Fixing the misalignment of the concession of corporate legal personality

Research output: Contribution to journalArticlepeer-review

Abstract / Description of output

The nature of separate legal personality is a perennial debate in corporate law. This article uses insights from a previous iteration of the debate to argue that separate legal personality is best seen as a two-step process: it is a concession from the state to something real. That real thing is the economic concept of the firm, which has been recently debated within institutional economics. Viewing separate legal personality as a two-step process lets us explore whether the concession of separate legal personality is operating as it should. Law imposes no prerequisite requirement that a firm exists to allow a company, nor limits firms to only one company. Law thus facilitates misalignments between the firm and the company. Such misalignments will only occur if two constituencies within the company structure – the ultimate shareholders and directors – consider it in their interests to create such misalignment. As a result, these misalignments harm third parties by allowing risk to be exported to them through opportunistic misalignment. This article then explores the methods of misalignment and reviews current legal tools which are available to be deployed to re-align the company to the firm, and argues that they should be deployed.
Original languageEnglish
Pages (from-to)443-460
Number of pages18
JournalLegal Studies
Issue number3
Early online date10 Jan 2023
Publication statusPublished - Sept 2023

Keywords / Materials (for Non-textual outputs)

  • company law
  • separate legal personality
  • nature of the firm
  • concession theory
  • real entity
  • state gift


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