理论路径依赖与功能收敛:以投资证券为例

Eva Micheler
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引用次数: 2

摘要

全球化对大多数国家的商业运作方式产生了重大影响。在国际层面上竞争的需要导致公司调整他们的商业实践,以适应他们认为最有希望在全球经济中取得成功的战略。全球化不仅影响了商品和服务市场,也影响了金融市场。公司寻求通过在多个司法管辖区销售其证券来满足其对资金的需求。与此同时,投资者寻求通过购买外国公司的证券来分散投资组合。金融市场已经成为全球市场。这一发展是比较法领域一场学术辩论的主题,本文将对此进行分析。该领域当前讨论的话题之一是,随着经济全球化,法律体系是否会趋同。本次讨论的重点是公司治理。这场辩论的中心焦点是,推动全球化的经济力量,还是政治或文化等其他力量,在塑造公司法的未来方面更有影响力。尽管对这些各自因素的影响有不同的看法,但本文所考察的学术观点认为,法律是一个变量,是各自其他非法律驱动力的函数,可以在任何理想程度上进行改变。本文对这一基本假设提出了挑战。它认为,法律的发展不仅仅是外部力量的作用。法律发展和法律改革在很大程度上取决于某一特定法律制度的理论框架。可以肯定的是,本文并没有提出法律不受外力影响的观点。然而,它认为,法律学说塑造了未来法律发展的内容。本文还认为,法律原则决定了在特定的法律制度中出现何种类型的市场基础设施。本文将通过一个与投资证券法有关的案例来说明本文的主题。之所以选择投资证券法作为这样一个案例研究,是因为近年来,该法律受到趋同的压力,其程度可能比公司治理规则更大。尽管如此,到目前为止,关于趋同/路径依赖的争论忽视了公司法的这一分支。本文试图填补这一空白。本文将通过对投资证券相关法律的案例分析来阐述本文的观点。案例研究的结果指出了法律趋同的普遍障碍,这种障碍不仅影响投资证券法,而且影响一般公司法。本文的结论是,趋同仍然是可能的,但只有与现任法律原则一致。由于法律制度受到法律学说的限制,它们只能在功能层面上趋同。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Doctrinal Path Dependence and Functional Convergence: The Case of Investment Securities
Globalisation has significant effect on the way business is done in most countries. The need to compete on an international level causes companies to adjust their business practice to whatever they believe to be the most promising strategy for succeeding in a global world economy. Globalisation has not only affected the markets for goods and services, but also financial markets. Companies seek to satisfy their need for capital by marketing their securities in more than one jurisdiction. At the same time, investors seek to diversify their portfolios by buying securities in foreign companies. Financial markets have become global markets. This development is subject of an academic debate in the field of comparative law which will be analysed in this paper. One of the current discussion topics in the field is whether, with globalising economies, legal systems converge. The focus of this discussion is corporate governance. The central focus of the debate is whether the economic forces driving globalisation or other forces such as politics or culture are more influential in shaping the future of corporate law. Notwithstanding the differences in view on the influence of these respective factors, the scholarship examined in this paper views the law is as a variable that is a function of respective other non-legal driving forces and that can be changed to any desirable degree. This paper challenges this underlying assumption. It argues that legal development is not simply a function of external forces. Legal development and law reform are to a significant degree determined by the doctrinal framework that is in place in a particular legal system. To be sure, the paper does not put forward the view that the law is independent of external forces. It nevertheless argues that legal doctrine shapes the content of future legal development. The paper also argues that legal doctrine determines what type of market infrastructure emerges in a particular legal system. The thesis of this paper will be illustrated by a case study relating to the law of investment securities. The law of investment securities has been chosen for such a case study because it has, in recent years, been subject to pressure for convergence perhaps an even larger extent than the corporate governance rules. Notwithstanding this, the convergence/path dependence debate has so far neglected this branch of corporate law. This paper attempts to fill this gap. The thesis put forward in this paper will be illustrated by a case study analysing the law relating to investment securities. The findings in the case study point to a general obstacle to the convergence of laws that affects not only the law of investment securities but corporate law in general. The paper concludes that convergence is nevertheless possible but only consistently with incumbent legal doctrine. Because legal systems are restricted by legal doctrine, they can only converge on a functional level.
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