An institutional analysis of UK ostensible minority shareholder protection mechanisms

This article argues that there is a conundrum at the heart of the company law understanding of ostensible minority protection mechanisms (the derivative claim and unfair prejudice): they are terrible at protecting those that they are thought to protect. The hurdles to access the remedies are too high, there is undue focus on the behaviour of the wronged party, costs are uncertain, and relief inadequate. This conundrum can be resolved by applying an institutional analysis and exploring the rules from the perspective of the company. Here, a number apparent weaknesses in the regime are mostly strengths for the company. The remedies are important for the company as they act as a 'lightning rod': all complaints by disgruntled shareholders are funnelled through these hegemonic argumentation structures, which protect the institutional arrangement of the company and, in turn, that part of the institutional environment which is company law.

Automated summary

This article argues that the ostensible minority protection mechanisms in company law, such as the derivative claim and unfair prejudice, fail to effectively protect the intended beneficiaries. The remedies are hard to access, overly focused on the behavior of the wronged party, and offer inadequate relief. However, by applying an institutional analysis and examining the rules from the perspective of the company, these weaknesses can be turned into strengths for the company. The remedies act as a "lightning rod" for complaints by disgruntled shareholders, protecting the institutional arrangement of the company and the broader company law framework.