Abstract: While Article 183 of the Company Law provides a legal basis for the contractual adjustment of corporate opportunities, it lacks clear criteria for determining the validity of relevant provisions in a company's articles of association. Traditional corporate opportunity rules suffer from practical shortcomings (such as undermining commercial efficiency and offering insufficient incentives for information disclosure) and, from the perspective of incomplete contract theory, should not be regarded as the sole mechanism for balancing interests related to corporate opportunities. The corporate opportunity rule should be treated as a default provision, allowing parties to conduct ex-ante negotiations over corporate opportunities in order to adapt to complex business environments, provided that a rigorous set of judicial standards is established for subsequent review. Substantively, any contractual adjustment must meet the requirement of specificity. Procedurally, a distinction must be drawn between internal and external fiduciaries. Contractual adjustments involving external fiduciaries are governed by the general rules for the adoption or amendment of articles of association, while those involving internal fiduciaries require unanimous shareholder approval. It should be emphasized that contractual adjustment does not exempt fiduciaries from the duty of information disclosure, and internal fiduciaries must still obtain the company's ex-post consent to exploit a specific corporate opportunity.

Keywords: corporate opportunity; contractual adjustment mechanism; corporate autonomy; fiduciary; duty of loyalty

 

Authors: Xi Yuemin, research fellow, CASS Institute of Law; doctoral supervisor, Law School of the University of CASS; Tan Xiaoyao, doctoral candidate, Law School, Renmin University of China;

Source: 12 (2025) Journal of Business Economics.