Securing Corporate Opportunities in Europe – Comparative Notes on Monetary Remedies and on the Potential Evolution of the Remedial System
Forthcoming on Journal of Corporate Law Studies, 2018
Posted: 5 Feb 2018
Date Written: January 27, 2018
Abstract
Continental European jurisdictions have introduced corporate opportunities rules inspired by Anglo-American law. Despite a certain degree of homogeneity in substantive law, a comparative analysis of their monetary remedial systems highlights significant differences between common law and civil law remedies. These differences are worth examining because of the deterrence function connected to corporate opportunities remedies – deterrence being the core of fiduciary law. This article seeks to explain the divergences embedded in different legal traditions within a law and economics framework. It looks at potential developments of corporate opportunities remedies, drawing inspiration from a sample of European jurisdictions. Whereas UK law uses a vast array of remedies with high potential of deterrence, civil law remedies are fewer and weaker. UK law remedies also seem more flexible in terms of the variety of situations to which they apply (especially when the remedies are derived from the law of trust). Civil law remedies are not that flexible. However, the deterrence potential of civil law corporate opportunities remedies could be increased either through the introduction of criminal sanctions or future development of punitive damages doctrines.
Keywords: corporate opportunities, remedies, economic analysis, damages, disgorgement of profits
Suggested Citation: Suggested Citation