Zeitschrift für Japanisches Recht
Heft Nr.13 / 7. Jahrgang 2002

Americanization of Stock Corporation Laws Around the World,
and Shareholders’ Derivative Suits as a Forgotten Element Therein:
A Caveat to Discussions on the Convergence of Corporate Laws*

Kenichi Osugi

 

I.      The Theme

II.     Dynamics in U.S. Corporate Law

III.    A Triangle Hypothesis: Complementarity among the Three Institutions

1.   Three Particularities in U.S. Corporate Law
2.       Complementarity between Shareholders’ Derivative Actions and Outside Directors
3.       Complementarity between Derivative Actions and Flexible Company Law

IV.    A Caveat to Other Countries in Adopting Derivative Actions and Outside Directors

1.   On Derivative Suits
2.   On Outside Directors

V.     Concluding Remarks

 

I.     The Theme

This paper argues how each country should advance a company law reform in connection with the ongoing “Americanization of company law” around the world, especially from the viewpoint of a lawyer in a country that has been heavily influenced by continental European laws. Put concretely, the author will discuss what U.S. corporate law[1] looks like from the perspective of a Japanese lawyer, and what other nations should have in mind in reforming their corporate laws by utilizing the merits of U.S. corporate laws. While U.S. corporate lawyers and corporate law itself have recently become more and more influential in other countries’ reform of their corporate laws,[2] this article’s …


*       This thesis is a reprint of that which originally appeared in: An Anthology Commemorating Retiring Prof. Dr. Woo Hon Gu – Perspectives of Korean Commercial Law in the 21st Century (Seoul June 2002). The author deeply acknowledges the permission to reprint it in this review. The cited URLs and information inthis paper areas of theend of January, 2002.

[1]      Though each of the fifty-one jurisdictions has its own business corporation code in the U.S., they are much more similar to each other than they are to company codes abroad, and therefore it is not inappropriate to use the term “American corporate law(s)” or similar expressions.

[2]      See, e.g., J.C. Coffee, Inventing a Corporate Monitor for Transitional Economies: The Uncertain Lessons from the Czech and Polish Experiences, in: K.J. Hopt / H. Kanda / M.J. Roe / E. Wymeersch / S. Prigge (eds.), ComparativeCorporateGovernance (Oxford 1998) 67; J.C. Coffee, Privatization and Corporate Governance - The Lessons from Securities Market Failure: Journal of Corporation Law 25 (1999) 1; B. Black / B. Metzger / T. J. O’Brien / Y.M. Shin & InternationalDevelopmentLaw Institute, Corporate…