Reviews
| Date | 01 November 1999 |
| Published date | 01 November 1999 |
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00246 |
REVIEWS
Sandra Berns and Paula Baron,Company Law and Governance: An Australian
Perspective, Melbourne: Oxford University Press, 1998, xi + 518 pp, pb £27.50
It is an ambitious task to offer an introductory account of company law and its social,
political and economic context. Done well, this would be a blessing to students, whose
interest is all too often suffocated by the lifeless legal machinery found in many
company law textbooks. Done badly, the book would sink like the share price of an
overdiversified firm: doing too much means that nothing is done well. Berns and
Baron have been creditably – although not wholly – successful in achieving their
difficult objective.
The book is structured around a theme which applies anthropomorphic descriptions
(provocatively or playfully, dependent on one’s point of view) to all parts of corporate
‘life’. Hence we progress from ‘It’s A Company! The Birth’, through to ‘Funeral
Rites: Dissolution and Death’. The text seeks to blend coverage of traditional black-
letter topics into engagement with theoretical issues. This is most successful in Parts
One and Two, where an interrogation of the corporate ‘person’ poses some of the most
interesting and important questions in company law. The reader is introduced to the
relationship between corporations and the state, corporate crime, social
responsibilities, moral agency, stakeholder theory and a Dworkinian model of the
corporation. Students will undoubtedly benefit from exposure to these issues.
However, it must be said that the authors’ coverage privileges breadth over depth.
Ideas are introduced at a staccato pace, leaving space in some instances for no more
than soundbite treatment. One wonders whether fewer issues, developed more
thoroughly, might not be more conducive to independent thought by students.
The book reads more like a standard text from Part Three onwards, when the
blend becomes almost entirely black-letter. The section on governance (Chapter 9)
is a very accessible map of the terrain, linking directors’ legal status and
responsibilities with some of the wider issues canvassed earlier in the book. The
treatment of share capital (Chapter 12) is particularly impressive, providing an
unusually clear exposition of an area which readily lends itself to opaqueness.
However, the discussion of debt finance (Chapter 11) tends toward over-
simplification. For example, the authors seek to differentiate mortgages from
charges (at pp 299–300) on the basis that a mortgage transfers title, but a charge
only binds third parties when registered. This confuses the impact of the registration
provisions, which affect the third-party status of mortgages as well as charges
(‘charge’ is defined as including ‘mortgage’: Corporations Law (Aust) s 9,
Companies Act (UK) s396(4)), with the underlying nature of a chargee’s rights.
Whilst not a right ‘in’ the charged assets, a charge nonetheless binds third parties to
the same extent as any other equitable interest (see eg Re BCCI (No 8) [1997] BCC
965, per Lord Hoffmann at 972).
Towards the end of the book, the authors once again leave the beaten track to
engage in a stimulating consideration of the role of women in companies and
corporate law. This, like the other introductions to theoretical issues, adds
considerable value to the basic black letter coverage. All in all, this book has much
ßThe Modern Law Review Limited 1999 (MLR 62:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 957
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