In this chapter, we suggest an explanation for why the two core jurisdictions of the common law world have developed so differently in this respect. We argue that only in the US fiduciary duties are typically enforced by the courts, whereas in the UK, corporate law enforcement is typically left to ex ante monitoring by outside directors and institutional investors. Only courts, in applying an ex post substantive assessment, are capable of implementing a complex “standard” for corporate opportunities. Institutional enforcement, as in the UK, lends itself better to a hard-and-fast rule. We suggest that this distinction is only an example of a larger distinction between the corporate laws of these two jurisdictions, and indicative of a broader difference in how corporate fiduciary duties operate.
GELTER, M. et HELLERINGER, G. (2018). Corporate Opportunities in the UA and in the UK: How Differences in Enforcement Exmplain Differences in Substantive Fiduciary Duties. Dans: Research Handbook on Fiduciary Law. 1st ed. Edward Elgar Publishing Ltd, pp. 331-352.