The question of how to best organize the governance structure of corporations in order to reconcile the various interests involved in a corporation has a long history. Legal and economic scholars from around the world have debated the issue since 1937, the year economists Adolf A. Berle and Gardener C. Means identified the agency cost problem inherent in the structure of the modern corporation (i.e. the separation of control from ownership rights). / Nowadays this debate has gained an added dimension. The consequences of the increasing globalization of economies raise the question as to whether this will also lead to the harmonization of national systems of corporate governance. / More particularly, this thesis analyses the possibility and consequently the direction of convergence between the German and the American system of corporate governance, despite significant differences in their structure, mechanisms and more generally, in the micro and macroeconomic environment.

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Under the Treaty Establishing the European Community, corporations are entitled to free establishment. Recently, the European Court of Justice's Inspire Art decision has clarified its scope and has in principle introduced place of incorporation doctrine as choice-of-law rule, thus granting corporations free choice of the Member State of incorporation. In the US, free choice has caused the "Delaware Effect". This paper analyzes if Inspire Art will cause a similar development in the EU. The EU and US contexts will be compared. Germany will serve as an example. As different circumstances exist in the EU, free choice is more limited and fraught with uncertainties. The thesis of this paper is that regulatory competition in the EU is unlikely and not desirable because of cultural differences. Therefore, minimum harmonization is preferable.

This work focuses on the special problems in the context of drafting the corporate charter and bylaws for American corporations the stocks of which are mainly owned by the members of one family. Although the ownership structure would also allow a partnership organization, there can be good reasons for choosing the corporate structure. Nevertheless, the family owners will want to preserve a partnership-like structure and a maximum amount of ownership influence. However, the three-tiered structure of the corporation (board of directors, officers, and shareholders) and their individual functions are fixed by a "statutory model" that the courts tend to adhere to and that has often been written into positive corporate statutes. / Hence, for each organizational level, this work tries to fathom the permissible deviations from the statutory model in order to maintain and exercise family influence. / Furthermore, the special legal forms provided by the legislators (especially "close corporation status") will be considered. / Because American corporate law is within the province of the state legislators, the work takes a comparative approach. Guided by the criteria of practical applicability and comparative interest, the Model Business Corporation Act as well as the state laws of Delaware, New York, California, and Nevada were selected.

This dissertation presents a legal and economic history of the change in method of incorporation from special corporate charters via legislative act to general incorporation laws which make corporate privileges available to all who meet certain, minimal procedural requirements. Prior to the mid-1800's, corporate privileges were allocated by special legislative act in a market for corporate privileges. In this market, legislators had monopoly control over the use of corporate privileges within their respective jurisdictions. Thus, the issue examined is why the legislators relinquished their monopoly control. The thesis of this dissertation, stated briefly, is that legislators in both the United States and Great Britain abandoned the market for special corporate charters because events beyond their control made it difficult or impossible for them to continue to create and capture rents through the passage of special acts of incorporation. Exogenous legal and economic changes are identified and shown to be reliable predictors of the demise of special corporate chartering. In England, changes through the common law courts produced an inexpensive alternative to the corporate form and lowered the rates of return to legislators from passing special acts. In the United States, the growth of interstate commerce and an important Supreme Court decision, Paul v. Virginia, changed the legislative market for corporate privileges from one of localized monopolies into a competitive, national free market in corporate privileges. The historical experience suggests that the passage of a national incorporation law could lead to the same type of abuses that occurred prior to the development of the national free market in incorporation laws and the passage of liberal state general incorporation laws. / Ph. D.

University of Macau / Faculty of Law