The derivative action in Asia: Some concluding observations

• Main Authors: PUCHNIAK, Dan W., BAUM, Harald
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2012
• Subjects: Asian Studies; Business Organizations Law
• Online Access: https://ink.library.smu.edu.sg/sol_research/3958; https://search.library.smu.edu.sg/discovery/fulldisplay?docid=alma99577088502601&context=L&vid=65SMU_INST:SMU_NUI&lang=en&search_scope=Everything&adaptor=Local%20Search%20Engine&tab=Everything&query=any,contains,The%20Derivative%20Action%20in%20Asia:%20A%20Comparative%20and%20Functional%20Approach&offset=0
• Institution: Singapore Management University

Context matters. Take a step back and look at some 170 years of history of derivative actions and at the pertinent developments on three continents, and you will see a seemingly endless regulatory quest for what we have termed the ‘Holy Grail’ of derivative actions regulation (i.e., the appropriate balance between the necessary incentives to ensure that derivative actions are pursued effectively and the indispensable safeguards to prevent their abuse). Few, if any, legislatures or courts have been able to grasp this elusive goal; perhaps, like the Holy Grail itself, it may never be grasped. This book’s analysis of the foundational jurisdictions of the United States, the United Kingdom, Germany and France and our seven major Asian jurisdictions illustrates that, whether in the East or the West, local context is critically important. Local context matters because it varies, in unpredictable ways, from jurisdiction to jurisdiction and within each jurisdiction over time. Each jurisdiction’s local context is defined by a myriad of unique features, including its law, economy, institutions and socio-political environment. The limitless permutations of how these contextual features can combine is what uniquely shapes the functionality of derivative actions in each jurisdiction, makes the quest for the ‘Holy Grail’ so elusive and causes the derivative action to be so complex. In this sense, it is the complexity of each jurisdiction’s unique and evolving local context that forms the core of our comparative and functional understanding of the derivative action in this book.