Judicial enforcement of extra-legal codes in UK and German company law: including observations on OLG Schleswig-Holstein, NZG 2004, 669 (Mobilcom ll) and LG Munchen l, NZG 2004, 626 (Hypovereinsbank)

This article deals with the role of extra-legal Corporate Governance Codes in the UK and in Germany. It introduces the German Corporate Governance System which is based on the (recently challenged) assumption that market pressure will implement good corporate governance. It illuminates the constitutional issues which have overarched the new soft law approach in Germany. But even in the UK, where self-regulatory instruments are common and well proven, there is considerable uncertainty about the way in which they may or may not influence the application of company law. This article considers several judgments from both countries and shows how judges struggle to find the correct approach to extra-legal codes. It also argues that it is legitimate to impute legal consequences on breaches or violations of extra-legal codes.