Contractarians in Corporate Law: Having Their Cake and Eating it

Video date: 
Monday, 1 June, 2015
Video speaker(s): 
Dr Daniel Attenborough (IALS Visiting Fellow, University of Durham)

School of Advanced Study, University of London

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Institute of Advanced Legal Studies

Contractarians in Corporate Law: Having Their Cake and Eating it
Orwellian Corporate Private Ordering

Dr Daniel Attenborough
(IALS Visiting Fellow/University of Durham)

This proposed research examines and challenges the dominant academic portrayal of Anglo-American corporate law as an aspect of 'private' or facilitative law, and argues for a re-characterisation of the subject that reflects the centrality of neoliberal state interventionism to its core apparatus. More precisely, the crude discourse frequently conducted through the prism of simplistic opposites of public versus varieties of capitalism. The central precept is that the state is not, as some suggest, external or involuntarily relinquishing sovereignty, but is a state that purposefully creates and preserves through constant action an artificial institutional framework appropriate to competitive practices. This means the pre-existing paradigm that corporate governance laws can be regarded as the outcome of decentralised market or civil society bargaining, in contrast to regulatory state imposition, dissolves or erases the qualitatively different role of a state that works to introduce, implement, and reproduce the conditions necessary for the market driven private preferences of shareholders.

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