Current and Prospective Colombian Company Law Under the Legal Transplant Theory. S.AS. Case Study = Derecho societario colombiano desde la perspectiva de la teoría de los trasplantes legales. Con especial referencia a las S.A.S.
The Legal Transplant Theory proposed by A. Watson, K. Pistor and D. Berkowitz is defined as movement of a rule or a system of law from one country to another. Under this theory, the mentioned authors conclude that a legal change does not perform in an equal manner in the transplanting country as in the origin country. They argue that the adoption of it in the latter is the result of a comprehensive study of the socio-economic circumstances of the nation, while transplanting countries import the legal entity without having similar circumstances. Furthermore, under this theory, the successfulness of a legal transplant is determined by an adaptation process that the legislator, the governmental institutions and the society of the transplanting country shall undertake to prepare the scenario for the introduction. In consequence, transplanted legal changes are called to fail due to uninformed or erroneous decision made by the law-makers. Pistor and Berkowitz analyzed company regulation in various countries, among them Colombia, to support their theories. Regarding the Colombian case, they referred to the Codes of Commerce of 1853 and 1887, concluding that they were unsuccessful legal transplants from Spain and Chile, respectively. This paper analyzes the abovementioned theory pretending to determine if the legal transplant theory was correctly applied to the Colombian case. Particular attention deserves the Sociedad por Acciones Simplificadas (S.A.S), which is a new hybrid business form adopted in Colombia as a transplant from the United States’ Limited Liability Company. In the light of this case, the document will determine whether this is called to be an unsuccessful legal transplant (as predicted by the Legal Transplant Theory). If the answer is negative, the document will determine if the S.A.S. is merely an exception of the theory or if it demonstrates the failure of such assumption.
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