2016年7月5日下午14：00，来自北京大学国际法学院的Sang Yop Kang教授为北京大学汇丰商学院的师生带来了一场学术交流讲座，讲座主题为“Rethinking Self-Dealing and the Fairness Test: A Law and Economics Framework for Internal Transactions in Corporate Groups”，讲座吸引了我院众多教师和同学参与交流。

Abstract

In the controlling shareholder ownership, tunneling (i.e., wealth transfer from a corporation to a controlling shareholder) is a prevailing business practice. In corporate groups—which are main business associations in many emerging markets—it is reported that tunneling primarily takes place in the form of internal transactions among affiliated companies. Regarding a controlling shareholder’s incentive to attain private benefits, this Article analyzes three components of a controller’s internal-transaction tunneling: ownership gap, price gap, and the quantity of goods or services. In addition, based on two leading U.S. cases on conflicted transactions, Sinclair Oil Corp. v. Levien and Weinberger v. UOP, Inc., this Article develops an analytical tool to reinterpret the fairness test in the context of internal-transaction tunneling in corporate groups. Specifically, three conditions of the Sinclair standard—a controller’s domination on both sides of a transaction, exclusion of non-controlling shareholders from benefits available to a controller, and detriment of non-controlling shareholders—are rigorously reviewed. Also, this Article provides courts with law and economics logics for a fair range of price gap, and reinterprets Weinberger to examine a special issue of substantially large internal transactions without abnormal profits (i.e., with normal profits). In addition, this Article explains market-based mechanisms to mitigate tunneling such as non-controlling shareholders’ discounted purchase of stocks and their diversified portfolio. In sum, this Article suggests a new, more sophisticated law and economics-based analysis of tunneling/self-dealing. In doing so, this Article will shed light on corporate governance scholarship on tunneling in the corporate group settings.