About the book
While corporate groups have been the preferred structure to pursue economic activities since the 1920s, the legal literature on their existence has been scarce. The obvious reason being that corporate groups in most jurisdictions’ mere represents a collection of legal entities tied together by a dominant influence of one company over another through a majority shareholding. Such representation, however, has led us to the recognition of a vast divergence between business reality where affiliated entities engage in concerted actions in order to pursue a common business purpose, and regulatory applicability of anything else than fractions of what group-activities may represent.
The divergence between reality and regulatory applicability comes to a head when we are to look at the concept of control. Even though corporate control is the precondition for any group-affiliation, the concept has to a limited extent been subjected to scrutiny and systematization. And without a foundation understanding of the various forms of corporate control, including equity and non-equity means of control in addition to formal and informal control through instruction and coordinative means, we lack a key ingredient in order to capture group-activities in legislative means. Why is that? It is because without a clear perception of control, which informs the disclosure requirements in consolidated accounting, we are faced with a potential shadow business practice where legal entities can be controlled through alternative means of control not covered by legislation.
In this book the representation of groups is discussed and systematized through three lenses that all groups entail: identification of participating legal entities, identification of alternative affiliation-linkages and identification of various forms of internal governance. It is argued that instead of applying a strict corporate law perception of group-representation, which only to a limited extent recognize the concerted actions that groups conduct, we can better understand corporate groups by applying a systems-thinking approach. Through systems-thinking, we can better analyze groups as a representation of both affiliation-linkages and coordination through internal governance mechanisms. And by applying a broader set of criteria to recognize group-actions, we mitigate the risk of undetected shadow business practice.
This book further offers an analysis of the existing shortcomings of today’s regulation of corporate control from a corporate law, accounting law and securities law perspective, and explain how a systems-thinking approach could be applied to overcome the identified shortcomings.
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