Acceptance speech honorary doctor Holger Fleischer

By Holger Fleischer, Max Planck Institute, Hamburg

Corporate Law Today: "Hottest Game in Town" or "The End of Corporate Law"?

Some thirty years ago, a US law professor effusively hailed corporate law as the "hottest game in town"[1]. In the following three decades, the subject has taken off everywhere: Textbooks, handbooks and commentaries have mushroomed, corporate law journals have flourished and the number of corporate law chairs has multiplied. The extent and sophistication of doctrinal work are considerable today. Nevertheless, or perhaps precisely because of this, one occasionally has the feeling that corporate law scholarship is saturated or even oversaturated. There are already some talk of "the end of corporate law".

Contextualising Key Sources of Company Law

This finding gives rise to the question of how corporate law research can be revitalized and what new pathways it could take in the future. In my opinion, one promising option is to strive for a stronger contextualization of key sources of corporate law. Such a research program could start with the various protagonists of corporate law[2]: company founders, courts, and legislatures. Let me illustrate this briefly with three projects of my own, each also with a sideways glance at Dutch company law.

Company Founders: Great Corporate Charters, Past and Present

Long before there were any codifications of partnership or company law, partners joined together to pursue a common purpose. Their contracts and articles of association thus form the original sources of company law. Nevertheless, corporate contracts have hardly been taken into account as a subject of research in their own right. A current book publication under the title "Great Company Charters, Past and Present”[3] attempts to change this. It documents – for the most part from business or family archives – famous articles of association and explains them in accompanying essays. The series of statutes ranges from the Florentine Medici to Google, from the Augsburg Fuggers to the Ohio Standard Oil Trust to the International Football Association FIFA.

From the Netherlands, the Octroi of the Vereenigde Oostindische Compagnie (VOC) of 1602, the Dutch East India Company, is examined – in many respects a forerunner of the modern stock corporation. A second example is the statutes of the aircraft manufacturer AIRBUS, which is organized as a European Company under Dutch law and has its registered office in Amsterdam.

Courts: Corporate Law Stories

The courts continually create new material for discussion through their leading decisions. These leading cases are often reduced to their guiding principles in the commentaries. Valuable information is often lost through this decontextualization and dehistoricization. Under the title "Corporate Law Stories"[4], a recently published book has undertaken to reappraise twenty leading decisions of German courts from 1912-2015 using court records and historical source material, thus bringing to light the true stories behind the great cases. Such an approach to the narrative side of corporate law, I believe, contributes to a deeper understanding of the decisions and allows the protagonists involved – judges, lawyers and professors, as well as the specific plaintiffs and their motives – to emerge much more clearly.

The Netherlands should also have no shortage of spectacular court decisions that could be retold as corporate law stories. I am thinking of the famous ABN Amro case of the Hoge Raad in 2007 or the recent decision of the Gerechtshof Den Haag in January this year against Royal Dutch Shell.

Legislators: New Types of Business Organisation Around the Globe

Finally, as far as legislators are concerned, it is worthwhile to trace the conditions under which new legal forms were created around the globe. In a current project[5], we are investigating where, how and why legislators across jurisdictions have decided to introduce entirely new types of business organisations, or at least variants of existing forms, over the past forty years. We have identified twenty examples, from the United States, France, Japan, the United Kingdom, Singapore, Greece, Poland, Germany, Austria, and Liechtenstein. These involve organizational forms as diverse as the U.S. Limited Liability Company, the Singapore Business Trust, the Liechtenstein Protected Cell Company, the French Société à Mission, and the Wyoming Decentralized Autonomous Organization.

In the Netherlands, too, there may be points of reference in this respect: Admittedly, the Flex BV of 2012 does not quite fit here, because it only modernised the old BV law, albeit to a considerable extent. However, apparently, the introduction of a new organisational form for social enterprises is being discussed, perhaps along the lines of a benefit corporation à la hollandaise.

A Richer and More Nuanced Account of Company Law through Contextualization

All three projects have in common that they do not limit themselves to the letter of the articles of association, the court decisions or the corporate law statutes. Rather, they try to dig deeper and bring to light the historical, economic, political and social drivers of company law evolution. I am convinced that contextualisation matters to present a richer and more nuanced account of company law.

[1] Buxbaum, 18 Del. J. Corp. L. 867, 868 (1993).

[2] For more on this Vogt/Fleischer/Kalss (eds.), Protagonisten im Gesellschaftsrecht, 230 pages, Mohr Siebeck, 2020.

[3] Fleischer/Mock (eds.), Große Gesellschaftsverträge aus Geschichte und Gegenwart, 1376 pages, de Gruyter, 2021.

[4] Fleischer/Thiessen (eds.), Gesellschaftsrechts-Geschichten, 790 pages, Mohr Siebeck, 2018.

[5] Fleischer (ed.), Rechtsformneuschöpfungen im in- und ausländischen Gesellschaftsrecht, in preparation for 2022.