Research Presentation Next Week

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May 29th at 17.00 in room C11 Taylor Building, Justin Borg Barthet will present his research in a presentation titled "Theories of the Firm and connecting factors". Here is an abstract.

Theories regarding the determination of the governing law of corporations can broadly be traced to two schools of thought. On the one hand, the incorporation theory is based on the contractual paradigm. In this construct, the principal feature that should determine the governing law is the freely expressed will of the shareholders. The real seat theory, on the other hand, takes the view that the corporation, as a fiction of national law, is inextricably linked to the State of its management centre, and that it is only this State that could determine the existence and scope of its legal personality.

Corporate law theorists have long debated the nature and purpose of the firm. The fundamental question of the extent to which the will of shareholders should be curtailed by the interests of other stakeholders in the firm remains unresolved in corporate governance theory. However, this has not translated into a deep and sustained analysis in the conflict of corporate laws camp. Proponents of the incorporation theory readily assume that the contractual liberty of shareholders trumps all other considerations, while proponents of the real seat theory are often equally dogmatic in their State-centric assumptions. Notwithstanding that both schools of thought make fundamental assumptions about the nature of the firm, the myriad relationships arising from the employment of the corporate form are not subjected to sufficient sustained scrutiny in the context of connecting factors in the conflict of corporate laws.

In this paper, an analysis of the policies adopted in a number of States will demonstrate that there is a clear nexus between corporate policy and conflicts theory. There is ample doctrinal and regulatory evidence to support the view that the nature of the firm is an essential feature of conflicts theory. This is also evidenced through the safeguards that are built into conflicts rules in States that adhere to the incorporation theory. In the final analysis, by accident rather than by design, the real seat theory is better placed to take the full spectrum of the firm’s relationships into account.

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