INTRODUCTION

The notion of remedies as a distinct field of research comes easily to a law-and-economics scholar. This is due to the fact, that law and economics employs a functional approach to law. And since the function of law, i.e. the promotion of welfare, is perceived to be the same across the different fields of substantive law, it is only to be expected that this common function results in common features of remedies which are not specific to a certain field of substantive law. Acknowledging the common function and, as a consequence, the common features of remedies it makes perfect sense to consider the law (and economics) of remedies as a discrete and cross-cutting field of research which helps to avoid ‘duplicated work and missed insights.’

However, it has only recently been lamented that the substantial interaction which would be expected between scholars in the fields of ‘law and economics’ and ‘remedies’ is not taking place. The author of this lamentation attributes the sorry state of affairs largely to the effect that law-and-economics scholars tend to ignore the black-letter law and the doctrinal background remedies scholars have to take into account. This critique, however, assumes a service function of law and economics for doctrinal research that is not self-evident. It appears to be rather the task of remedies scholars to translate the concepts and insights of law and economics to the law of their respective jurisdictions. This can be done in order to interpret the law as it stands in a way that serves efficiency, or to evaluate such law and to compare it to alternative legal arrangements.

This chapter endeavours to accomplish the latter task in respect to the remedial issues of corporate law and, therefore, proceeds as follows: After (2.) a brief introduction to some core concepts of the economics of remedies, (3.) these concepts will be applied to some of the remedial issues of current corporate law. This will be done by referring to some highly contested issues of the German stock corporation law (Aktienrecht), namely the appropriate design of the shareholder rescission suit, the idea of expanding the appraisal remedy and the desirability of shareholder derivative suits.