The Development of German Corporate Law to 1990: An Historical Reappraisal
By Peter Muchlinski
This article seeks to re-appraise our historical understanding of the development of corporate law in Germany. In comparative corporate law, German corporate law has been used as an illustration of the “otherness” of German industrial and corporate governance in ways which the findings of this paper seek to question. As will be shown, there is far more historical similarity between the development of the German corporate law system and other systems. A new wave of corporate governance history has emerged, on whose methodology the paper relies, which is more firmly rooted in archival research, and is sceptical of arguments based on path dependency and the neo-liberal tendency to value market-based relationships over co-ordinated arrangements. Rather, it seeks to show that German corporate law and governance does not fall neatly into any pre-defined category, either over time or at any particular time, and that, particularly in the period of formation in the late nineteenth century, German corporate law displayed hybrid characteristics with both market-based and co-ordinated forms of finance and governance being used. The distinctive characteristics of German corporate law, in particular the dual board system and co-determination, are seen as products of specific historical events rather than inevitable outcomes of any inherent qualities of the German system of corporate law and governance as a “legal family”.
[with Thorsten Bonacker]