1.3 Functional convergence

is shareholderor stakeholder-focused, performance standards have become global; Gilson refers to this phenomenon as ‘functional convergence’. At the same time, very little convergence of form can be observed. ‘Form’ in this context constitutes ‘strong financial intermediaries’ in the German and Japanese system and a strong ‘stock market’ in the US system.23 Another example Gilson gives addresses ways in which minority shareholders can be protected. It is, for example, possible to protect them either through a mandatory bid rule under takeover regulations or by a strict rule against self-dealing by management. If both of these approaches provide adequate protection, functional convergence will have occurred despite their quite different institutional features – one protecting minority shareholders by assuring them an exit route from their position, the other protecting them in the continuation of their position.24 Functional convergence occurs when existing governance institutions are flexible enough to respond to the demands of changed circumstances without altering the institutions’ formal characteristics. Formal convergence occurs when an effective response requires legislative action to alter the basic structure of existing governance institutions.25 Convergence of function will occur first because convergence of form is more costly; new institutions require new investment, and existing institutions will be supported by related interest groups that render more difficult any necessary political action.26 Gilson predicts that globalisation will create a mixed bag of formal, functional and hybrid convergence, with the particular outcome being quite sensitive to local conditions.27

1.4 Summary of the analysis

The contributors to the debate presented in sections 1.1–1.3 try to ascertain whether the forces of globalisation are stronger than politics, economics, culture, social and commercial norms, or legal mentality.

23Gilson, ‘Globalizing Corporate Governance: Convergence of Form or Function’, (2001) 49 Am. J. Comp. L. 337–338.

24Gilson, ‘Globalizing Corporate Governance’ 336–337.

25Gilson, ‘Globalizing Corporate Governance’ 356.

26Gilson, ‘Globalizing Corporate Governance’ 338.

27Gilson, ‘Globalizing Corporate Governance’ 332 fn. 14; see also John C. Coffee, Jr., ‘Convergence and its Critics: What are the Preconditions to the Separation of Ownership and Control?’, (September 2000), Columbia Law and Economics Working Paper 179, http://ssrn.com/abstract=241782.

There is a common theme underlying both the convergence and the path-dependence theories. Both sides of the argument view legal rules as a variable that may be subject to external forces but can otherwise be changed to any desired degree.

The prediction made in the debate is based upon the analysis of different modern company law regimes. No attempt has been made by the participants to determine how different legal systems have historically responded to change. Globalisation is not the first challenge with which legal systems have had to come to terms. The law has adapted to change in the past and the way in which change has occurred previously serves as a basis on which a prediction can be made as to how it will respond to globalisation.

In chapters 2–14, the English, German and Austrian law of securities will be analysed. In all three legal systems, securities law has adapted to significant change, from their inception to the present day.

The first challenge the law had to overcome was the emergence of securities as instruments that were issued to the general public with a view to their circulating among investors. The emergence of these instruments was an international phenomenon. Securities appeared at around roughly the same time in different jurisdictions – including England, Germany and Austria. The instruments served the same principled purposed in all those jurisdictions, and the law supported this purpose. This did not, however, lead to identical rules across jurisdictions; the law adapted domestic legal doctrine to facilitate the needs of both issuers and investors.

When securities first appeared, paper documents were used to carry out transfers. All the jurisdictions analysed in this book experienced the need to eliminate paper at some point in time in their legal development; they all adapted by creating a transfer method that did not require paper to be physically moved. The way in which this reform was carried out was, again, determined by the legal doctrinal rules that were already in place.

In the following chapters, the English, German and Austrian securities law will be analysed in order to provide a comparative account of the legal rules currently in place in the three jurisdictions. The book will also examine the historical legal background from which the current law has evolved, to show that whenever the law adapted to a new challenge, incumbent legal doctrine determined the form in which law reform was carried out. New law is not created from scratch, but by way of revising and modifying existing legal rules.

English law will be examined in part I. German and Austrian law will be analysed in part II. Based on the comparative analysis of the three jurisdictions, some conclusions will be drawn in part III, which will also contain an analysis of the implications of these conclusions for the convergence versus path-dependence debate and also for the possible creation of a harmonised European legal regime.