Abstract

The idea that there is a uniformly “optimal” governance structure for corporationsnfeatures prominently in current debates and policy proposals. In this paper, we propose andifferent, constitutional theory of corporate governance: the criterion for a good corporatengovernance structure is whether it is freely chosen by the shareholders. We illustrate ournapproach by comparing the constitutional rights of shareholders under US corporate law and Swiss corporate law. Moreover, we discuss the mandatory provisions that shareholders would likely include in corporate law at a constitutional stage, behind the veil of ignorance.