Corporate Rights Research Articles

Rights of corporations in perspective—corporations as partial legal orders

ABSTRACT The legal personhood of incorporated companies has become a topic of renewed interest among legal scholars as new kinds of rights are ascribed to corporations. In this paper, I will argue that the legal personhood of corporations, and other legal persons, fruitfully could be understood as a partial legal order, a concept developed from Kelsen’s theses on legal personhood in the Pure Theory. As I will show, understanding corporate legal personhood as a partial legal order illuminates that corporations are delegated not only power in the form of legal rights, but also power to determine the individual element of the norms addressed to them and power to determine the internal regulation of the corporation. The utility of understanding corporate legal personhood as a partial legal order is exemplified through recent case law on corporate freedom of religion, where the partial legal order nature of incorporated companies has been ignored.

Corporate personhood, corporate rights, and the contingency of corporate law

ABSTRACT Corporate personhood and corporate rights are co-constitutive in nature, meaning that they are mutually constructed – there is no singular, one-way causal path between a conception of corporate personhood and a conception of corporate rights. Consequently, modes of reasoning that purport to deduce the substance and extent of corporate rights from the mere fact of corporate personhood are logically circular. Although the relationship between corporate personhood and corporate rights is real and significant, this relationship cannot, in and of itself, comprehensively specify the content of corporate rights; their substance can only be specified by reference to external normative criteria. The upshot is that corporate law inevitably remains a socially and politically contingent field. Those advancing particular conceptions of corporate personhood and corporate rights should acknowledge the contingency of corporate law and present their preferred visions by reference to external normative criteria that they are prepared to acknowledge, describe, and defend.

Tensions in Corporate Contractarianism: Rhetoric Rather than Logic

Abstract The dominant conceptual approach in Anglo-American corporate law literature is to represent the company as a series of voluntary bilateral arrangements. Under such a contractarian approach, the role for company law is to facilitate private bargaining and transactions. This representation is far from uncontroversial, and is frequently challenged on both descriptive grounds (that it does not accurately describe company law) and normative grounds (that its claims as to what the law should be are unfounded). Yet it remains the primary analytical paradigm within corporate law. It presents as an internally coherent representation, which can adequately defend itself from external challenges. The purpose of this article is to explore tensions within the internal argumentation structure of certain claims of this representation. Specifically, this article identifies and unpacks tensions of logical coherence within two key moves advanced within this representation. First, hasty generalisations are provided, extrapolating from unrepresentative samples. Second, there is a circularity in normative claims as to the allocation of corporate rights: the fact that rights are currently provided is frequently used as a reason to justify such rights being initially allocated. This commits the logical fallacy of ‘begging the question’. These two main weaknesses of contractarianism undermine its claim to be an inevitable result of logic. Instead, it is best seen as a series of rhetorical moves: they arise as a result of pre-existing value judgments, and therefore cannot be utilised to justify such value judgments.

“The Northern Man and His Corporations, the Southern Man and His Slaves”: Revisiting the Conspiracy Theory of the Fourteenth Amendment

For over a hundred years, the “conspiracy theory” of the Four-teenth Amendment has haunted legal scholarship. First articulated in a seminal case involving corporate constitutional personhood, the con-spiracy theory posits that the drafters of the Fourteenth Amendment were motivated by economic interests in addition to, or even more than, the rights of Black Americans. In recent decades scholars have dismissed the conspiracy theory as “fanciful.” Yet as this article reveals, the conspiracy theory had a basis in fact: the primary drafter of the Fourteenth Amendment, John A. Bingham, undeniably had corpora-tions in mind as well as Black Americans when he included the protection of the “privileges and immunities” of citizenship in the Amendment. Reading the history of antislavery activism together with the history of corporate personhood, this article interrogates the legal and philosophical landscape of the moment in order to uncover why, for Bingham and other advocates of corporate citizenship, the rights of corporations were as deserving of protection as the rights of Black Americans. It reveals that for decades prior to the drafting of the Four-teenth Amendment, questions involving the ability of both Black persons and corporations to claim the privileges and immunities of cit-izenship in the context of interstate mobility had dominated legal and public debate, compelling courts, individuals, and communities to con-front the nature of American citizenship, federalism, and fundamental rights.

Navigating the Impact of Multinational Enterprises on Labor Rights: Barriers to Justice in Developing Countries

The rise of multinational enterprises (MNEs) presents both economic opportunities and significant challenges, particularly in developing countries. This essay examines the adverse effects of MNEs on labor markets in these regions, focusing on redressing corporate rights violations and the barriers to justice for affected workers. The legal frameworks in both host and home countries often fail to hold MNEs accountable due to weak regulatory mechanisms and the corporate veil doctrine. International regulations, such as the UN Guiding Principles on Business and Human Rights, provide some guidance but lack enforceability. Recent due diligence laws in Europe offer promising steps toward corporate accountability, yet they fall short by excluding meaningful participation from stakeholders in the Global South, whose socio-economic realities are crucial to addressing MNE-related issues. The essay advocates an integrated approach that involves Global South governments, civil society, and local communities in decision-making, risk assessments, and enforcement processes to ensure justice and equitable protection for affected workers.

Legal and Ethical Boundaries of Company Refusing Service Considering Individual's Public Statements

As the impact of public discourse on the relationship between individuals and corporations becomes increasingly pronounced, this paper examines the legal and ethical issues surrounding when a company may refuse service based on an individual's public statements. The field of study has its deficiencies, particularly in the lack of clear guidelines at the intersection of freedom of speech and corporate rights. This paper aims to clarify the boundaries of rights between companies and individuals by analyzing specific legal cases, such as 303 Creative LLC v. Elenis and Masterpiece Cakeshop v. Colorado Civil Rights Commission and discusses the potential damages that may arise from refusing service. The study finds that companies can refuse service in specific circumstances without violating the law, especially when service provision may harm the company or its clients. This conclusion emphasizes the importance of respecting freedom of speech and protecting corporate rights. The significance of this research lies in providing legal guidance for companies dealing with service refusals based on public statements and offering a reference for future legislative and judicial practices, contributing to a deeper understanding and respect for freedom of speech and corporate rights.

Цифровые финансовые активы как технология фиксации имущественных требований и обмена данными о них

The authors explore the phenomenon of digital financial assets from the perspective of innovative investment technology. The dualism of legislative provisions interpreting the legal nature of these assets is criticized. The conclusion is substantiated that digital financial assets do not belong to objects of civil rights previously unknown to the Russian legal system, but represent property rights that are individualized in circulation by unique information codes. Being negotiable investment assets, they have a commodity-value nature; data on their ownership and transfer of rights to them are transmitted via Internet communications. Through digital financial assets, information technology has been implemented to record the property claims of participants in civil turnover and exchange data about them; they can submit mandatory requirements that are not legally prohibited from alienating them within the framework of assignable structures. Due to this innovative technology, participants in civil turnover receive the legal equivalent of a certain mandatory requirement in digital form, including a requirement fixed in equity securities, a requirement to transfer such securities, as well as corporate rights determined by participation in the capital of a non-public joint-stock company. The use of digital financial assets provides an opportunity for individuals and legal entities to build investment relationships with minimal intermediary participation, conduct financial transactions in a transparent manner, increase investment profitability, and simplify the search for counterparties.

The Protection of Labor Rights of Chinese Multinational Corporations under the Belt and Road Initiative

With the deepening of the "Belt and Road" Initiative, the number of Chinese overseas workers is increasing, and the protection of labor rights and interests is becoming more and more prominent. This article analyzes the problems in the protection of labor rights and interests of Chinese multinational corporations and their causes, and finds that these problems are mainly concentrated in the aspects of identity legitimacy, law application, discrimination in employment access and neglect of the right to human dignity. The incompleteness of the host country's legal and social security system, the inadequacy of diplomatic and consular protection in the home country, the lack of social responsibility of transnational corporations, and the weak awareness of workers' rights are all important reasons for the violation of workers' rights and interests. In order to solve these problems, the paper proposes optimization paths at the national level, the level of transnational companies and the level of workers themselves, including building regional agreements, strengthening legal aid, implementing legal training and raising awareness of self-protection. Through multi-faceted efforts, we can better protect the legitimate rights and interests of overseas workers of Chinese multinational companies, promote the smooth implementation of the Belt and Road Initiative, and achieve the goal of win-win cooperation.

Корпоративный договор: гражданско-правовая сделка или публично-правовое дозволение?

This article considers the problems of determining the subject matter of a corporate contract, assesses the cor-relation between a corporate contract and the charter of a business company according to Russian law and foreign legal orders. The corporate contract should be considered as a civil-law deal concluded on the basis of public-law permissions. The subject matter of a corporate contract is corporate rights and obligations, the pro-cedure for the exercise or non-exercise of which is established by agreement of the parties, and it is permissi-ble to include in the contract elements of other types of transactions than those expressly provided for by the Civil Code of the Russian Federation. Under Russian law, a corporate contract is not subordinate to the compa-ny’s charter. Compliance with the imperative requirements of the law is sufficient to recognize a corporate agreement as valid regardless of its relation to the company’s charter.

The legal foundations and specifics of exercising corporate rights by individuals authorized to perform local self-government

Financial liberalization is a widely adopted policy for countries to enhance growth. Financial liberalization enables financial institutions to proceed with innovative activities by familiarizing themselves with fewer mortgage loans in the financial market. Financial liberalization is a widely adopted policy for countries to enhance growth; however, it is a complex and controversial issue, with different studies providing contrasting perspectives. Financial liberalization is considered an efficient way to measure and change the financial market and structure in order to reach a position to get financial liberalized markets under an efficient and effective guideline. In the case of Vietnam, very few scholars have investigated the issue of financial liberalization-led growth. This endeavor examines the effects of financial liberalization on economic growth in the presence of control variables for Vietnam over the period of 1990 to 2021. This study uses the Autoregressive Distributive Lag Model approach due to its several advantages. The results show that financial liberalization enhances economic growth, which implies that more liberalization results in enhanced growth in Vietnam. Improved access to credit is another positive outcome of financial liberalization, as it can result in greater access to credit for individuals and businesses, enabling them to make investments and expand their operations. Hence, the results support the neo-liberal view of liberalization.

Тенденції розвитку законодавства та доктрини приватного права про підприємницькі юридичні особи

The scientific article raises the question of outlining the direction of development of civil and corporate legislation of Ukraine regarding legal entities in general and business, in particular. The definition of legal forms of legal entities in the light of the recodification of the Civil Code of Ukraine. The author of the article supports the idea laid down in the Concept of updating the Civil Code of Ukraine in the part that the legal regulation of organizational and legal forms should be developed in the direction of a closed list of organizational and legal forms of legal entities– societies and institutions. The need to systematize those legal entities that are part of the legal form of «institution» is emphasized, because institutions, funds, and individual legal entities of public law operating in the legal form of the institution differ in their legal status and are not sufficiently regulated today. It is concluded that it is necessary to strengthen the role of the Civil Code of Ukraine in determining the legal status of legal entities of public law by enshrining in the Code norms that would indicate the fundamental nature of the provisions of private law in regulating the organizational and legal forms of legal entities of public law. It is noted that the basis of understanding the concept of an entrepreneurial legal entity are two criteria: activities for profit and its subsequent distribution between participants; the emergence of the founders of a special type of property and personal rights, which are called corporate rights. It is indicated on the need to distinguish between corporate and membership legal relations arising in entrepreneurial and non-entrepreneurial societies. In the article, due to the application of the criterion of «degree of completeness of rights», it was concluded that there are no grounds for identifying membership and corporate legal relations. The content of membership rights in non-entrepreneurial societies is non-property rights, that is, one of the elements of the corporate rights of participants in entrepreneurial societies. Certain property interests, if any, arise in non-entrepreneurial societies, as a general rule, fit into the design «not to get more than invested». It also emphasized the need to improve Art. 961 of the Civil Code of Ukraine regarding the definition of corporate rights, the need to determine the degree of detail of regulation of entrepreneurial legal entities at the level of the Civil Code of Ukraine, in particular in terms of returning to the structure of the Civil Code of Ukraine the norms on joint-stock companies and limited and additional liability companies.

Jurisdictional form of protection of corporate rights under the legislation of Ukraine

Jurisdictional form of protection of corporate rights under the legislation of Ukraine

The Notary Institution as a Form of Protection of Corporate Rights

The Notary Institution as a Form of Protection of Corporate Rights

Legal regime of a share in the charter capital of a limited liability company

Based on the analysis of Ukrainian legislation and legal doctrine, the article examines the legal regime of a share in the authorised capital of a limited liability company. The necessity of considering a share in the authorized capital in two senses is substantiated: economic and legal. According to the first meaning, such a share expresses a part of the value of the company’s property and gives a person the opportunity to dispose of the company's capital (assets). However, from a legal point of view, there is an insurmountable obstacle to this understanding – the status of a limited liability company as an independent participant in civil relations, which owns such property, and property separation is one of the features that characterises it. The opinion that a share in the authorised capital of a limited liability company does not coincide with the concepts of “corporate rights” or “property rights” is supported, it is an independent tradable object, but with a specific legal regime, in particular, it cannot be the object of other limited property rights, but it is such a share (and not corporate rights) that can be the object of property rights. It has been proved that: 1) the legal nature of a share should be characterised through the legal nature of the powers of a limited liability company participant; 2) such powers constitute a single and indivisible set of corporate rights which are recognised as a separate category of rights, along with obligatory and property rights; 3) the legal nature of corporate rights is of a comprehensive nature, which primarily consists of a combination of the principles of absoluteness and relativity; 4) the definition of a share only through the shareholder's rights is not justified, since the shareholder's rights are inextricably linked to his/her obligations; 5) a share as an object of civil rights is “other property”, not “property rights”.

SUSPENSION OF CORPORATE RIGHTS

SUSPENSION OF CORPORATE RIGHTS

Peculiarities of division of corporate rights of spouses: through the prism of the Supreme Court practice

Introduction. The paper is devoted to the study of the issue of the division of marital property, namely corporate rights, which is the least regulated at the legislative level. The purpose of the paper is to carry out further scientific research of theoretical and practical aspects of the legal regime for division of corporate rights of spouses under Ukrainian legislation. Results. The author analyzes the scientific approaches to the definition of the concept of corporate rights of spouses, and reveals the content and features of the presumption of joint property. The scientific study of the issue of the legal regime of marital property (corporate rights) offers various variations of further development of the approach to the division of marital property at the legislative and case law levels. The paper emphasizes that the property owned by a husband and wife in joint ownership and transferred to the authorized capital of a legal entity becomes the property of the latter and ceases to be the object of joint ownership of the spouses, while one of the spouses receives corporate rights and the other receives the right of claim. The author analyzes the impact of the decision of the Constitutional Court of Ukraine on private law relations, which changed the vector of development of the issue of joint marital property and its possible division. Within the framework of the issue of the legal regime of corporate rights of spouses, the author makes an excursion into the case law on this issue and traces the changes in case law regarding the possibility, procedure and object of division of corporate rights. Conclusion. The author comes to the conclusion that there is no clear legislative regulation of the legal institution of division of corporate rights of spouses, and the dynamic development of judicial practice which establishes different approaches to the practical solution of this issue.

Assessing the impact of corporate rights regulation on the risk of corporate conflicts

Assessing the impact of corporate rights regulation on the risk of corporate conflicts

Legal regulation of inheritance of corporate rights under the laws of Ukraine and EU countries

Legal regulation of inheritance of corporate rights under the laws of Ukraine and EU countries

Determining the amounts of membership interests in the charter capital of a limited liability company as an appropriate way to protect the rights of the member through legal proceedings

In the modern context of corporate law, the study of the effectiveness of the protection of corporate rights of participants in limited liability companies (hereinafter – LLC) is an extremely relevant topic for research. Limited liability companies are the most common organisational and legal form among legal entities for conducting business activities in Ukraine, especially at the levels of small and medium- sized businesses. In this regard, the legislative regulation should be based on accessible and reliable mechanisms for protecting the rights and interests of participants, and quick and fair resolution of internal conflicts that may threaten the viability of the business. The processes of state registration of information about limited liability companies are defining components of the transparency of business activities of this type of legal entity. The article focuses on the importance of the unity of law enforcement practice and legal positions of commercial courts in consideration of corporate disputes, which is an important factor for the protection of property rights, stimulation of investments, and ensuring the stability of the corporate sector of the economy. The legal positions of the Supreme Court regarding the exhaustive list of ways to protect the rights of an LLC member have been explored. It is noted that to protect the rights of members of limited liability companies in cases where their corporate rights have been violated, it is important to consider the provisions of part 5 of article 17 of the Law of Ukraine “On State Registration of Legal Entities, Individual Entrepreneurs and Public Organisations”. An analysis of judicial decisions reveals controversial issues regarding the application of the provisions of this Law. Within this article, an assessment of the effectiveness of current mechanisms for protecting corporate rights is provided, opportunities for their improvement are identified, and recommendations for improving legislative regulation and judicial practice are developed. Special attention is paid to the analysis of ways to protect the rights and interests of participants in the context of state registration of changes to the charter capital and the amounts of membership interests, as well as the assessment of the proportionality and adequacy of the applied measures.

Положение пережившего супруга при наследовании прав, связанных с участием в коммерческой корпорации

The article examines the theoretical and practical problems of the position of the surviving spouse in the succession of rights related to participation in a commercial corporation. The author analyses the content of the status of the surviving spouse, the peculiarities of the exercise of his rights in the event of the death of the participant (member) of a commercial corporation. The article analyzes the jurisprudence on the succession of corporate rights by the surviving spouse. The author concludes that it is necessary to use the tools of hereditary planning and emphasizes the high importance of family entrepreneurship in modern Russian law.