The De-Privatisation of Anglo-American Corporate Law?

Abstract

This chapter examines and challenges the dominant academic portrayal of Anglo-American corporate law as an aspect of private law, and argues for a re-characterisation of the subject that reflects the centrality of public regulation to its core dynamics. It first explores the purported ‘privity’ (or privateness) of corporate law as it is most commonly understood and taught within the English-speaking world. It highlights an apparent ‘de-privatisation’ trend in Anglo-American corporate law over recent years, including the impact of increasing federalisation of corporate law in the United States under the Sarbanes-Oxley and Dodd-Frank reforms, and also the effect of increasing juridification of corporate law in the United Kingdom at both domestic and EU level. It notes that, insofar as these more publicly oriented aspects of corporate law have tended to be rationalised under the separate head of securities (or capital markets) law reforms, their existence has generally not been seen as threatening the continuing private dynamic of ‘corporate’ law in the narrowly defined sense. As against this, however, it argues that once the inherent artificiality of the conventional corporate/securities law divide is recognised, the prevailing academic characterisation of Anglo-American corporate law as a private phenomenon is rendered descriptively and normatively unsustainable.