Social Enterprise Law : A Multijurisdictional Comparative Review

The concept of the social enterprise has gained considerable attention in a limited number of jurisdictions. In the United States, hybrid social enterprise forms, including Delaware’s public benefit corporation, the benefit corporation in over three dozen states, and the private B Corp certification offered by the nonprofit B Lab, have become prominent challenges to the long tradition of shareholder capitalism. In the United Kingdom, Community Interest Companies can benefit from public subsidies in the form of tax preferences. In others, like Germany, a robust welfare state has caused social enterprise to spread much less quickly.

This volume looks beyond well-known examples of social enterprise to find that―to paraphrase Shakespeare―there are more forms of business enterprise than are dreamt of in our theory of the firm. Cooperatives, for example, play an important role in jurisdictions ranging from Colombia―where one of the country’s largest drugstores is owned by a cooperative―to Singapore, which introduced cooperatives in 1925 under British rule. Drawing on the rich cooperative traditions in Europe, jurisdictions across the EU now offer specialised social cooperative forms.

This volume brings together experts on jurisdictions ranging from Belgium and Dubai to Switzerland and Taiwan, to describe the traditional and innovative structures employed by entrepreneurs to combine aspects of for-profit business with a broader societal purpose. Together, they draw a clear picture of what social enterprise has come to mean, both where conventional business enterprises prioritise the common good and where such an approach would be disfavoured.

The volume also examines the wide range of measures taken by state actors to regulate social enterprises. In those jurisdictions in which the state provides support for social enterprise, the volume details the conditions that ventures must meet to receive and retain that support. The reports also describe an array of specialised legal forms and certification regimes offered by state and private actors and consider their impact.

Offering an unprecedented perspective, this volume’s insights will inspire opportunities for innovation both by entrepreneurs themselves and by others in the private and public sectors determined to disrupt business law, thus making this area of law more responsive to the concerns of a diverse group of stakeholders. In particular, it presents evidence that the absence of restraints on the distribution of profits or residual assets of a venture tends to limit the availability of tax or other incentives. The British Columbia, Canadian benefit company, the Peruvian B.I.C. and the US benefit corporation offer telling examples of an absence of distribution constraints paired with little to no regulatory oversight and virtually no public subsidies.

About the Editors

Dana Brakman Reiser holds a chair as Centennial Professor of Law at Brooklyn Law School in New York City, United States, and also served as Vice Dean. She is a member of the American Law Institute and a former Associate Reporter for its project on the Principles of the Law of Nonprofit Organizations. Previously, she was the chair of the Section on Nonprofit and Philanthropy Law of the American Association of Law Schools and is a former member of the executive board of its Section on Business Law. Together with Steven A. Dean, she published For-Profit Philanthropy (Oxford University Press) and Social Enterprise Law: Trust, Public Benefit and Capital Markets (Oxford University Press). Dana graduated from the University of Pennsylvania and Harvard Law School.

Steven A. Dean is a Professor of Law at Boston University School of Law. Dean has published books about taxation, philanthropy, and social enterprise, including two with Dana Brakman Reiser: For-Profit Philanthropy (Oxford University Press) and Social Enterprise Law: Trust, Public Benefit and Capital Markets (Oxford University Press). He has testified before the Congressional House Ways and Means Committee about the impact of racism on tax policy, served as a consultant to the Organization for Economic Cooperation and Development, been a General Rapporteur for the International Academy of Comparative Law, and is a member of the American Law Institute. Steven graduated from Yale Law School and practiced at Debevoise & Plimpton and Cravath, Swaine & Moore.

Giedre Lideikyte Huber is Senior Lecturer at the Faculty of Law of the University of Geneva, Switzerland and an incoming Assistant Professor of Tax Law at the University of St. Gallen (2024). She previously worked as principal researcher in the project ‘Taxation and Philanthropy’, funded by the Swiss National Science Foundation. Giedre has received numerous academic awards and grants. She graduated from the University of Geneva, Switzerland, Maastricht University, the Netherlands, and Vilnius University, Lithuania. She is also an Assessor Judge for tax matters at the Administrative Court of the State of Geneva.

List of Rapporteurs

With a General Report by Dana Brakman Reiser (Brooklyn Law School, United States) and Steven A. Dean (Boston University Law School, United States), and Special Reports by Begoña Albornoz (P. Universidad Católica de Chile), Abdul Karim Aldohni (Newcastle University, United Kingdom), Rafael Andrade (FGV Law School, Brazil), Victoria Schnure Baumfield (Bond  University, Australia), Lucian Bercea (West University of Timișoara, Romania), Sofía Bernier (P. Universidad Católica de Chile), Nina Boeger (City, University of London, United Kingdom), Oonagh B. Breen (University College Dublin, Ireland), Lynn Buckley (University of Auckland, New Zealand), Szymon Byczko (University of Łódź, Poland), Jérôme Chacornac (Université Paris-Panthéon Assas, France), Sofie Cools (KU Leuven, Belgium; RU Nijmegen, The Netherlands), Luciana Dias (FGV Law School, Brazil), Juan Diaz-Granados (Australian Catholic University,  Australia), Paula Dolan (Dublin City University, Ireland), Antonio Fici (University of Rome Tor Vergata, Italy), Andrea Fusaro (Università di Genova, Italy), Nicholas Romici Goldstein (University of Auckland, New Zealand), Juan E. Ibáñez (P. Universidad Catolica de Chile), Farkhad Karagussov (Caspian University, Kazakhstan), Xenia Karametaxas (Universität Zürich, Switzerland), Alan K. Koh (Nanyang Technological University, Singapore), Carol Liao (University of British Columbia, Canada), Giedre Lideikyte Huber (University of Geneva, Switzerland), Francisco Loyola (P. Universidad Católica de Chile), Nobuko Matsumoto (Keio University, Japan), Deiric O’Broin (Dublin City University, Ireland), Alvaro Pereira (Georgia State University College of Law, United States), Raymundo J. Pereira (RPL Abogados Asociados, Colombia), István Sándor (ELTE Eötvös Loránd University, Hungary), Ayşe Şahin (Bahcesehir University, Turkey), Benedict Sheehy (University of Canberra, Australia), Karsten Engsig Sørensen (Aarhus University, Denmark), Edison Tabra Ochoa (Pontifical Catholic University of Peru), Samantha S. Tang (National University of Singapore), Maxime Verheyden (KU Leuven, Belgium), Lécia Vicente (Berkeley School of Law, United States), Wen-Yeu Wang (Kainan University College of Law, Taiwan), Susan Watson (University of Auckland, New Zealand), Birgit Weitemeyer (Bucerius Law School, Germany) and Meng Ye (Georgia State University, United States).

The concept of the social enterprise has gained considerable attention in a limited number of jurisdictions. In the United States, hybrid social enterprise forms, including Delaware’s public benefit corporation, the benefit corporation in over three dozen states, and the private B Corp certification offered by the nonprofit B Lab, have become prominent challenges to the long tradition of shareholder capitalism. In the United Kingdom, Community Interest Companies can benefit from public subsidies in the form of tax preferences. In others, like Germany, a robust welfare state has caused social enterprise to spread much less quickly.

This volume looks beyond well-known examples of social enterprise to find that―to paraphrase Shakespeare―there are more forms of business enterprise than are dreamt of in our theory of the firm. Cooperatives, for example, play an important role in jurisdictions ranging from Colombia―where one of the country’s largest drugstores is owned by a cooperative―to Singapore, which introduced cooperatives in 1925 under British rule. Drawing on the rich cooperative traditions in Europe, jurisdictions across the EU now offer specialised social cooperative forms.

This volume brings together experts on jurisdictions ranging from Belgium and Dubai to Switzerland and Taiwan, to describe the traditional and innovative structures employed by entrepreneurs to combine aspects of for-profit business with a broader societal purpose. Together, they draw a clear picture of what social enterprise has come to mean, both where conventional business enterprises prioritise the common good and where such an approach would be disfavoured.

The volume also examines the wide range of measures taken by state actors to regulate social enterprises. In those jurisdictions in which the state provides support for social enterprise, the volume details the conditions that ventures must meet to receive and retain that support. The reports also describe an array of specialised legal forms and certification regimes offered by state and private actors and consider their impact.

Offering an unprecedented perspective, this volume’s insights will inspire opportunities for innovation both by entrepreneurs themselves and by others in the private and public sectors determined to disrupt business law, thus making this area of law more responsive to the concerns of a diverse group of stakeholders. In particular, it presents evidence that the absence of restraints on the distribution of profits or residual assets of a venture tends to limit the availability of tax or other incentives. The British Columbia, Canadian benefit company, the Peruvian B.I.C. and the US benefit corporation offer telling examples of an absence of distribution constraints paired with little to no regulatory oversight and virtually no public subsidies.

About the Editors

Dana Brakman Reiser holds a chair as Centennial Professor of Law at Brooklyn Law School in New York City, United States, and also served as Vice Dean. She is a member of the American Law Institute and a former Associate Reporter for its project on the Principles of the Law of Nonprofit Organizations. Previously, she was the chair of the Section on Nonprofit and Philanthropy Law of the American Association of Law Schools and is a former member of the executive board of its Section on Business Law. Together with Steven A. Dean, she published For-Profit Philanthropy (Oxford University Press) and Social Enterprise Law: Trust, Public Benefit and Capital Markets (Oxford University Press). Dana graduated from the University of Pennsylvania and Harvard Law School.

Steven A. Dean is a Professor of Law at Boston University School of Law. Dean has published books about taxation, philanthropy, and social enterprise, including two with Dana Brakman Reiser: For-Profit Philanthropy (Oxford University Press) and Social Enterprise Law: Trust, Public Benefit and Capital Markets (Oxford University Press). He has testified before the Congressional House Ways and Means Committee about the impact of racism on tax policy, served as a consultant to the Organization for Economic Cooperation and Development, been a General Rapporteur for the International Academy of Comparative Law, and is a member of the American Law Institute. Steven graduated from Yale Law School and practiced at Debevoise & Plimpton and Cravath, Swaine & Moore.

Giedre Lideikyte Huber is Senior Lecturer at the Faculty of Law of the University of Geneva, Switzerland and an incoming Assistant Professor of Tax Law at the University of St. Gallen (2024). She previously worked as principal researcher in the project ‘Taxation and Philanthropy’, funded by the Swiss National Science Foundation. Giedre has received numerous academic awards and grants. She graduated from the University of Geneva, Switzerland, Maastricht University, the Netherlands, and Vilnius University, Lithuania. She is also an Assessor Judge for tax matters at the Administrative Court of the State of Geneva.

List of Rapporteurs

With a General Report by Dana Brakman Reiser (Brooklyn Law School, United States) and Steven A. Dean (Boston University Law School, United States), and Special Reports by Begoña Albornoz (P. Universidad Católica de Chile), Abdul Karim Aldohni (Newcastle University, United Kingdom), Rafael Andrade (FGV Law School, Brazil), Victoria Schnure Baumfield (Bond University, Australia), Lucian Bercea (West University of Timișoara, Romania), Sofía Bernier (P. Universidad Católica de Chile), Nina Boeger (City, University of London, United Kingdom), Oonagh B. Breen (University College Dublin, Ireland), Lynn Buckley (University of Auckland, New Zealand), Szymon Byczko (University of Łódź, Poland), Jérôme Chacornac (Université Paris-Panthéon Assas, France), Sofie Cools (KU Leuven, Belgium; RU Nijmegen, The Netherlands), Luciana Dias (FGV Law School, Brazil), Juan Diaz-Granados (Australian Catholic University, Australia), Paula Dolan (Dublin City University, Ireland), Antonio Fici (University of Rome Tor Vergata, Italy), Andrea Fusaro (Università di Genova, Italy), Nicholas Romici Goldstein (University of Auckland, New Zealand), Juan E. Ibáñez (P. Universidad Catolica de Chile), Farkhad Karagussov (Caspian University, Kazakhstan), Xenia Karametaxas (Universität Zürich, Switzerland), Alan K. Koh (Nanyang Technological University, Singapore), Carol Liao (University of British Columbia, Canada), Giedre Lideikyte Huber (University of Geneva, Switzerland), Francisco Loyola (P. Universidad Católica de Chile), Nobuko Matsumoto (Keio University, Japan), Deiric O’Broin (Dublin City University, Ireland), Alvaro Pereira (Georgia State University College of Law, United States), Raymundo J. Pereira (RPL Abogados Asociados, Colombia), István Sándor (ELTE Eötvös Loránd University, Hungary), Ayşe Şahin (Bahcesehir University, Turkey), Benedict Sheehy (University of Canberra, Australia), Karsten Engsig Sørensen (Aarhus University, Denmark), Edison Tabra Ochoa (Pontifical Catholic University of Peru), Samantha S. Tang (National University of Singapore), Maxime Verheyden (KU Leuven, Belgium), Lécia Vicente (Berkeley School of Law, United States), Wen-Yeu Wang (Kainan University College of Law, Taiwan), Susan Watson (University of Auckland, New Zealand), Birgit Weitemeyer (Bucerius Law School, Germany) and Meng Ye (Georgia State University, United States).