The SEC’s proposed climate disclosure rule has generated substantial controversy. Among the concerns raised by commentators is that the rule is unnecessary because investors can obtain sufficient climate-related disclosure throughprivate ordering. We examine one mechanism for private ordering–the shareholder proposal rule. We empirically analyze shareholder proposals requesting environmental and social disclosures during the 2021 and 2022 proxy seasons. Contrary to some assertions, we find that investors submitted hundreds of these proposals, many of which received substantial levels of investor support. We further note the significant number of proposals that are settled and withdrawn, indicating, in many cases, that the issuer committed to providing the requested disclosure. We conclude that there is substantial investor demand for greater sustainability disclosure. In modifying the mandatory disclosure regime, the SEC should look to shareholder proposals as a source of guidance and seek to complement these private ordering efforts.

The aim of this chapter is twofold. First, it is a comparative study on the potential benefits and limitations of applying fiduciary law in a “hard case.” This analysis is inductive in nature. It aims at contributing to a better understanding of fiduciary law doctrines in both common and civil law jurisdictions. Second, the chapter focuses on specific transnational processes that may shape fiduciary norms. In particular, it analyzes the influence of transnational private ordering on the establishment of fiduciary duties in state law.

This introduction presents the book’s framework for the study of the transnational legal ordering of fiduciary law. It notes the key conceptual tools of TLO theory (such as normative settlement and the recursivity of law) and explains how these tools bear upon analytic, normative, and sociolegal inquiries into transnational fiduciary law. The introduction discusses the role of framing problems in fiduciary terms in transnational legal ordering, the potential, but uneven, formation and institutionalization of fiduciary law transnationally, the recursive, transnational development and limits of fiduciary law over time, the conceptual frontiers of transnational fiduciary law, and the contributions of the book’s chapters. The conclusion presents the book’s principal findings regarding fiduciary law and its relation to theorizing transnational legal ordering.

American politics has become sharply polarized. Partisan deadlock has prevented the addressing of critical public policy issues. A prime example is Congress’s inability to pass campaign finance legislation. Corporations spend unlimited amounts of company funds to promote management’s preferred candidates without disclosure. The distortive effects of large unaccountable corporate political expenditures are evident, and the opportunity for corrupting our politics is clear. In addition, large undisclosed corporate contributions pose a threat to a well-functioning marketplace and democracy. This chapter addresses the challenge of addressing corporate political spending through the informal, non-state suasion and advocacy of the nonprofit Center for Political Accountability. CPA is a case study in successful private ordering, prompting S&P 500 companies to disclose corporate political spending; develop policies that will ensure good compliance and governance; adopt codes of conduct to reflect and inspire pro-accountability behavior; and successfully compete with other firms for best disclosure and accountability practices.

This chapter offers a discussion of the nature of private ordering, followed by an overview of the arguments offered for and against the legal enforcement of agreements -- both arguments about that go to private ordering generally and arguments specific to family law agreements.

This chapter examines the relationship betweenprivate ordering/self-regulation and national contract law rules. It assesses the impact that private ordering exerts upon national contract law, with particular reference to the legal response to the ISDA Master Agreement. The chapter also examines aspects of market-specific regulation in the United Kingdom. Many areas traditionally covered by common law rules, such as the control of unfair terms in contract, are now the preserve of regulators such as the Financial Conduct Authority (FCA) and the Competition and Markets Authority. In addition to the activities of regulators, enforcement of consumer contract law can be undertaken by a range of organisations and dispute resolution services provided by private entities or through various ADR schemes. There are often significant divergences between the regulatory approach to contract enforcement and the applicable contract law rules on the issue. To illustrate this, the FCA review of the mis-selling of interest rate hedging products to ‘unsophisticated’ customers is contrasted with case law on misrepresentation covering the corresponding scenario under the common law.

In this chapter we will examine how key institutions were mobilized to shape China’s early modern business practices under weak state engagement of the economy, and a growing foreign presence. Business practices in the late imperial period rested on four pillars, each a fundamental part of the institutional framework that structured social and economic life. The first, family, provided templates for the utilization of capital and labor and the mobilization of trust, tools that proved as useful for China’s late imperial commercial economy as for the early modern economy of industrial enterprise and global engagement. The second might be termed the system of private ordering that served generations of Chinese merchants and others in combining capital and establishing the terms of economic interaction, often through written contracts whose provisions established highly flexible forms of partnership that continued to form the basis of most Chinese business until the early PRC. The third, native place, in significant ways mirrored the intangible assets provided by ties of kinship, offering a predetermined basis for co-operation, nurturing and protecting group interests and skills and, like the fourth, grounding these intangibles in very tangible organizations catering to inhabitants of a particular city, region, or province.

This chapter discusses China’s legal system and governance environment. In terms of its legal system, China is weak when it comes to developing a rule-based governance structure in which the laws are independently and impartially enforced. The author will review what hinders China’s legal development from cultural, economic, and political perspectives. The author’s central argument is that in the absence of a rule-based system, China has been relying on a relation-based system in which transactions and disputes are governed by private relationships. Understanding relation-based governance is key for foreign investors to protect their interests. The author addresses under what conditions the relation-based system can be efficient, and whether it will be replaced by the rule-based system in China.

This chapter describes the economic incentives that are present in the private equity paradigm, and contrasts those with other ownership structures.It uses those incentives, combined with theories of the firm described in Chapter 1, to make some predictions about the behaviours of private equity investors and the mechanisms they will design for their portfolio companies.

A panoptic overview of current governing practices evidences an expansive role of private regulation in a significant range of crucial public policy issues. Whether at the domestic, regional or global levels, such a phenomenon has increasingly become perceived as a conundrum, if not an overall crisis, for modern paradigms of legal and political authority. Building upon the array of case studies that the phenomenon has already elicited, this paper advances four interrelated arguments. First, descriptively, it contends that the administrative state has experienced a large-scale transformation due to the proliferation of a varied, multifaceted and fast evolving range of private regulatory practices. Second, methodologically, after mapping the way these private regulatory practices have been conceptualised in post-national legal theories, it conveys the importance of moving beyond the state of the art by adopting a phenomenological approach to contemporary legal orderings. Third, drawing upon comparative analysis of competition law, it distinguishes two broad models that have emerged to address the private regulation phenomenon: (i) the private ordering model, predominant in the US; and (ii) the private police powers model, predominant in the EU, which, I claim, could be productively understood from a doctrinal perspective as an emergent private administrative law. Finally, at a normative level, I conclude positioning such a private administrative law model as a distinctive conceptual framework to reflect upon the place, role and the very significance of law within a landscape of contemporary political economies characterised by an expanding topography of private regulators.