USA Trends and Developments Contributed by: Piotr Korzynski, Mark Mandel, Michael Pilo and Carol Stubblefield, Baker McKenzie
would further align forum design with its substantive corporate law strategy. In practical terms, Nevada is increasingly offering a paradigm in which controllers and boards may face less litigation exposure and more explicit statutory protection than under Delaware law. That will make Nevada attractive to some founder-led, controlled or risk-sensitive companies. But the trade-off is equally clear: Nevada still lacks Delaware’s depth of prece - dent, and for many investors, advisers and counter - parties, the comparative predictability of Delaware’s judicial ecosystem remains a significant advantage. No automatic incorporation choices The most important point for boards amid this legisla - tive competition is that there is not a standard state of incorporation; rather, as with specific governance decisions, boards should make informed choices about their overall state of formation and refresh that decision as part of regular corporate governance “refresh” or maintenance practices. Delaware, Texas and Nevada are each making distinct policy choices about fiduciary accountability, controller power, stock - holder rights and litigation design. Boards evaluating an incorporation decision or a potential re-domesti - cation, or conducting a governance refresh, should therefore consider the issue as a strategic governance choice, not simply a legal housekeeping matter. AI Governance is Moving From Aspiration to Board Process A final theme that deserves attention in 2026 (and likely for the foreseeable future) is artificial intelligence, or AI. In recent years, AI often appeared in govern - ance discussions as an emerging technology topic or a disclosure risk. That framing is now too narrow. For many boards, AI has become a core governance issue touching enterprise strategy, cybersecurity, compli - ance, workforce design, vendor oversight and pub - lic disclosure. At the same time, expectations about board oversight are becoming more concrete. Recent market commentary suggests that companies are increasingly assigning AI oversight responsibilities to a specific board committee, often the audit com - mittee or a technology-focused committee, and are developing more formal AI governance frameworks at
the management level. The SEC’s Investor Advisory Committee has also recommended more structured disclosure about AI use and board oversight mech - anisms. While that recommendation does not itself create a rule, it reflects a broader trend: stakeholders now expect companies to show not only that they are using AI, but also that someone is clearly accountable for governing it. This trend has two governance implications. First, boards need enough fluency to ask useful questions about AI deployment, data quality, bias, cybersecurity and third-party dependencies. Second, boards should be careful not to let AI become either a generic com - mittee assignment or an untested disclosure theme. Investors and regulators are increasingly focused on the gap between a company’s AI story and its actual governance architecture, and that makes disciplined oversight, careful disclosure controls and internal accountability especially important. Looking Ahead The central governance challenge for US companies in 2026 is not simply that the rules are changing: it is that they are changing in multiple directions at once. Federal securities regulation is becoming more flexible in some areas and more demanding in others; activ - ism is broadening beyond the traditional proxy fight; and state corporate law is becoming more competitive and more ideologically differentiated. Boards that con - tinue to rely on inherited assumptions about process, shareholder engagement or corporate domicile may find themselves out of step with the market. The companies best positioned for this environment will be those that treat governance as an operating discipline rather than a disclosure exercise. That means understanding where execution timelines may shorten, where investor engagement may become less predictable, where activism may emerge from ordinary strategic dissatisfaction, and where the com - pany’s state-law framework either supports or com - plicates its long-term objectives.
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