Publication Type

Journal Article

Version

acceptedVersion

Publication Date

1-2012

Abstract

This Article uses the derivative action in Asia as a lens for re-evaluating the foundational theories of Asian and comparative corporate law. It begins by demonstrating that the cultural theory of “Asian non-litigiousness” provides scant explanatory or predictive value for either the evolution or function of the derivative action in Asia’s leading economies. As such, this Article suggests that the theory of Asian non-litigiousness should be relegated to the dustbin of academic history. Without the black box of Asian culture to erroneously explain away potential differences between “Asian” and “Western” derivative actions, the reality of the derivative action in Asia’s leading economies becomes markedly more important. It allows evidence from the derivative action in Asia to be used as a valuable litmus test for three of comparative corporate law’s most important theories which all claim universal applicability (the three “grand universal theories”). This Article demonstrates, using evidence from the derivative action in Asia, that the claim of universal applicability, which under-pins the grand universal theories, is erroneous. Indeed, this Article turns the grand universal theories on their heads by demonstrating that they not only fail to explain the derivative action in Asia but also terribly mislead. As such, this Article concludes by suggesting that comparative corporate law should replace its lust for grand universal theories with a quest for understanding (rather than avoiding) the complex reality that is inherent in comparative corporate law.

Keywords

Derivative actions, shareholder litigation, comparative corporate law, comparative corporate governance, Asian culture, economic rationality, irrational behavior, legal origins, leximetrics, LLS&V, convergence, path dependence, comparative law, Japan, China, India, Korea, Singapore, Taiwan

Discipline

Asian Studies | International and Comparative Education

Research Areas

Asian and Comparative Legal Systems

Publication

Berkeley Business Law Journal

Volume

9

First Page

1

Last Page

28

ISSN

1548-7067

Publisher

University of California, Berkeley School of Law

Comments

▪ Reprinted in, MARCO VENTORUZZO ET AL., COMPARATIVE CORPORATE LAW (WEST ACADEMIC PRESS, 2015) ▪ Reprinted in, 17 JOURNAL OF JAPANESE LAW 21-49 (2012) ▪ Translated into Chinese and reprinted in, 22 COMMERCIAL LAW REVIEW 139-158 (2012) ▪ Short two-part condensed summary published in, 64.7 KEEPING GOOD COMPANIES 435-438 (2012); 67.8 KEEPING GOOD COMPANIES 483-485 (2012) ▪ Short summary of Article published online in, THE BERKELEY CENTRE FOR LAW, BUSINESS AND THE ECONOMY JOURNAL, THE NETWORK

Additional URL

https://lawcat.berkeley.edu/record/1125564/files/fulltext.pdf

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