Judging Corporate Law was the subject of a Law and Finance roundtable held at St Hildas College on Friday 10 June. The roundtable was hosted by Oxford Universitys Faculty of Law, and jointly organised with the University of Pennsylvania Law School.
The roundtable featured a rather extraordinary line-up of judges from the Delaware and English bench, including Mummery LJ (Court of Appeal), Steele CJ (Delaware Supreme Court), Lewison J (Chancery Division, High Court), Jacobs J (Delaware Supreme Court), Briggs J (Chancery Division, High Court), Chancellor Chandler (Delaware Court of Chancery), Vice Chancellor Laster (Delaware Court of Chancery), Sales J (Chancery Division, High Court), David Richards J (Chancery Division, High Court; Vice-Chancellor of the County Palatine), and Stephen Lamb (former Vice Chancellor of the Delaware Court of Chancery), together with Charles Crawshay (Deputy Director General, Takeover Panel).
The purpose of the roundtable was to consider and compare the treatment of core company law issues in the Delaware courts and the English courts. With this purpose in mind, the roundtable was divided into five sessions, two relating to aspects of directors duty of care, two relating to aspects of directors duty of loyalty, and one relating to takeover issues. For each session, two significant cases were chosen for discussion, one handed down by a Delaware court, the other by an English court. Two judges were responsible for each session: one drawn from the Delaware bench, the other from the English bench (and, for the takeovers session, from the UK Takeover Panel). The English judge in each session was asked to focus on the Delaware case, and the Delaware judge on the English case.
Each judicial discussant was asked to consider one question: if the case had been litigated in their home jurisdiction, how would it have been argued and decided? This approach focused the discussion, encouraging participants to identify the specific rules of law and procedure that would likely govern the treatment of similar facts in their home jurisdiction. This, in turn, encouraged participants to consider not only formal differences between the two jurisdictions (such as, for example, the classification of directors duties, or the treatment of contractual arrangements to exclude liability for breach of duty) but also to consider the extent to which these differences were in practice likely to produce different results: that is, participants were invited to move beyond formal differences to identify functionally equivalent rules. This yielded a unique and extraordinarily insightful set of contributions. Other participants, including senior practitioners and academics from both the UK and US (among them, Charles Randell of Slaughter and May, Professor Ronald Gilson of Columbia Law School, Professor Edward Rock of University of Pennsylvania Law School, Professor John Armour of the Oxford Law Faculty, and Professor David Kershaw of the LSE Department of Law), also made significant contributions to the debate. The overall result was a lively and productive exchange of ideas between the two jurisdictions.
Particular thanks are owed to the judicial participants who so generously agreed to share their time and insights.