Approaching Comparative Company Law

This paper identifies some common errors that occur in comparative law, offers some guidelines tohelp avoid such errors, and provides a framework for entering into studies of the company laws ofthree major jurisdictions. The first section illustrates why a conscious approach to comparativecompany law is useful. Part I discusses some of the problems that can arise in comparative law andoffers a few points of caution that can be useful for practical, theoretical and legislative comparativelaw. Part II discusses some relatively famous examples of comparative analysis gone astray in orderto demonstrate the utility of heeding the outlined points of caution. The second section offers aframework for approaching comparative company law. Part III provides an example of usingfunctional definition to demarcate the topic "company law", offering an "effects" test to determinewhether a given provision of law should be considered as functionally part of the rules that govern thecore characteristics of companies. It does this by presenting the relevant company law statutes andrelated topical laws of Germany, the United Kingdom and the United States, using Delaware as aproxy for the 50 states. On the basis of this definition, Part IV analyzes the system of legal functionsthat comprises "company law" in the United States and the European Union. It selects as thepredominant factor for consideration the jurisdictions, sub-jurisdictions and rule-making entities thathave legislative or rule-making competence in the relevant territorial unit, analyzes...