Abstract

This chapter takes a comparative approach to private ordering of shareholder litigation. To what extent can the players in shareholder litigation—companies, management, shareholders, and other investors—set the rules for litigation through private agreement? The chapter begins with the US example, in which dispute resolution provisions emerged in the constituent documents of US companies as a response to pressures from litigation. The contours of permissible provisions have not been exhaustively drawn, but dispute resolution bylaws have been tested in US state courts and were the subject of subnational legislation. The chapter then examines how private ordering of shareholder litigation—both intracorporate and securities suits—might function (or not) in the context of the EU and some of its constituent countries. This comparison highlights many of the similarities, as well as important differences, in how the United States and the EU approach private ordering in shareholder litigation.