Professional Documents
Culture Documents
ABSTRACT
T ABLE OF CONTENTS
Page
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 684
II. CURRENT T RENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685
A. Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685
1. Raising Capital . . . . . . . . . . . . . . . . . . . . . . . . . 686
a. Capital Markets Funding Technology . . . . 686
b. Technology Facilitating Capital Markets . . 687
2. Electronic Commerce . . . . . . . . . . . . . . . . . . . . 688
3. Investor Relations . . . . . . . . . . . . . . . . . . . . . . . 689
a. Securities Exchange Commission Rules
on Publication . . . . . . . . . . . . . . . . . . . . 690
b. Electronic Proxies . . . . . . . . . . . . . . . . . . 692
c. Electronic Consents . . . . . . . . . . . . . . . . . 693
d. Notice Requirements . . . . . . . . . . . . . . . . 693
*
Mr. Goldman is a partner with Potter Anderson & Corroon LLP and Ms. Filliben was
formerly an associate with Potter Anderson & Corroon LLP. The information in this article
is as of May 1999. Since that time a number of events have occurred including the passage of
amendments to the General Corporation Law permitting the holding of online stockholder
meetings and online voting.
683
684 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
I. INTRODUCTION
One hundred years ago, cars, televisions and computers did not exist;
women could not vote; and most people thought nothing about waiting a
month, or more, to receive their mail. Today, the Concord can make a
Trans-Atlantic flight in less than three hours; women hold two out of the
nine seats on the U.S. Supreme Court; and fax machines and E-mail have
made waiting overnight for Federal Express seem inefficient. Given how
far we have come this century, one cannot help but wonder just what
Y"2.1"K problem businesses will be grappling with 100 years from now.
This article surveys current trends in corporate governance and
theorizes on the likely impact of those trends for the twenty-first century.
Specifically, Part II provides an overview of four current trends that are
changing the way corporations do business. First, technology is reshaping
the way companies raise capital, interact with suppliers and customers, and
relate to investors. Second, the globalization of the economy is making the
world a much smaller place, and nationalism is giving way to
2000] CORPORATE GOVERNANCE 685
A. Technology
2
See Peter Burrows, et al., News; Analysis & Commentary, Cheap PCS, BUS. W K.,
Mar. 23, 1998, at 28.
3
See Daniel Everett Giddings, An Innovative Link Between the Internet, the Capital
Markets, and the SEC: How the Internet Direct Public Offering Helps Small Companies
Looking to Raise Capital, 25 P EPP . L. REV. 785, 797 (1998).
4
See id. at 798.
686 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
1. Raising Capital
There has been unprecedented growth in the U.S. economy over the
past several years, exemplified by Dow Jones Industrial Average recently
hitting an all-time high of over 11,000. In a recent speech before Congress,
Alan Greenspan, Chairman of the Federal Reserve Board, explained that
much of the success can be attributed to two things: "creative destruction"
and open global trading.6 He explained the former as follows:
5
See generally id. (describing the facilitation of business through new technology).
6
See generally Alan Greenspan, Statements to the Congress, 85 FED. RESERVE BULLETIN
187 (Mar. 1999) (discussing the U.S. economy policies).
7
Id.
2000] CORPORATE GOVERNANCE 687
8
Id.
9
See Kerry Hannon, Going Public to the Public, Small Businesses Can Bypass
Underwrit ers and Save Big Money, U.S. NEWS & WORLD REP ., June 17, 1996, at 74; Giddings,
supra note 2, at 786.
10
See Giddings, supra note 2, at 786; Hannon, supra note 8, at 74.
11
See Hannon, supra note 8, at 74.
12
See id. at 74.
13
Id.
14
See Giddings, supra note 2, at 787.
15
See Robert Frick, What Not to Buy Just Yet — IPOs on the Internet , KIPLINGER'S
P ERSONAL FIN. MAG., Mar. 1, 1999, at *36.
16
See Giddings, supra note 2, at 812.
17
See P. Mitchell Woolery, On Law, KAN. CITY BUS. J., Oct. 23, 1998.
18
See Giddings, supra note 2, at 794.
688 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
2. Electronic Commerce
19
Id.; John Welbes, West Columbia, S.C. — Based KryoTech Plans Stock Sale, KNIGHT-
RIDDER TRIB. BUS. NEWS, Apr. 2, 1999 (stating that Internet DPOs allow a company to save
the six to seven percent fee that underwriters typically charge).
20
See Giddings, supra note 2, at 794; Welbes, supra note 18.
21
See Woolery, supra note 16.
22
See Hannon, supra note 8, at 74.
23
Wit Capital: Access Creates Opportunity (visited Jan. 24, 2000)
<http://www.witcapital. com>.
24
Id.
25
See Frick, supra note 14, at 36.
26
Id.
27
See Anna Chidambar, Modern Era Transportation, MALAYSIAN BUS., Mar. 16, 1999,
at 20.
28
See id.
2000] CORPORATE GOVERNANCE 689
3. Investor Relations
Shaker A. Zahra, The Changing Rules of Global Competitiveness in the 21st Century,
29
The SEC has taken important first steps towards this goal by allowing
electronic delivery of information to investors.38 In October 1995, the SEC
published Release No. 33-7233, which described when an electronic
delivery format can be used, as well as the different implications of using
electronic, as opposed to paper versions, of documents.39
The SEC's rules on electronic delivery basically fall into four
categories. First, there must be a way to ensure that the investor is notified
that the data has been sent electronically or can be read on the Web.40 A
company must make efforts to ensure that shareholders receive adequate
notice of electronic delivery.41 For example, merely posting a document to
a Web page would not fulfill the notice requirement. On the other hand, a
notice through the U.S. mail that a document may be viewed at a Web page
could be satisfactory.42 In addition, providing the electronic document itself
by computer disk, CD-ROM, or E-mail is also sufficient notice. 43
37
Giddings, supra note 2, at 806 (quoting SEC Chairman Arthur Levitt, Corporate
Finance in the Information Age, Remarks Before the Securities Regulation Institute (Jan. 23,
1997) (transcript available at <http://www.sec.gov.news/speeches/spch135.txt>)).
38
See id. at 804.
39
See generally S.E.C. Release No. 33-7233, Oct. 6, 1995, available in 1995 SEC
LEXIS 2662 (recognizing that technology allows companies to disseminate information faster
and cheaper than before).
40
S.E.C. Release No. 33-7288, May 9, 1996, available in 1996 SEC LEXIS 1299, at
*17.
41
See id.
42
See id.
43
See id.
2000] CORPORATE GOVERNANCE 691
Second, the issuer must make sure that the investor has access to the
Web or E-mail. 44 The company must provide access to the information
comparable to paper delivery through the U.S. mail, and the method of
access cannot be overly burdensome. 45 The stockholder must also have a
method of retaining the accessed information, such as downloading a
document onto a personal computer.46
Third, the investor must be entitled to request and receive a paper
47
copy. The SEC has said that a shareholder always reserves the right to
revoke consent to electronic delivery and insist on paper copies of corporate
documents.48
Finally, the SEC wants the method of delivery of the data to be at
least as reliable as the U.S. mail, thereby providing reasonable assurance
that the delivery requirement is satisfied.49 The delivery requirement may
be satisfied by:
Delivery and notice can be assumed, however, when materials are provided
by an employer through an E-mail to employees who regularly receive
electronic communications during work.51
As a result of these changes, the vast majority of public corporations
with Web sites are publishing their annual reports on-line. Investors may
have an easier time finding the annual reports of different companies
through
44
S.E.C. Release No. 33-7288, May 9, 1996, available in 1996 SEC LEXIS 1299, at
*18.
45
See id.
46
See id.
47
See id. at *15.
48
S.E.C. Release No. 33-7288, May 9, 1996, available in 1996 SEC LEXIS 1299, at
*15.
49
S.E.C. Release No. 33-7233, Oct. 6, 1995, available in 1995 SEC LEXIS 2662, at
*19.
50
Id.
51
S.E.C. Release No. 33-7288, May 9, 1996, available in 1996 SEC LEXIS 1299, at
*37 (clarifying the issuer's ability to use a company's internal E-mail system or Web site to
disseminate required investor information to employee-shareholders without first obtaining their
consent). The SEC indicated that no advance consent was needed if (1) the company provided
the E-mail and/or Internet access; (2) the employees were expected to check their E-mail
regularly; (3) E-mail messages either provided the document or advised the employees where it
could be viewed; and (4) the employees could request a paper copy. See id. at *37-*38.
692 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
b. Electronic Proxies
52
Annual Report Service - The Public Register's Annual Report Service <http://www.
annualreportservice.com.>.
53
See id.
54
See Ronald O. Mueller, Electronic Communication in the Proxy Solicitation Process:
The 1998 Proxy Season in Review, WALLSTREET LAW ., 2 No. 5 GLWSLAW 1, at 1.
55
See id.
56
See id.
57
These terms refer to a procedure in which a record shareholder, by using a toll-free
telephone number, communicates his or her vote in telegraphic or datagram form. This practice
has become widespread among professional proxy solicitors.
58
See Michael D. Goldman et al., Online Issues In Corporate Law: The Impact of New
Technology on Investor Relations, 11TH ANNUAL TULANE CORPORATE LAW INSTITUTE, Mar.
1999.
59
ABA, DIGITAL SIGNATURE GUIDELINES: LEGAL INFRASTRUCTURE FOR CERTIFICATION
AUTHORITIES AND SECURE ELECTRONIC COMMERCE (1996). One method of encryption is the
"digital signature," an encoded message that assures the recipient of the identity of the sender.
See id. Creation of the digital signature involves encryption of the message using a "private
key" known only to the signer, and a "public key," available to anyone who may read the
sender's message. See id. Anyone who has the public key can send messages that only the
2000] CORPORATE GOVERNANCE 693
c. Electronic Consents
d. Notice Requirements
private-key owner can read, and the private key can be used to send messages that could only
have been sent by that private-key owner. See i d . Since the publication, 30 states and the
District of Columbia have enacted legislation on the use of digital or electronic signatures.
60
DEL. CODE ANN. tit. 8, § 228(a) (1998).
61
See id. § 222(a)-(b).
62
Goldman et al., supra note 57.
63
See Clyburn v. Allstate Ins. Co., 826 F. Supp. 955, 957 (D.S.C. 1993). "In today's
'paperless' society of computer generated information, the court is not prepared, in the absence
of some legislative provision or otherwise, to find that a computer floppy diskette would not
constitute a 'writing' within the meaning of § 38-75-730." Id. (footnote omitted).
694 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
64
See, e.g., DEL. CODE ANN. tit. 8, § 222(a) (1998) (requiring written notice of the time
and place of the annual meeting); see id. § 216 (stating that both quorum and the attainment
of the vote of sufficient shares depend upon stockholders being present "in person" or
represented by proxy); see also Berlin v. Emerald Partners, 552 A.2d 482, 491-94 (Del. 1988)
(discussing the distinction between quorum and voting power and stating that "[i]f a stockholder
is not present in person, and if he is not given a proxy to vote on the proposed Business
Combination, his stock cannot be regarded as 'voting power present,' for purposes of the vote
required under the supermajority provision").
2000] CORPORATE GOVERNANCE 695
B. Globalization
1. Disintegrating Boundaries
65
See, e.g., DEL. CODE ANN. tit. 8, § 141(i) (1991) (permitting members of the board
to participate "by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other").
66
Bert Roughton, Jr., The Euro Arrives, Europeans Grudgingly Give Up a Bit of
National Identity in Historic Step Toward Unity, AU S T I N A M ERICAN-STATESMAN, Jan. 3, 1999,
at G1.
67
See Greg Weatherford, Flexibility Will Be the Hallmark for Offices in the Years Ahead,
KNIGHT-RIDDER TRIB. BUS. NEWS, Dec. 28, 1998.
68
Id.
696 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
69
See id.
70
See Weatherford, supra note 66.
71
Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy,
Luxembourg, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom (collectively,
the Member States); Brian Grulke, Introducing the Euro, MA RK E T PL A CE MAG., Feb. 2, 1999
(indicating that Denmark, Sweden, and the United Kingdom have opted out of certain aspects,
including the introduction of the euro, and that Greece did not meet the European Community
economic requirements to use the euro).
Anne Thompson, Border-Crossing Neighbors Eager for Euro
72
Introduction, AUSTIN
AMERICAN-STATESMAN, Feb. 16, 1999, at D5.
73
See William F. Doescher, The Euro Rings in the New Year, CREDIT WORLD, Jan./Feb.
1999.
74
See id.
75
See id.; Roughton, supra note 65, at G1.
76
See Roughton, supra note 65, at G1.
77
See Doescher, supra note 72.
2000] CORPORATE GOVERNANCE 697
National notes and coins will be completely withdrawn by July 1, 2002, and
the euro will become the official currency in the participating EMU states.78
Eventually, it is anticipated that the euro will gain the esteem of the yen and
the American dollar.79 Indeed, there are reports that the London market is
currently unhappy at not being included in the euro market, and there are
pressures for the U.K. to join in this aspect of Europe's monetary union.80
Stage 3 also features the commencement of a single European monetary
system, with the European System of Central Banks (ESCB) imposing one
interest rate. 81
Because of increasing interdependence of global economics, the
introduction of the euro has already had, and will continue to have, ripple
effects throughout the world.82 One commentator explained the likely
advantages to the U.S. as follows:
78
Id.
79
See Grulke, supra note 70.
80
See id.
81
See Doescher, supra note 72.
82
See id.
83
Grulke, supra note 70.
84
See Doescher, supra note 72.
85
See id.
86
John Dludlu, What the Euro Means for Africa, AFRICA TODAY, Feb. 6, 1999.
87
See Grulke, supra note 70.
698 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
While not yet adopted, and controversial in many respects, the concept of
a European Company statute portends a movement towards a supranational
corporate form.
C. Corporate Monitoring
88
See Werner F. Ebke, Company Law and the European Union: Centralized Versus
Decentralized Lawmaking, 31 INT'L LAW . 961, 975 (Winter 1997).
89
Id.
90
Id.
91
See ADOLPH A. BERLE, JR . & GARDINER C. MEANS, THE MODERN CORPORATION AND
P RIVATE P ROPERTY 119-25 (1933).
92
See David A. Skeel, Jr., An Evolutionary Theory of Corporate Law and Corporate
Bankruptcy, 51 VAND. L. REV. 1325, 1326 (1998).
2000] CORPORATE GOVERNANCE 699
1. Leveraged Buy-Outs
2. Outside Directors
93
Id. at 1390.
94
See id. (referring to Kohlberg Kravis & Roberts).
95
Id.
96
E. Norman Veasey, An Economic Rationale for Judicial Decisionmaking in Corporate
Law, 53 BUS. LAW . 681, 687 (May 1998).
97
Id. at 688.
98
See Richard M. Ferry, Boardrooms Yesterday, Today and Tomorrow, CHIEF
EXECUTIVE, Mar. 1999, at 44. Ferry details survey results from the Korn/Ferry International
Study assessing views from over 14,000 CEOs, chairmen and directors since 1973. 1999's study
included views from 1,020 participants.
700 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
1973 10-15 (57% of all 4-6 true insiders, 4-6 true outsiders
U.S. boards) plus 2-3
consultants,
bankers, attorneys
1988 14 4 10
1998 11 2 9
99
See id.
100
See id.
101
Id.
102
See Ferry, supra note 97, at 44.
103
Greg Ip, As Activists Flex Muscles, Bull Charges Ahead, WALL ST. J., June 8, 1998,
at C1.
104
Id.
2000] CORPORATE GOVERNANCE 701
Three occasions over the past year saw [Teachers] flexing its
institutional muscles to protect the value of its investments —
filing a shareholder resolution urging Walt Disney Co. to
restructure its board, rounding up proxies and turning out the
entire board of directors at cafeteria company Furr's/Bishop's
[following their approval of several self-enrichment programs]
and negotiating reforms at ERAMET, a recently privatized
French company[, following the French government's attempt
to give away a company mine to appease a local group].110
Equities Fund (TIAA-CREF or Teachers) with $223 billion in assets under management, and
CalPERS with $127 billion in assets).
106
Jennifer Pellet, Teachers Expands Its Curriculum, CHIEF EXECUTIVE, Nov. 1, 1998,
at 44.
107
See Joann S. Lublin & Sara Calian, Activists Pension Funds Create Alliance Across
Atlantic to Press Lackluster Firms, WALL ST. J., Nov. 23, 1998, at A4.
108
See id.
109
See Pellet, supra note 105, at 44.
110
Id. at 44.
702 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
activist fund, went public with its ownership stake and demands for a hefty
buyback. Since then, the stock has rallied 57%."111
The Council of Institutional Investors112 believes two major factors
have propelled the increased activism.113 First, "[t]here's been an explosive
growth in the amount of stock held by institutional investors."114 Indeed,
"[s]ince 1990, the share of domestic stock held by institutions has risen to
65% from 51%, according to Georgeson & Co., a New York firm
specializing in shareholder analysis."115 Second, the SEC facilitated its
proxy-communication rules by approving a package of corporate proxy rule
reforms that made it substantially easier for institutions to communicate with
one another, to discuss concerns regarding companies where they had
holdings, and to team up and coordinate voting efforts.116 The Internet has
been credited as a third factor fueling shareholder activism, because it gives
investors better access to company information.117
According to Maryanne Moore, director of the corporate governance
service of the Investor Responsibility Research Center (IRRC), the IRRC
expected "1999 institutional shareholder efforts to be focused primarily in
the areas of executive pay, the repricing of 'underwater' options and poison
pills."118 Another area where she said the group expected increased activity
was "the examination of many companies' audit committees, in light of the
recent formation of a task force between the SEC and the National
Association of Corporate Directors to ensure auditors are qualified for their
positions and not simply assigned."119
Institutional activism is now going global. In late 1998, CalPERS
formed an unusual trans-Atlantic alliance with Hermes Pensions
Management Ltd., Britain's biggest pension-fund manager, to push for
changes in companies where they both hold stakes.120 Greater cross-border
coordination among activist investors seems inevitable. "We would like to
have alliances in other countries because the world is becoming a global
marketplace," said William D. Crist, president of CalPERS' board of
111
Ip, supra note 102, at C1.
See id. (describing the council as representing more than 100 pension funds, with
1 12
4. Technology
121
See id.
122
Id.
123
Pellet, supra note 105, at 44.
124
See Zahra, supra note 28.
125
Id.
126
See id.
See Mark Latham, Corporate Monitoring:
127
New Shareholder Power Tool, FINANCIAL
ANALYSTS J., Sept./Oct. 1998, at 9.
128
See id. at 10-12.
704 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
D. Private Ordering
1. Overview
Delaware has long been the leader in corporate law. Nearly 300,000
corporations have incorporated in Delaware, including more than fifty
percent of the Fortune 500 and New York Stock Exchange companies.129
Reasons often cited for Delaware's prominence include:
129
See, e.g., Veasey, supra note 95, at 682.
130
See, e.g., id. at 683 (citing Hewlett Packard Co., 1998 Proxy Statement 22-24
(1998), which sought to reincorporate the company in Delaware from California; the
reincorporation was approved by a substantial majority of shareholders).
1 31
Veasey, supra note 95, at 686; see also Williams v. Geier, 671 A.2d 1368, 1381 (Del.
1996) ("At its core, the Delaware General Corporation Law is a broad enabling act which leaves
latitude for substantial private ordering . . . .").
132
No. 14,634, 1996 Del. Ch. LEXIS 17 (Del. Ch. Feb. 15, 1996).
133
See id. at *1-*2.
2000] CORPORATE GOVERNANCE 705
and had the burden of proving that the terms of the asset sale agreement
were entirely fair to the limited partners.134 The court held, however, that
the general partner's relationship to the limited partners was primarily
"contractual in nature," like that of a corporation to its preferred
stockholders.135 The court noted that great deference was due to the
parties' choices:
134
See id. at *3.
135
Id. at *4 (citing H.B. Korenvaes Invs., L.P. v. Marriott Corp., No. 12,922, mem. op.
at 9 (Del. Ch. June 9, 1993), reprinted in 19 DEL. J. CORP . L. 736 (1994)).
136
Cencom, 1996 Del. Ch. LEXIS 17, at *4.
137
Section 17-1101(d) of the Delaware Revised Uniform Limited Partnership Act
provides, in pertinent part:
[t]o the extent that, at law or in equity, a partner or other person has duties
(including fiduciary duties) and liabilities relating thereto to a limited
partnership or to another partner . . ., and . . . the partner's or other person's
duties and liabilities may be expanded or restricted by the provisions in a
partnership agreement.
DEL. CODE ANN. tit. 6, § 17-1101(d) (1999).
138
Cencom, 1996 Del. Ch. LEXIS 17, at *4.
139
Id.
140
Id. at *5.
141
722 A.2d 319 (Del. Ch. 1998).
706 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
142
Id. at 323.
143
See id. at 320-21.
144
Id. at 324.
145
Sonet, 722 A.2d at 322.
146
See id. at 325.
147
Id. at 326.
148
727 A.2d 286 (Del. 1999).
149
Id. at 287.
150
See id.
2000] CORPORATE GOVERNANCE 707
2. Proliferation of LLCs
In 1977, Wyoming was the first state to adopt an LLC provision as part of
its statutory scheme. Now all fifty states and the District of Columbia have
enacted LLC acts.
The driving forces behind the LLC revolution are the LLC's
combined advantages of corporate-like limited liability, with partnership
flow-through tax treatment.154 "Indeed, the LLC has been characterized as
the 'best of both
151
Id. at 295 (citing DEL. CODE ANN. tit. 6, § 18-1101(b) (1999)).
152
Elf Atochem N. Am., 727 A.2d at 289-90.
153
Id. at 286.
154
See LARRY E. RIBSTEIN & ROBERT R. KEATING E , R IBSTEIN AND KEATINGE ON
LIMITED LIABILITY COMPANIES § 2.02, at 2 (1998) (explaining business law considerations in
choosing the LLC form); Martin I. Lubaroff & Paul M. Altman, Delaware Limited Liability
Companies, in DELAWARE LAW OF CORPORATIONS & BUSINESS ORGANIZATIONS § 20.1 (R.
Franklin Balotti & Jesse A. Finkelstein eds., 1998) (explaining federal income tax ramifications
of choosing the LLC form).
708 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
155
Elf Atochem N. Am., 727 A.2d at 290 (quoting Lubaroff & Altman, supra note 153,
§ 20.1).
156
In December 1996, the IRS adopted Regulation 301.7701 effective January 1, 1997,
to simplify the classification of an entity for tax purposes. Any business entity not required
to be treated as a corporation for federal tax purposes, may choose its classification, leading to
the popular "Check the Box" name for this Regulation. I.R.C. § 301.7701 (1999).
See William H. Copperthwaite, Jr., Limited Liability Companies:
157
The Choice for the
Future, 103 COMMERCIAL L.J. 222, 222 (1998).
158
Id. at 223.
159
Elf Atochem N. Am., 727 A.2d at 290 (citing JAMES D. COX ET AL., CORPORATIONS
§ 1.12, at 1.37-.38 (1999)).
2000] CORPORATE GOVERNANCE 709
To date, the Delaware Act has been amended six times with a view
towards modernization. As shown, Section 18-1101(b) of the Act, like the
essentially identical Section 17-1101(c) of the DRLPA, provides that "[i]t
is the policy of [the Act] to give the maximum effect to the principle of
freedom of contract and to the enforceability of limited liability company
agreements."161 The Act provides its members with the discretion to
contractually define their business understanding."162 Accordingly, the
following observation relating to limited partnerships applies, as well, to
limited liability companies:
160
See DEL. CODE ANN. tit. 6, § 18-1101(b) (1999) (emphasis added).
161
DEL. CODE ANN. tit. 6, § 18-1101(b) (1999).
162
Lubaroff & Altman, supra note 153, § 20.4.
710 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 25
1. Technology
163
See Elf Atochem N. Am., 727 A.2d at 291 ( q u o t i n g MARTIN L. LUBAROFF & P AUL
ALTMAN, DELAWARE LIMITED P ARTNERSHIPS § 1.2 (1999) (footnote omitted)). Clearly, both
the LP Act and the LLC Act are uniform in their commitments to "contractual flexibility." See
Lubaroff & Altman, supra note 153, § 20.4.
164
Copperthwaite, supra note 156, at 238-39.
2000] CORPORATE GOVERNANCE 711
2. Globalization
! The euro will gain the international esteem of the yen and the
dollar.
1. Corporate Monitoring
2. Private Ordering
165
Judge Henry Friendly, Address at an LPI lecture (quoting a popular axiom).
2000] CORPORATE GOVERNANCE 713
IV. CONCLUSION
166
Joseph A. Grundfest, The Limited Future of Unlimited Liability: A Capital Markets
Perspective, 102 YALE L.J., 387, 391 (1992).