine, reminiscent of the discussions which took place in 2007–2008 following the Recommendations of the High Commercial Court of Ukraine of December 28, 2007. This time corporate disputes became non-arbitrable as a matter of law. This article briefly analyzes the true reasons behind the legislative amendments as well as their particular scope. Despite the broad definition of a corporate dispute, share purchase agreements are still not covered by it and are thus fully arbitrable.

Regulating Enterprise: The Regulatory Impact on Doing Business

This is the introduction to a special volume that examines the regulatory impact of doing business in China. The introduction summarizes the results of conferences sponsored by the Oxford Foundation for Law, Justice and Society, and held in Hong Kong and Beijing. The participants addressed a wide range of subjects, including recently issued and yet to be promulgated draft laws and regulations in the areas of bankruptcy, anti-monopoly, real estate and labor; as well as developments in mergers and acquisitions, telecommunications, corporate social responsibility, dispute resolution, intellectual property, banking and financial governance, and the impact of China's accession to the WTO on legal and economic reforms. Major themes and topics include the methodology of reform and the suitability of different approaches to regulation; the impact of political, social and economic factors on legal reforms and vice versa; the influence of bureaucratic rivalries on implementation; the increasing diversity of economic actors and the rise of interest groups with clearly defined and oftentimes competing agendas; and the impact of economic globalization on the domestic regulatory system and the pushback from domestic actors, including foreign businesses, when it comes to international policies and practices that are not in their interests.

Piercing the Myth of Managementcontrol. The Ius Commune of the Shareholders’ and Stakeholders’ Models

This article reflects on the role of shareholders in company management against the background of recent hedge fund-triggered corporate disputes, in particular the struggle over the future policy of the Euronext Amsterdam listed company Stork NV.

A quest for Cinergy: The war metaphor and the construction of identity

As organizations struggle to present a consistent identity to multiple and overlapping publics, metaphor provides one unifying possibility. This essay examines the case of an unlikely winner in a corporate dispute over control of Indiana's PSI Resources, arguing that PSI's consistent portrayal of its “enemy” as a savage, using the war metaphor's victimage ritual, contributed to a successful defense. In addition to demonstrating how metaphor pervaded one organization's discourse to present a consistent identity to stakeholders, the essay offers questions and conclusions about the efficacy and ethics of the war metaphor as a weapon of corporate persuasion, with a focus on the consequences of its polarizing nature.

Objective Arbitrability of Corporate Disputes — the German Perspective

In general all matters of inter-corporate disputes are arbitrable under German law, provided that they are covered by a valid arbitration clause. Such an arbitration clause may be part of the articles of association of the company. There are no limitations as far as GmbHs and partnerships are concerned. However, the articles of association of a stock corporation, quoted on a stock exchange, may not contain an arbitration clause. They state courts have exclusive jurisdiction over disputes concerning the validity or nullity of shareholders' resolutions by such stock corporations. All other corporate disputes within a stock corporation may be covered by an individual arbitration agreement.

Price Discrimination in the Market for Corporate Law

This Article analyzes how Delaware uses its market power in the market for incorporations to increase its profits through price discrimination. Price discrimination entails charging different prices to different consumers according to their willingness to pay. Two features of Delaware law constitute price discrimination. First, Delaware's uniquely structured franchise-tax schedule assesses a higher tax to public than to nonpublic firms. Second, Delaware's litigation-intensive corporate law effectively price discriminates among firms according to the level of their involvement in corporate disputes. From the perspective of social welfare, tax discrimination is likely to enhance efficiency. By contrast, price discrimination through litigation-intensive corporate law is likely to reduce efficiency.

Alternative Dispute Resolution in the Workplace: Concepts and Techniques for Human Resource Executives and Their Counsel

Alternative Dispute Resolution in the Workplace: Concepts and Techniques for Human Resource Executives and Their Counsel, by E. Patrick McDermott with Arthur Eliot Berkeley,1996, Westport, CT: Quorum Books. Reviewers: Penelope R. Mercurio-Jennings and William P Jennings, California State University, Northridge Alternative Dispute Resolution in the Workplace: Concepts and Techniques for Human Resource Executives and Their Counsel seeks to explain the uses, benefits, and costs of various nonjudicial alternatives to disputes arising in the workplace. Structurally, the book is divided into three chapters and an appendix. Chapter 1 (The Changing Legal and Legislative Landscape) discusses recent legislation and court decisions focusing on the legality of mandatory binding arbitration provisions. Chapter 2 (Varieties of Alternative Dispute Resolution) sets forth examples of alternative methods of resolving disputes between workers and employers from such simple and obvious concepts as an policy to more complicated arbitration/mediation models. Chapter 3 (The Trend: Corporate Alternative Dispute Resolution Programs) and the appendix provide examples of corporate dispute resolution plans and programs from companies like Northrop, Rockwell International, Travelers Group, and, in detail, Brown & Root. The book reviews workplace dispute resolution techniques available to employers, including binding arbitration, and, to a certain extent, such techniques as open-door policy, peer review, ombudsman, employer-run dispute resolution procedures, unionmanagement model, mediation, and fact-finding. The book analyzes these dispute resolution alternatives as management tools to help avoid or reduce the cost of litigation and to protect rights of employers to manage workers. The most useful part of the book is the discussion of available ADR methods, particularly the actual plan used by Brown & Root (in the appendix). Although the book may be useful to human resource managers or corporate lawyers who are considering the implementation of an ADR plan, the book cannot be viewed as a comprehensive analysis of the use of ADR in the workplace. First, although there is a good discussion of the benefits of ADR, the disadvantages are glossed over. The authors ignore the importance (especially for employers in the long run) of having actual court decisions interpreting recent employment statutes such as the Civil Rights Act of 1991. Second, the major focus of the book is on mandatory binding arbitration. Other forms of alternative dispute resolution are, in general, merely mentioned. Thus, the book probably would have been more effective if the discussion had been limited to issues related to binding arbitration and the title had been changed accordingly. The authors might have intended to discuss nonjudicial workplace dispute resolution in an objective manner, neither pro-worker nor pro-management. …

Individual and Corporate Dispute Resolution: Using Procedural Fairness as a Decision Heuristic

The research reported in this paper was supported by the National Science Foundation (grants 84-11142 and 85-18597), the American Bar Foundation, and the Institute for Civil Justice of the RAND Corporation. The authors are grateful to Barbara Meierhoefer, Pat Lombard, and the Federal Judicial Center for supplying the Study 2 data, to Ruth Kanfer and Chris Earley for permission to reanalyze data from their study with the first author, and to Tom Tyler, Robert Sutton, Gina Ke, Bob Bies, and Karen Cook for their comments on earlier versions of this manuscript. Two studies examined how litigants' evaluations of the outcome and process of lawsuits affected their judgments about the of procedures and their acceptance of awards from court-ordered arbitration. The studies tested predictions concerning the operation of a fairness heuristic-that procedural justice judgments mediate the effects of process impressions and outcome evaluations on the decision to accept or reject the directives of an authority. Participants in the studies were corporate and individual litigants in federal tort and contract actions that were subject to court-ordered arbitration. In both studies the decision to accept the arbitrator's award or reject it and go to trial was strongly correlated with judgments of procedural justice, and much or all of the effect of outcome evaluations and process impressions on award acceptance was mediated by procedural justice judgments, which had a stronger effect than either subjective or objective measures of the arbitration award. Separate analyses of corporate and individual decision makers in the second study suggested that both groups relied heavily on procedural justice judgments in deciding whether or not to accept the arbitration award. The findings provide evidence of widespread use of a heuristic and support the extension of justice-judgment research to corporate decision making.'

In the court or in the village? Settling disputes in Yap: 1950–1979∗

20th century, the Y?pese people were confronted with choices between tra ditional and introduced strategies to settle personal and corporate disputes. In 1947 the US miUtary governor of Guam directed that municipal councils, magis trates, and laws be estabUshed in each Yap municipaUty. The Trust Territory High Court heard its first case on Yap in 1950, and with the establishment of civ? administration under the Department of the Interior in July 1951 the District Court became a significant part of the governing structure. These introduced institutions provided new alternatives for the resolution of disputes and at times denied the vaUdity of traditional ones. This paper examines, over a 30-year period, the increasing role of the Yap District and State Court for settling disputes. Through case studies and court statistics the paper documents how the people of Yap chose between two sig nificantly different institutions, with their respective structures and procedures: the traditional Y?pese viUage with its internal hierarchy and its external al Uances, and the American instituted Court. Each played a significant role in the recent history of government on Yap, as people sought the most satisfying alternative to resolve their differences or to obtain restitution for perceived damages to their property, persons, or kin. Yap is located in the Western Caroline Islands, and is poUtically the capital of Yap State in the Federated States of Micronesia. The land area is approximately 38 square miles, and the population in 1980 was approximately 7,000 people. Yap State includes the atolls to the east of Yap, extending from UUthi to Satawal, but the people of these islands are UnguisticaUy and culturally distinct. This study is based upon analyses of case materials of disputes coUected through participant observation and interviewing in the Gagil municipaUty of Yap in 1967-69, and 1979-80, and upon analyses of 30 years of records kept in the dockets of the Yap District and Yap State Courts.l

CPR, Northwestern to hold second annual Corporate Dispute Resolution Institute

Alternatives to the High Cost of LitigationVolume 1, Issue 10 p. 2-2 Events of Note CPR, Northwestern to hold second annual Corporate Dispute Resolution Institute First published: October 1983 https://doi.org/10.1002/alt.3810011005AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat No abstract is available for this article. Volume1, Issue10October 1983Pages 2-2 RelatedInformation

Mandatory Arbitration as a Remedy for Intra-Close Corporate Disputes

Mandatory Arbitration as a Remedy for Intra-Close Corporate Disputes