Federal vs. state law: the SEC's new ability to certify questions to the Delaware Supreme Court

In the summer of 2007, the Delaware legislature amended the Delaware Constitution to permit the Securities and Exchange Commission to certify questions of law directly to the Delaware Supreme Court. This ability to provide advisory opinions, if utilized by the SEC, is poised to enhance Delaware'...

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Bibliographic Details
Published in:The Corporate Governance Advisor 2008-03, Vol.16 (2), p.12
Main Author: Verret, J.W
Format: Article
Language:English
Subjects:
Boards of directors
Business performance management
Bylaws
Commercial law
Constitutional amendments
Corporate governance
Corporation law
Declaratory judgments
Elections
Interpretation and construction
Laws, regulations and rules
Primaries & caucuses
Proposals
Proxy solicitation
Public companies
Shareholder voting
State court decisions
State laws
Stockholders
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Summary:In the summer of 2007, the Delaware legislature amended the Delaware Constitution to permit the Securities and Exchange Commission to certify questions of law directly to the Delaware Supreme Court. This ability to provide advisory opinions, if utilized by the SEC, is poised to enhance Delaware's dominance as the state of incorporation for publicly traded corporations. With this new ability to certify questions directly to the Delaware Supreme Court, the SEC would be hard pressed to claim an inability to rule on the legality of a 14a-8 exclusion. The most interesting implication of the new Delaware certification is that it can permit the SEC to resolve pressure from Congress or interest groups by leaving open ended aspects to its rule-making in areas that may overlap with state law.
ISSN:1067-6163