Transnational corporate and capital markets law notes
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The exam has essay-based questions; however, you may get a non-essay question
for the “securities” section
Seminar 1 – 3 questions
1. “Determining the nature of the company is a contested and unresolved issue with
significant consequences for business and society.” Discuss this statement with reference to
relevant theories on the nature of the company.
*Basically, you will need to discuss the different THEORIES of the nature of the company,
i.e. real entity theory versus aggregate theory
- real entity/natural entity = corporation is a real entity with a separate existence to
shareholders
-aggregate theory/artificial entity= corporation is a mere aggregation of individuals without
separate existence – shareholder-focused
* You should discuss different jurisdictions, i.e. UK versus Germany
*Highlight the differences this causes on society, i.e. look at employment rights,
environmental policies of companies, how creditors are treated during insolvency, consumer
protection etc.
Read : https://www.lawteacher.net/free-law-essays/company-law/characterisations-ofcorporations-as-aggregates-law-essays.php
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3111&context=dlj
2. Is company law necessary for business?
* Basically, decide whether we need company law, or can we achieve the same goals with
contract law, or other parts of law?
* You will want to provide arguments for and against, i.e. YES company law is necessary
versus NO company law is not necessary…
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YES = big companies like Plc’s – Nike plc would find it too difficult to operate with
contract law
YES = limited liability; this is a standard concept incorporated into all companies,
without it, companies wouldn’t do business with each other, companies wouldn’t take
risks, etc.
YES = contracts do not predict the future, whereas company law can provide
mechanisms for future disputes
YES= shareholders know their rights from the very start – the articles of association
offer perpetuity and certainty
NO= make the point that, contract law could work for much smaller companies –
make contracts with everyone
3. What in your view should be the primary principle of company law, accountability or
facilitation of business? Can the facilitative/enabling and the regulatory role of company law
be simultaneously pursued?
* Basically, this question asks you to compare mandatory and default rules; mandatory
(accountability/regulatory) versus default (facilitative/enabling)
*To put it another way, this questions asks whether the rules should come from within (selfregulation) or whether the rules should come from above (external governmental regulation)
– who should be the rule makers?
* Do they conflict? Or can they be pursued at the same time? How do you strike the correct
balance?
*Think about different countries approaches, i.e. Delaware (US) = default rules/facilitative
approach versus Germany = mandatory rules/regulatory approach
Seminar 2 – 3 questions
1. What are the principles behind the corporate veil lifting approaches in the UK and the
US? Which jurisdiction in your view regulates shareholder/group liabilities more
effectively and why?
*Basically, look at how judges decide the veil-lifting cases in the UK versus the US
*Specifically, look at how group liability are regulated
*Think about the cultural differences
US
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Unprincipled
Lacks certainty
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Formal/literal
UK
2. Compare the effectiveness of entity law as opposed to enterprise law in relation to
dealing with corporate group liability issues. Use examples from at least two major
jurisdictions.
*Basically,
3. Both veil lifting and general group liability law are inadequate and unnecessary.
Abuse of the corporate group structure is better dealt with special legislation
regulating specific types of abusive conduct.
I do not think a question on this is likely
Seminar 3
Seminar 4
Seminar 5 notes