Cosa si intende per "effetto Delaware"

[FaGal]

THE DELAWARE-EFFECT
The US legal system traditionally views company law in general as a
local matter reserved to the states’ governments.13 Consequently, the
corporation statutes of some states may differ appreciably from those of
most other states on many critical matters. Once US business owners
decide to incorporate, they must select an attractive state of
incorporation. Under traditional conflict-of-law rules,14 courts will
respect this choice even if the corporation in question has no other
contact with the chosen state. The corporate laws of the incorporating
state govern the basic rights and duties of a corporation and its
participants.At the end of the 19th century, New Jersey and Delaware, concerned about incorporation decisions, adopted modernized general incorporation statutes.15 Eventually, Delaware’s statute made it the leading
incorporation state in the United States since the 1920s,16 presently
serving as the state of incorporation for nearly half of the corporations
listed on the New York Stock Exchange and more than half of all
Fortune 500 firms.17 In addition, Delaware is also the leading destination
for firms that opt to reincorporate. Clearly, Delaware’s value to
incorporating firms is more than an up-to-date statute. The possibility of
other states rapidly free-riding on the efforts and resources of the
Delaware legislature by copying its statute would entail Delaware’s lead
being exhausted in a very short period of time.18 For instance, the less
easily replicated judicial expertise and other enduring advantages, such
as a well-developed corporate case law, learning and network benefits,
herd behavior,19 and the superiority of Delaware’s specialized chancery
court, arguably preserve Delaware’s leading position over time.20
Delaware’s corporate law plays a key role in the evolution of
companies in the United States, because Delaware law provides an
alternative set of rules which serve firms and their legal advisers across
the country. Consequently, many commentators have dealt with the
vexed question of whether the choice of Delaware’s corporate law
eventually leads to value maximization. In other words, is regulatory
competition better described as a ‘race to the bottom’ or as a ‘race to the
top’?
Some commentators continue to point to possible shortcomings of the
competitive process that ensue from the divergence between the interests
of managers and public shareholders.21 In their view, the development of
state anti-takeover legislation perfectly exemplifies the shortcomings of
regulatory competition. Because of the ability of firms’ management to
capture state legislation, states (including Delaware) have developed
anti-takeover statutes and judicial decisions permitting the use of
defensive tactics that are overly protective of incumbent managers at the
expense of shareholders.22 If the possibility of shareholder exit by tender
to a hostile offeror is severely threatened, market mechanisms cannot
adequately align the interests of managers and shareholders. By
providing a constant and credible risk of hostile acquisitions, the
takeover market creates a powerful incentive for managers to restrain
from managerial self-dealing. Assuming that the ‘market-for-corporatecontrol’
is economically efficient in that it increases firm value,
regulatory competition has serious implications for the race-to-the-top
thesis. Consequently, according to this argument, mandatory federal
rules should at least ensure that the market for corporate control remains
active, robust, and competitive.23
It is doubtful, however, that US company laws will be placed under
federal jurisdiction in the near future. Although it is conventional
wisdom among US scholars that regulatory competition produces a raceto-
the-top with respect to some areas of corporate law,24 it certainly has
its flaws. First, states do not pursue regulatory competition solely by
offering rules that meet their clients’ needs. High-powered interest
groups within a particular state induce the competitive process because
of considerable tangible benefits. It has been argued that Delaware’s
corporation law is devised to maximize the amount of work performed
by lawyers who are members of the Delaware Bar.25 By providing
standards and ambiguous default rules rather than rules that are clear in
application, Delaware law enhances the amount of litigation in the
state.26 Delaware lawmakers thereby respond to the lobbying efforts of
in-state lawyers who are able to capture a considerable share of the
incorporating revenues, due to litigation-increasing standards.
Furthermore, since Delaware can rely on its dominant position in the
market for incorporations, it could allow itself to prevent the emergence
of optimal legal rules that would prevail in a perfectly competitive
market.27 Finally, recent empirical research indicates that regulatory
competition in the context of corporate law is imperfect as not only the
product quality, but also the location of the ‘seller’ plays a pivotal role.28
It appears that since firms display a marked home preference with
respect to company law rules, states are more successful in retaining instate
firms than attracting out-of-state business formations.29 Thus, Delaware closely resembles a monopolistic ‘seller’ possessing
market power and competitive advantages that other jurisdictions cannot
replicate.30 The increasing return mechanisms act as substantial barriers
to other states wishing to enter the market for out-of-state business
formations. Since the radical change in company lawmaking in the late
19th century, the Delaware-equilibrium has ruled. Delaware has played
and still plays a pivotal role as the national lawmaker in the US,
protecting itself from other states and federal interference by responding
to interest group pressures.31 It follows from this discussion that
regulatory competition may not automatically yield an efficient outcome.
Its legal product, however, is arguably superior to what a centralized
regime would produce.32

[FaGal]

Quanto pubblicato è tratto da questo report che sottolinea come vi sia il rischio in europa di creare situazioni analoghe laddove non si pervenga ad un'armonizzazione della disciplina societaria sia sotto il profilo legale che tributario

http://papers.ssrn.com/sol3/papers.c...ract_id=693421

[FaGal]

Un esempio

Delaware Versus Texas Corporate Law: How Does Texas Compare?

http://www.hbtlj.org/content/v03/v03Rojosn.htm

Bisogna tendere all'armonia legislativa...