Albert H. Choi (University of Michigan Law School; European Corporate Governance Institute) has posted Intra-Corporate Affairs on SSRN. Here is the abstract:
The increasing use of forum selection provisions in corporate charters and bylaws has reshaped Delaware corporate law. What began as a response to multi-forum stockholder litigation in M&A deals has developed into a broader doctrine under which corporate organizational documents may regulate not only traditional internal affairs claims, but also claims arising under non-corporate law. Judicial decisions, such as Salzberg v. Sciabacucchi, together with the 2025 amendment to DGCL § 115, have recognized an intermediate category of “intra-corporate” claims. This Article examines that development and argues that the current doctrinal formulations do not provide a sufficiently clear limiting principle for identifying such claims. In particular, approaches that rely on board involvement or a generalized connection to the corporation’s “business and affairs” risk extending corporate regulatory authority into areas traditionally governed by other bodies of law. After tracing the evolution of the doctrine from Boilermakers Local 154 Retirement Fund v. Chevron Corp. through Salzberg v. Sciabacucchi and two statutory amendments in 2015 and 2025, the Article analyzes boundary cases, including federal securities law claims, and demonstrates the indeterminacy of the current framework. The Article then considers a few possible approaches for clarifying the scope of intra-corporate claims, including legislative and doctrinal alternatives. Each seeks to preserve the functional benefits of forum selection provisions while maintaining a more coherent boundary between corporate law and other areas of law.
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