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Borg-Barthet, Justin --- "Jurisdictional barriers to enforcement" [2019] ELECD 289; in Birkmose, S. Hanne; Sergakis, Konstantinos (eds), "Enforcing Shareholders’ Duties" (Edward Elgar Publishing, 2019) 259

Book Title: Enforcing Shareholders’ Duties

Editor(s): Birkmose, S. Hanne; Sergakis, Konstantinos

Publisher: Edward Elgar Publishing

ISBN: 9781788114868

Section: Chapter 13

Section Title: Jurisdictional barriers to enforcement

Author(s): Borg-Barthet, Justin

Number of pages: 22

Abstract/Description:

The substantive weaknesses discussed in other chapters of this book point to a lack of clarity concerning the nature and extent of shareholders’ duties, and ambiguous legal provision for the domestic enforcement of such obligations as do exist. The weaknesses in national substantive laws are exacerbated by the present state of transnational harmonisation. There is a lack of focused attention on specific problems arising from the corporate form, particularly insofar as the negative externalities of limited liability and separate legal personality are concerned. Coupled with intrinsic risks and costs of transnational litiga¬tion, this renders cross-border enforcement a costly and uncertain route for the attainment of justice. Essentially, the law fails to address the full spectrum of relationships arising from the corporate form in a coherent fashion, or to view significant market failures as much more than an ‘unfortunate wrinkle in the economic perfection of the law’.