Transformation of corporate law: quasi-corporate and quasi-public structures
- Authors: Novikova O.V.1
-
Affiliations:
- National Research University “Higher School of Economics”
- Issue: Vol 27, No 1 (2023)
- Pages: 181-199
- Section: CIVIL LAW
- URL: https://journals.rudn.ru/law/article/view/34064
- DOI: https://doi.org/10.22363/2313-2337-2023-27-1-181-199
Cite item
Full Text
Abstract
The purpose of the research is to study certain aspects of transformation of corporate relations and corporate law, in the light of blurring of company boundaries and development of digital communications and startup culture. The results and conclusions are obtained based on general scientific and private scientific methods of research. Research studies examples of quasi-corporate and quasi-public structures created through (1) deferred share transfer agreements (SAFE), (2) crowdfunding agreements, (3) public market intermediary companies (SPAC), (4) exchanges for private companies. With the emergence of cross-border hybrid corporate structures at intersection of debt and equity, public and private financing, the current debates on the objectives of corporate law and the purpose of the corporation acquire a new perspective, as the very boundaries of the corporation become fluid. At the same time, decision-making procedures are mediated by third parties and digital technologies, with the prospect of conflict of interest, and are regulated, among other things, by standards emerging so to say from below. In the digital era, flexibility in the choice of elements of the structure allows to detach from the current state corporate regulation and attach to it in the right place and at the right time. It is concluded that the explosive growth of hybrid structures forms new areas of development of legal regulation by rejecting the dichotomy of soft and hard law. Among the vectors of transformation, the growing importance of private law unifications, the development of theoretical apparatus based on the concept of transnational law, the emergence of its subsystems, including lex corporatoria are noted. Among the tasks of lex corporatoria the formation of standards and customs in the field of corporate finance is also postulated as a regulatory framework for functioning of the hybrid structures under study.
About the authors
Olga V. Novikova
National Research University “Higher School of Economics”
Author for correspondence.
Email: mailandlaw@gmail.com
ORCID iD: 0000-0002-0546-6059
Candidate of Legal Sciences, Associate Professor of the School of Legal Regulation of Business of the Faculty of Law
3 Bolshoy Trekhsvyatitelsky lane, Moscow, 109028, Russian FederationReferences
- Abashidze, A.Kh. & Gulyaeva, E.E. & Trikoz, E.N. (2022) Technique and practice of international rule-making: review of the materials of the ESIL International conference. RUDN Journal of Law. 26 (2), 508-527. https://doi.org/10.22363/2313-2337-2022-26-2-508-527 (in Russian).
- Adhami, S., Gianfrate, G. & Soda, G. (2018) Private Capital Marketplaces and IPOs. In: The Oxford Handbook of IPOs. Edited by Douglas Cumming. Oxford, Oxford University Press, pp. 696-719.
- Belov, V.A. (2020) International Trade Law and the Law of WTO. Moscow, Urait Publ. (in Russian).
- Bernthal, J.B. (2018) The Evolution of Entrepreneurial Finance: A New Typology. Brigham Young University Law Review. (4), 773-858.
- Ciepley, D. (2020) The Anglo-American misconception of stockholders as ‘owners’ and ‘members’: its origins and consequences. Journal of Institutional Economics. 16 (5), 623-642. https://doi.org/10.1017/S1744137419000420
- Coyle, J.F. & Green, J.M. (2018) The SAFE, the KISS, and the Note: A Survey of Startup Seed Financing Contracts. Minnesota Law Review Headnotes. (103), 42-66.
- Green, J.M. & Coyle, J. (2016) Crowdfunding and the not-so-safe SAFE. Virginia Law Review Online. (102), 168-182.
- Greenspan, R. (2021) Money for Nothing, Shares for Free: A Brief History of the SPAC. Available at SSRN: http://dx.doi.org/10.2139/ssrn.3832710 [Accessed 12th July 2022].
- Guseva, Y.A. (2021) Conceptual Framework for Digital-Asset Securities: Tokens and Coins as Debt and Equity. Maryland Law Review. 80 (1), 166-213.
- Hooghiemstra, S.N. (2020). The European Crowdfunding Regulation - Towards Harmonization of (Equity-and Lending-Based) Crowdfunding in Europe? Available at: SSRN http://dx.doi.org/10.2139/ssrn.3679142 [Accessed 12th March 2022].
- Hornuf, L., Klöhn, L. & Schilling, T. (2018) Financial contracting in crowdinvesting: Lessons from the German market. German Law Journal. 19 (3), 509-578. https://doi.org/10.1017/S2071832200022781
- Johnston, A. & Talbot, L. (eds.). (2020) Great Debates in Commercial and Corporate Law. Red Globe Press.
- Katelouzou, D. & Zumbansen, P. (2020) The New Geographies of Corporate Governance. University of Pennsylvania Journal of International Law. 42 (1), 51-153.
- Kazachenok, O.P. (2020) Raising investments on the investment platforms (crowdfunding): directions of development of legal regulation. Courier of Kutafin Moscow State Law University (MSAL). 8 (72), 74-85. https://doi.org/10.17803/2311-5998.2020.72.8.074-085 (in Russian).
- Novikova, O.V. (2022) Standardization of terms for venture transactions in the USA and the Formation of Lex Corporatoria. In: Blazheev V.V & Egorova M.A. (eds.). Actual problems of law and economics in the perspective of interdisciplinary scientific research as a form of international cooperation. Prospect Publ, 293-305. (in Russian).
- Novikova, O.V. (2021a) Standardization of M&A Transactions in the USA and Europe: Empirical Research and Conceptual Analysis. Lex Russica. 9 (178), 131-143. https://doi.org/10.17803/1729-5920.2021.178.9.131-143 (in Russian).
- Novikova, O.V. (2021b) Terms of crowfunding transactions and the formation of the lex corporatoria. Journal of Business and Corporate Law. 3 (23), 23-33. (in Russian).
- Novoselov, M.A. (2014) Application of the lex constructionis in Russia for the regulation of the international construction contract. Problems of Economics and Law Practice. (4), 104-107. (in Russian).
- Petrova, G.V. (2017) International Payment and Settlement Law: Current Development Trends. Problems of Economics and Legal Practice. (3), 105-108. (in Russian).
- Ronnegard, D. & Smith, N.C. (2018) Shareholder Primacy vs. Stakeholder Theory: The Law as Constraint and Potential Enabler of Stakeholder Concerns. Available at SSRN: http://dx.doi.org/10.2139/ssrn.3165992 [Accessed 27th July 2022].
- Shakhnazarov, B.A. (2019) Complex Interconnection of Blockchain Technology and Intellectual Property Objects in Cross-Border Private Law Relations. Law. Journal of the Higher School of Economics. (5), 121-147. (in Russian).
- Shneor, R., Zhao, L. & Flåten, B.-T. (eds.). (2020) Advances in Crowdfunding: Research and Practice. Cham: Springer International Publ.
- Sukhanov, E.A. (2014) Comparative Corporate Law. Moscow, Statut Publ.
- Vilkova, N.G. (2019) Model Contracts in the 21st Century: Present and Future In: Arbitration and Regulation of International Trade: Russian, Foreign, and Cross-Border Approaches. Liber Amicorum in Honor of the 70th Anniversary of Komarov A.S. Moscow, Statut Publ. pp. 164-165. (in Russian).
- Zumbansen, P. (ed.). (2020) The Many Lives of Transnational Law: Critical Engagements with Jessup’s Bold Proposal. Cambridge University Press.