Andrew G. T. Moore

“ This Court's recent Commerce Clause cases also have invalidated statutes that adversely may affect interstate commerce by subjecting activities to inconsistent regulations . . . The Indiana Act poses no such problem. So long as each State regulates voting rights only in the corporations it has created, each corporation will be subject to the law of only one state. No principal of corporation law and practice is more firmly established than a State's authority to regulate domestic corporations, including the authority to define the voting rights of shareholders . ”

“ Given that circumstance, and Delaware's long adherence to the internal affairs doctrine, there is no basis for us to impose our own law upon a foreign corporation.↑ While International cites some rather insubstantial federal tax savings as the motivating factor for issuing voting shares to McDermott Delaware, we recognize the potential of McDermott Delaware's voting interest to aid International in a hostile fight for control. ”

“ All three legal experts agreed that McDermott Delaware could vote the shares it held in International. Further, Dean Fernandez specifically stated that it "is a principle of law that in matters of public law one can only do what is expressly allowed by the law; while in private law all acts not prohibited by law can be performed." This fully accords with basic principles of Delaware corporate law. ”

“ It is essential to distinguish between acts which can be performed by both corporations and individuals, and those activities which are peculiar to the corporate entity.
Corporations and individuals alike enter into contracts, commit torts, and deal in personal and real property. ”

“ In fields like torts, where the typical dispute involves two persons and a single or simple one-shot issue and where the common substantive policy is to spread the loss through compensation and insurance, the preference for forum law and the emphasis on the state interest in forum residents which are the common denominators of the new conflicts methodologies do not necessarily lead to unacceptable choices. ”

“ Since a state has no interest in regulating the internal affairs of a foreign corporation under MITE, Delaware has nothing left with which to counterbalance the burden that application of Section 160 (c) on International would impose on interstate commerce. Given all the circumstances, the trial court's ruling cannot stand. [16]
IV. Plaintiffs protest the issuance of voting stock to McDermott Delaware on public policy grounds, relying on the following statement from Norlin:
[The] statutes seek to safeguard minority shareholders from management attempts at self-perpetuation. ”

“ The resolution approving the contested stock issuances were adopted in this state, and the company stock has been traded on the NYSE. Whether these contacts are sufficient for a New York court to apply New York law is in our view, a question that does not lend itself to a simple answer. We need not, however, grapple with it to resolve the present inquiry. The principals compelling a foreign state to apply foreign law come into play only when a legitimate and substantial interest of another state would thereby be served . ”

“ Stockholders also have a right to know by what standards of accountability they may hold those managing the corporation's business and affairs. That is particularly so here, given the significant fact that in the McDermott Group reorganization, and after full disclosure, 89.59% of the total outstanding common shares of McDermott Delaware were tendered in the exchange offer. Compare Norlin. ”

“ The traditional conflicts rule developed by courts has been that internal corporate relationships are governed by the laws of the forum of incorporation. See Macey & Miller, Toward an Interest-Group Theory of Delaware Corporate Law, 65 Tex. ”

“ Following the 1982 Reorganization, McDermott Delaware became a 92%-owned subsidiary of International. The public stockholders of International hold approximately 90% of the voting power of International, while McDermott Delaware holds about 10%. ”