Friday, November 24, 2017

"The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age"-- PPT of Presentation at the International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics

(Pix © Larry Catá Backer 2017)

I was delighted to have been given the opportunity to participate a marvelous conference held in late October 2017 at the Shanghai University of Finance and Economics School of Law SUFE Law School Commercial Law Center. A great group of scholars from the U.S., China, Europe and Australia gathered together to speak to emerging issues of corporate law. The contributions were excellent, enriched by the commentary from scholars from different legal systems and cultures, and the discussion that ended each panel. (More on the Conference HERE). Thanks again to Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law, who along with Kent Greenfield, Professor, Boston College Law School organized this Conference.

I presented a paper entitled The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age.

Abstract: two once distinct approaches to the definition and construction of the solidity of the corporation have begun to merge in interesting ways. On the one side the doctrines that disciplined asset partitioning—veil piercing and Agency— have begun to be used to fashion new laws of multinational corporations, of enterprise, and to invest these new firms with responsibility. These responsibility range from the traditional liability to the imposition of monitoring and compliance obligations, especially when aggregated with emerging understanding of fiduciary duty. On the other hand, the doctrines that defined corporate autonomy have begun to shift in odd ways, at once solidifying the enterprise as a source of the production of speech and at the same time eviscerating solidity where shareholder seek to assert religious rights. In both cases the overlay of emerging human rights, compliance, corruption and security discourses have driven these changes. Together these movements simultaneously reify and disintegrate the traditional corporation with and into others—the multinational enterprise, the production chain, the contract, the polity, and the Church. This presentation attempts a preliminary consideration of these trends. The first section briefly maps the trends. The second section attempts to explain and order the trends, suggesting implications for the future of global discourses on corporate personality and autonomy. Together the move toward a la carte corporate personality suggests both the possibility of constructing the legal contours of a "multinational" enterprise than might exist for some purposes but disappear into its component parts for other purposes. 
This is very much a preliminary work.  It tries to put together strains of corporate law that tend to "mind their own business" and yet which seem to speak to the same issue--the transformation of the way in which corporate law appears to be beginning to think about the consequences of corporate personality and its relation to the integrity of the corporate form and the protection of the integrity of the corporate institution. These are potentially critical developments for the constriction of corporate groups or of the elusive transnational corporation as an object of regulation and as a vessel for imposing responsibility and liability. Like the image at the top of this post, the emerging doctrines appear to produce a dynamic approach to corporate integrity; sometimes the outer shell is the only solid thing in the image, and sometimes that outer shell disappears and it is the structures below that become solid.

The PowerPoints follow.  They may also be accessed ENGLISH HERE; 中文版 .

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