The Future of The Anatomy of Corporate Law for Asia: A Forward Looking Critique - The Anatomy of Corporate Law: A Comparative and Functional Approach. Third Edition. by ARMOUR John , ENRIQUES Luca , et al. Oxford: Oxford University Press, 2017. xvii+281 pp. Hardback: GBP 60.00; Paperback: GBP 24.99.
1.Skeel, David A, ‘Corporate Anatomy Lessons’ (2004) 113Yale Law Journal1519, 1577.
2. When referring to The Anatomy of Corporate Law as a whole comprising all its editions, we use the term ‘the Anatomy project’ or simply ‘Anatomy’. When referring to a specific edition, we add the edition number in Roman numerals.
3. Namely Kraakman, Davies, Hansmann, Hertig, Hopt, Kanda, and Rock.
4.Anatomy III, vii.
5. In full, Kraakman, Reinieret al, The Anatomy of Corporate Law: A Comparative and Functional Approach (2nd edn, Oxford University Press2009).
6. Mariana Pargendler (Brazil) and Wolf-Georg Ringe (Germany).
7. Sofie Cools (Belgium) and Gen Goto (Japan).
8.Anatomy III, ix.
9. No small feat in and of itself, as the Preface notes in a delightful paragraph, ‘… not only coordinating [academics’] efforts but pruning and revising their prose is analogous to grooming cats while persuading them to march in parade formation’: Anatomy III, ix. We am sure readers will agree with us for feeling very glad that the feline procession turned out so well.
10. See eg Anatomy III, 92-94, 107-108.
11. The literature is legion; for just one relatively well-rounded discussion touching on both the United States and Europe, see Conley, John M and Williams, Cynthia A, ‘Engage, Embed and Embellish: Theory Versus Practice in the Corporate Social Responsibility Movement’ (2005) 31Journal of Corporation Law1. CSR is particularly popular in the Australian corporate law scene – and has been for some years.
12. Thus finally addressing Skeel’s critique of Anatomy I: see Skeel (n 1) 1569-1577.
13. As with many other themes, state ownership is discussed at many points in the book; see eg Anatomy III, 96-97.
14.Anatomy has, in this regard, always been an exception; English-language book reviews of Anatomy II were published in at least two leading continental European corporate law journals.
15. To this end, we derive further encouragement from Kraakman’s self-characterization of the first generation to which he belonged as the ‘supervisory board’; we have every confidence that a corporate analogy would be very much in the spirit of the authors.
16.Anatomy III, 1-28.
17.Anatomy I, 4; Anatomy II, 4-5; Anatomy III, 4.
18.Anatomy III, 3.
20.Anatomy III, vii.
22. This figure includes non-state jurisdictions with their own separate corporate law regimes such as Hong Kong.
23.Anatomy III, vii.
24.Anatomy I, ch 2.
25.Anatomy III, 272 (‘we can say that this book’s theoretical framework, building upon the key elements of the corporate form and the strategies used to address agency problems in the corporate enterprise, will continue to be relevant as new questions emerge and old ones resurface.’).
26. See eg Lim, Ernest, ‘Corporate Law, Private Law and Instrumentalism’  Lloyd’s Maritime and Commercial Law Quarterly541, 557-558 (‘it is obvious that the grounds on which the courts have lifted the veil are centred on rights, obligations, wrongdoing and honesty, rather than efficiency or wealth-maximisation … Considerations of efficiency and wealth-maximisation played no role at all in the court’s reasoning in [Prest v Petrodel Resources Ltd  UKSC 34;  2 AC 415].’).
27. As Anatomy III has conceded: Anatomy III, 4.
28. With the possible exception of the United States, where judges such as Richard Posner openly apply law and economics approaches in judicial decisions.
29. As Payne noted, Anatomy II used more empirical literature than Anatomy I: Payne, Jennifer, ‘Review of The Anatomy of Corporate Law: A Comparative and Functional Approach’ (2010) 11European Business Organization Law Review477, 479.
30. While this conception of ‘law in action’ may be unorthodox, it is trite that doctrinal reasoning has and will continue to play a dominant role in legal practice.
31.Anatomy III, 42, 73-74.
32. See eg Cheng-Han, Tan, Puchniak, Dan W and Varottil, Umakanth, ‘State-Owned Enterprises in Singapore: Historical Insights Into A Potential Model for Reform’ (2015) Columbia Journal of Asian Law61.
33.Anatomy III, 271.
34. As seems to be the position implicit in Anatomy III: see Anatomy III, 272.
35. German language sources are a notable exception, but few, if any, Japanese-language sources are cited in support of propositions on Japanese law.
36. See, e.g. Fleischer, Holger, Kanda, Hideki, Kim, Kon Sik and Mülbert, Peter (eds), German and Asian Perspectives on Company Law (Mohr Siebeck2016); Puchniak, Dan W, Baum, Harald and Nottage, Luke (eds), Independent Directors in Asia: A Historical, Contextual, and Comparative Approach (Cambridge University Press2017) (forthcoming).
37. Even Gérard Hertig, the sole co-author from the first two editions whose home jurisdiction is not represented in Anatomy, hails from wealthy and developed Switzerland. Sofie Cools of the third generation is from Belgium – also a developed jurisdiction by almost every measure.
38.Anatomy III, vii.
39. Some improvement in the quality of English-language writing, unfortunate and unfair as it may be in an English-dominated world, must be made a priority.
40. Strongly hierarchically-minded jurisdictions (and academics) may find this a difficult adjustment, but adjust they must if they are to retain any credible commitment to knowledge and scholarship.
41.Anatomy III, vii.
42. To be fair, Anatomy III has not specifically claimed itself to be jurisdiction-neutral (as opposed to neutrality on ‘legal policy debates’: Anatomy III, viii), but this is nonetheless a desirable aspiration consistent with Anatomy’s self-definition as an ‘international’ work.
43.Anatomy I and Anatomy II did not make clear on its face who held the leadership positions, but given that Kraakman and Hansmann were credited with the introductory and framework chapters (Anatomy I, ch 1-3; Anatomy II, ch 1-4), it seems fair to attribute overall direction and leadership to them.
44. Kraakman, Hansmann, and Armour all received degrees in law from Yale.
45. As the Hogan Lovells Professor of Law and Finance and the Allen & Overy Professor of Corporate Law respectively.
46. Just as board diversity is a continuing agenda for corporations.
47. Cf Anatomy III, 267 (‘A short book deserves a short conclusion.’).
48. Or more tragically, interrupted by premature death, as was the fate of Michael Whincop, a (potential) Anatomy author who sadly never was. See eg Whincop, Michael J, An Economic and Jurisprudential Genealogy of Corporate Law (Ashgate2001) (applying a law-and-economics framework to the analysis of Anglo-Australian corporate law).
49. Cf Miranda, Lin-Manuel, ‘The World Was Wide Enough’ in Hamilton (Original Broadway Cast Recording) (Atlantic2015).
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