Corporate opportunities i koncernforhold
– en overset problemstilling i dansk selskabsret
i Nordisk Tidsskrift for SelskabsretThe allocation of corporate or business opportunities in corporate groups poses some interesting questions. On one hand, groups often work as one organisation, and it makes sense for them to move and use corporate opportunities where they create most value. On the other hand, the organisation consists of multiple independent legal entities, and by moving a business opportunity from one entity to another, you are potentially moving an asset of value.
The present article examines this schism in a Danish company law context. To that end, it is firstly concluded that the issue to some extent is addressed within tax law, and in some jurisdictions also within company law. However, there is no company law regulation or doctrine on corporate opportunities in Denmark. It is argued that regardless hereof, some of the pre-existing regulation and duties must be presumed to apply to the transfer or relinquishment of business opportunities in some situations. Therefore, it is pointed out that both companies and other stakeholders must be aware that corporate opportunities cannot freely be allocated between group companies. In that regard, it is further noted that it is not necessarily very transparent how and when these rules and duties apply. It is therefore also discussed whether it would be desirable to regulate corporate opportunities in Danish company law