Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

Document

CORPORATE LAW, PRIVATE LAW AND INSTRUMENTALISM

Ernest Lim *

This article seeks to enrich our understanding of corporate law and private law. Deploying insights from the rights-based analysis in private law, it is argued that corporate law, in its instrumentalist conception, is unable properly to account for a defining feature of a private law dispute, its bipolar structure consisting of the correlative and personality elements. Through a critical examination of certain corporate law cases, it is shown that the rejection of instrumentalist considerations by the rights-based thesis is unwarranted; it demonstrates how judges in private law disputes can accommodate instrumentalist considerations in a structured, coherent and restrained fashion.

I. INTRODUCTION

It is striking that there is insufficient engagement between private law scholars and corporate (ie, company) law scholars,1 although corporate law is usually regarded as part of private law.2 Likewise, corporate law scholarship rarely makes an effort to engage with private law scholarship, save for occasional references to certain works in private law that have a direct impact within discrete areas (such as fiduciary duties) in corporate

*Associate Professor of Law, University of Hong Kong:

I am grateful to John Lowry, Lusina Ho, Thomas Cheng, Daniel Attenborough, the Editor Professor Francis Rose, and the anonymous referees for their helpful comments. The usual caveats apply.

The following abbreviations are used:

Beever: A Beever, Rediscovering the Law of Negligence (Hart, Oxford, 2007);

Dworkin, Law’s Empire: R Dworkin, Law’s Empire (Hart, Oxford, 1998);

Easterbrook & Fischel: EH Easterbrook and DR Fischel, The Economic Structure of Corporate Law (Harvard University Press, 1996);

Gower: P Davies and S Worthington, Gower and Davies Principles of Modern Company Law, 9th edn (Sweet & Maxwell, 2012);

Lucy, Philosophy: W Lucy, Philosophy of Private Law (Clarendon Press, Oxford, 2007);

Moore: MT Moore, Corporate Governance in the Shadow of the State (Hart, Oxford, 2013);

Nolan & Robertson: D Nolan and A Robertson (eds), Rights and Private Law ( Hart, Oxford, 2011);

Robertson & Tang: A Robertson and HW Tang (eds), The Goals of Private Law (Hart, Oxford, 2009);

Stevens: R Stevens, Torts and Rights (OUP, 2007);