Form and substance of the doctrine of piercing of corporate veil
Author: Thomas Cheng
In: Mississippi Law Journal, 2010, v. 80 n. 2, p. 497-585.
Abstract: This Article proposes a reformulation of the doctrine of piercing of corporate veil based on the rationale of prevention of shareholder unjust enrichment. Applying the formal and substantive dichotomies propounded in Professor Duncan Kennedy’s seminal article “Form and Substance of Private Law Adjudication”, it examines the formal and substantive relationships of the doctrine and the related rule of limited liability. It affirms that the doctrine is of an altruistic nature, which provides a basis for launching an inquiry into its principal objective. An examination of the effects of corporate veil liability and its interaction with the underlying contractual and tortious claims shows that the genuine focus of the doctrine is shareholder unjust enrichment. Using this as a basis for a reexamination of the doctrine, this Article proposes a de-emphasis of the criteria that are usually considered under the formalities prong of the doctrine and a sharpening of focus on instances of shareholder unjust enrichment.