Boston College International & Comparative Law Review, Vol. 33

BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW Vol. XXXIII Spring 2010 No. 2 ARTICLE Debunking the “End of History” Thesis for Corporate Law Leonard I. Rotman [pages 219–272] Abstract: In their article, “The End of History for Corporate Law,” Henry Hansmann and Reinier Kraakman proclaimed the triumph of the shareholder primacy norm over competing progressive theories of the corporation. This Article debunks Hansmann and Kraakman’s “end of history” thesis on both U.S. and Canadian corporate law grounds. A critical exami- nation of high-profile U.S. corporate law jurisprudence indicates that the shareholder primacy norm cannot be supported, even by cases such as Dodge v. Ford and Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., which exist at the foundation of shareholder primacy arguments. Further, Cana- dian corporate law jurisprudence and the structure of Canadian corporate law statutes reveal the complete lack of support for shareholder primacy arguments north of the forty-ninth parallel, further impeding Hansmann and Kraakman’s claim. This state of affairs demonstrates that Hansmann and Kraakman’s “end of history” thesis is, at best, premature and, at worst, incorrect. NOTES Piracy Laws and the Effective Prosecution of Pirates Diana Chang [pages 273–288] Abstract: This Note analyzes the current international legal framework for the punishment and prosecution of maritime piracy. Piracy is an international problem that disrupts global maritime trade and endangers the safety and security of crewmen and ship owners. Although it is a well-recog- nized principle that each state has universal jurisdiction to prosecute pirates, the conflicting international definitions of piracy and the preponder- ance of attacks near states that lack resources to effectively prosecute pirates create a gap in enforcement within the international legal framework. This Note proposes that cooperating states should establish regional international piracy tribunals that can apply an appropriate, uniform definition of piracy while providing the judicial resources to enforce international piracy laws. From “Personal Autonomy” to “Death-on-Demand”: Will Purdy v. DPP Legalize Assisted Suicide in the United Kingdom? Carol C. Cleary [pages 289–304] Abstract: Debates over end-of-life issues and the “right to die” are becom- ing increasingly prevalent in many modern societies. In July 2009 the House of Lords addressed the question of whether the legal framework governing assisted suicide in the United Kingdom constitutes an unjusti- fiable infringement on privacy rights. The court decided that question in the affirmative, and this Note discusses the implications of Purdy v. Director of Public Prosecutions for the legality of assisted suicide in the United King- dom. This Note uses evidence of legal developments in other jurisdictions that have grounded the right to assisted suicide in personal autonomy to argue that the Purdy court’s reasoning and the Director of Public Prose- cution’s response to the decision paves the way for a gradual breakdown in restrictions on the practice. China’s Anti-monopoly Law: Protectionism or a Great Leap Forward? Britton Davis [pages 305–322] Abstract: Thirty years since China’s markets opened to the world, the Peo- ple’s Republic has seen impressive growth, in large part due to an openness to foreign investment. In 2009, China was one of few nations to experience GDP growth. With a market based on competition for the first time in dec- ades, China has begun to promulgate antitrust legislation to curb anticom- petitive behavior. The creation of an Anti-Monopoly Law in 2008 has prompted concern from outside China that the law will be used to promote a protectionist agenda, shielding Chinese domestic industry from foreign competition or investment. This Note examines the root cause of such con- cerns using a recent decision by Chinese antitrust authorities to prevent a merger between a domestic Chinese fruit juice company and Coca-Cola. This Note recommends an implementation of merger guidelines by the Chinese government in order to provide more transparency in its antitrust regime. Taming the Perfect Poison: A Comparative Analysis of the EMEA’s EPAR System and the FDA’s Improved Warning Protocol Nicholas R. Kennedy [pages 323–338] Abstract: In Europe and the United States, regulatory agencies responsi- ble for monitoring drug safety have struggled to address the health con- cerns raised by the burgeoning market for minimally invasive cosmetic procedures utilizing botulinum toxins, the active ingredients in Botox. A 2005 study published in the Journal of the American Academy of Dermatology drew attention to these shortcomings after an analysis of adverse event reports submitted to the Food and Drug Administration (FDA) linked twenty-eight patient deaths to Botox-induced respiratory arrest and myo- cardial infarction. After an independent review of adverse effects reports submitted to the European Medicines Agency (EMEA) revealed similar findings in Europe, the FDA and EMEA implemented bolstered product warnings aimed at increasing patient awareness of the drug’s health risks. This Note compares the FDA and EMEA’s heightened warning protocols and argues that the agencies’ recent efforts are unlikely to reduce the number of serious adverse events linked to botulinum toxins. “Where Is My Vote?”: Democratizing Iranian Election Law Through International Legal Recourse Tanya Otsuka [pages 339–356] Abstract: In 2009, massive demonstrations ensued in response to the al- legedly fraudulent reelection of Iranian president Mahmoud Ahmadine- jad. The Iranian government met these protests with violence, imprison- ment, and death. Yet, given the Iranian government’s structure and election law, the ability to resolve election disputes through domestic legal means is virtually non-existent. Many provisions of Iranian election law are democratically flawed, even though Iran is a party to numerous international agreements requiring free and fair elections. This Note examines the availability of international legal recourse for the provisions of Iran’s election law that fail to live up to these standards. The Note sug- gests that the international community apply multi-lateral political pres- sure to encourage Iranian election reform. Carrot or Stick?: The Balance of Values in Qualified Intermediary Reform Steven Nathaniel Zane [pages 357–374] Abstract: The qualified intermediary program allows foreign financial in- stitutions to assume certain tax responsibilities ordinarily borne by U.S. withholding agents. The purpose of the program is to collect more foreign taxpayer information by creating a more direct link between the I.R.S. and recipients of foreign income payments. By accepting more re- sponsibility, qualified intermediaries are provided numerous benefits that make business less costly. Nevertheless, the program has recently come under attack due to perceived abuse by wealthy U.S. citizens who use the system to evade income taxes. In response, the Obama Administration proposes numerous changes to the program, intended to strengthen it. But these changes fail to appreciate the balance of values at stake in re- forming the qualified intermediary system. This Note argues that until more benign changes are made, the unique jurisdictional dilemma cre- ated by the U.S. international income tax system should not be solved by shifting from a “carrot” to a “stick” approach for foreign intermediaries. DEBUNKING THE “END OF HISTORY” THESIS FOR CORPORATE LAW Leonard I. Rotman* Abstract: In their article, “The End of History for Corporate Law,” Henry Hansmann and Reinier Kraakman proclaimed the triumph of the shareholder primacy norm over competing progressive theories of the corporation. This Article debunks Hansmann and Kraakman’s “end of history” thesis on both U.S. and Canadian corporate law grounds. A critical exami- nation of high-profile U.S. corporate law jurisprudence indicates that the shareholder primacy norm cannot be supported, even by cases such as Dodge v. Ford and Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., which exist at the foundation of shareholder primacy arguments. Further, Cana- dian corporate law jurisprudence and the structure of Canadian corporate law statutes reveal the complete lack of support for shareholder primacy arguments north of the forty-ninth parallel, further impeding Hansmann and Kraakman’s claim. This state of affairs demonstrates that Hansmann and Kraakman’s “end of history” thesis is, at best, premature and, at worst, incorrect. Introduction In their provocative article, The End of History for Corporate Law, Hansmann and Kraakman asserted that as a result of their view of the profound dominance of the shareholder primacy model of corporate governance, society had witnessed the “end of history” for corporate law.1 They boldly proclaimed that “[t]he triumph of the shareholder- oriented model of the corporation over its principal competitors is now assured,”2 echoing Bainbridge’s earlier claim that “[o]ver the last few * B.A., LL.B., LL.M., S.J.D., Faculty of Law, University of Windsor; Visiting Professor, University of Denver, Sturm College of Law (2010–11). The author wishes to thank Deb- orah DeMott, Kent Greenfield, Ralf Michaels, David Millon, Wayne Norman, as well as participants in Duke Law’s Global Law Workshop on Comparative Corporate Law and Governance and workshop participants at Boston College Law School and Boston Univer- sity School of Law for their

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