This paper examines the interplay between selection-driven functional adaptivity on the one hand, and formal institutional persistence or path dependency on the other, that will determine whether such corporate governance convergence as we observe will be formal or functional. Five combinations of formal and functional covergence are considered:1) purely functional convergence, as with the displacement of inefficient management; 2) the use of formal tools to catalyze the breakdown of formal barriers to functional convergence as with the elimination of tax on the sale of cross holdings; 3) the need for elements of both formal and functional convergence as with the creation of the institutional infrastructure that supports a venture capital market; 4) convergence by contract as with security design or foreign stock exchange listing; and 5) convergence through regulatory competition – the hybrid of private and public ordering introduced to the European Community by the European Court of Justice's recent decision in Centros.
Center for Law and Economic Studies
Ronald J. Gilson,
Globalizing Corporate Governance: Convergence of Form or Function,
Convergence and Persistence in Corporate Governance, Jeffrey N. Gordon & Mark J. Roe, Eds., Cambridge University Press, 2004; American Journal of Comparative Law, Vol. 49, p. 329, 2001; Stanford Law & Economics Olin Working Paper No. 192; Columbia Law & Economics Working Paper No. 174
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1217