Comparative Corporate Governance.
2 Module Assignment:
Summative Assignment:
Compare and contrast the Anglo- American model and the European Model of Corporate Governance. Comment on which model, in your view, more accurately reflects emerging corporate trends and provide evidence for your conclusions by focussing on a particular country or alternatively by making international comparisons based on a variety of different countries and, or continents. Submission Date: 29:1:2016
3 Useful Text and Purchases
Course Text: Tricker, R. I Corporate governance : principles, policies and practices Oxford : Oxford University Press, 2015.
Elementary Book.
Mallin, Chris A. Corporate governance Oxford : Oxford University Press, 2013. Useful and Interesting ( but a little elementary)
Mayson, French& Ryan(2013),Company Law, Oxford.
McCahery, Joseph and Vermeulen, Erik, Corporate governance of non-listed companies / Jose Oxford University Press, 2010.
Keay, A (2014) Directors’ Duties, Jordons ( expensive)
Course Outline
Week 1. Introduction./ Identify themes
Week 2; Business Organisations- The framework, Some Complexities, and Some Shortcomings.
Research Question: Provide a brief critique of the Concept of corporate
Reading ; Wolf` On the nature of Legal persons (1983) LQR4 494. Any other later reading of your choice but be sure to be familiar with the impact of the leading case of Salmon v Salmon [1897] AC22 on legal thinking and discourse.
Milman , D (2015) Continuity and change in partnership law Co. L.N. 2015, 375, 1-4
Milman, D (2105) Revisiting the core principles of modern corporate law Co. L.N. 2015, 371, 1-5
Watson, S (2015) How the company became an entity: a new understanding of corporate law J.B.L. 2015, 2, 120-141
Week 3 Definition of Corporate Governance and an Analysis of Legal Theory.
Theories Associated with Corporate Governance:
• Agency Theory
• Separation of Ownership from Control.
• Stakeholder Theory
• Stewardship Theory
• Convergence
• Cultural Aspects of Corporate Governance
• Towards a definition of Corporate Governance.
Research Question:
Which theory provides the most persuasive explanation for current failures in corporate governance?
Essential Reading.
Young, A. Rethinking the fundamentals of corporate governance in the New Century, Company Lawyer, Vol 29 No6, pp168-174
Salacuse, J.W., Corporate Governance in the New Century, Company Lawyer, Vol 25, No6 March pp69-83.
Bethel, U. J (2014 )The Governance of corporate social responsibility; developing an inclusive regulatory framework, Int. J.L.M. 2014 56(20 105-120.
Abugu, J.E. (2013) Primacy of shareholders’ interests and the relevance of stakeholder economic theories Comp. Law. 2013, 34(7), 202-214
Miles, L A (2012) A philosophical basis for the “enlightened shareholder value” approach Co. L.N. 2012, 308, 1-6
Young, A et al (2007) Corporate governance in China: the role of the state and ideology in shaping reforms Comp. Law. 2007, 28(7), 204-211
Week 4 The Civil and Criminal Liabilities of Crime:
Directing mind of the Company- alter ego
Civil liability
What crimes?
Corporate Killing?
Why Convict Companies?
General exceptions to criminal liability
Criminal sanctions.
Research question: To what extent do you believe that the existing law provides sufficient safeguards against corporate misdemeanours. What realistic improvements are possible?.
Reading
. Aigbokhaevbo, O,and Ogbodo, G(2014) ,Oil Crimes; The Nigerian Dimension,I.E.L.R. 2014, 6, 212-221
Ryder,N and Broomfield, B(2014) ,Predatory lending and white collar crime: a critical reflection, I.C.C.L.R. 2014, 25(9), 287-293
Scott, B. (2008) Free Market Criminogenesis, Corporate Governance and International development, The Company Lawyer, Vol. 29. No 28 227
Mujih, E. (2008) Reform of the law of corporate killing: a Toughening or Softening of the Law, the Company Lawyer, Vol. 29 No3 pp 76-83
Sarker, R,J. (2007) Fighting Fraud a Missed Opportunity, The Company Lawyer, Vol. 28 No8 pp 243- 244
Maurer, V.G., (2007) Corporate Governance as a failsafe mechanism against corporate crime, The Company Lawyer Vol. 28 No 4 pp 99_105.
Jain, N. (2004) Significance of Mens rea in Insider Dealing: The Company Lawyer, Vol. 25 No.5 pp 132-140
Hemraj, M. B. (2004) Canada, Punitive Damages; Corporation ‘s failure to act in good faith, the Company Lawyer Vol. 25, No 5 pp 159-160.
Ashwin, A (2005) Tortious Liability of company in winding up: an analysis. The Company Lawyer, Vol. 26 No 6. pp 163-179.
Silter, J (2008) Real- time enforcement of crime in the capital markets, The Company Lawyer Vol. 29, No. 7 pp 208-210
Scanlan, G (2008) Offences concerning directors and officers, The Company Lawyer, Vol. 29 No. 9 pp 264-271
Bojarski, J ( 2007) Fighting Fraud and Corruption in Poland, The Company Lawyer, Vol. 28No. 9 pp 286-287
Bennett, C (2005) The market abuse link between Shell and Enron, The Company Lawyer, Vol. 286No 6 pp 180-185
Cavanagh, N (2011)Corporate criminal liability: an assessment of the models of fault J. Crim. L. 2011, 75(5), 414-440
Ferran, E (2011) Corporate attribution and the directing mind and will L.Q.R. 2011, 127(Apr), 239-259
Lehman, L (2007) The impact of preventative measures on corporate criminal responsibility I.B.L.J. 2007, 5, 713-728
Seminar 5 – The Development of Corporate Codes.
Preliminary Question:
There will always be frauds and malpractice. The law has not eliminated these, and nor- will self- regulation. It is nevertheless likely that self- regulatory input will slowly operate on the minds of those involved in corporate governance and change their values and the way in which they go about their tasks` (Pettet at pg 210). To what extent do you think that Pettet’s optimism in relation to self- regulation is justified?
The Growth in Corporate Codes
Cadbury Report
OECD Principles of Corporate Governance
World Bank
Global Corporate Governance forum
Advanced Reflective reading:
Black, C and Thangarajah, (2004) Congruence in governance standards; Similarities between OECD principles and ASX principles on corporate governance, The Company Lawyer, Vol.25 No12 pp 375-377
Trust, H (2000) Company Law at the Crossroads, the Company Lawyer, Vol. 21 No2 pp 67-68.
Ngwu, F,Anglo(2014)- American model and corporate governance failures in Nigeria: Beyond neo-liberal explanation with a focus on the banking sector, I.C.C.L.R. 2014, 25(10), 343-355
Lee, E(2014),The soft law nature of Basel 111 and international financial regulations,J.I.B.L.R. 2014, 29(10), 603-612
Seminar 6 – Shareholders and Stakeholders
Preliminary Question:
Explain the rationale and impact of the rule in Foss v Harbottle (1843). To what extent have the statutory reforms overcome the problems caused by the case?
Types of Shareholder actions:
The rule in Foss v Harbottle
Exceptions to the rule in Foss v Harbottle
The Breckland problem
Just and equitable winding up
Oppressive conduct
Unfair Prejudice.
Appointment of Inspectors.
Derivative actions
Other Statutory minority rights
Advanced Reflective Reading:
Shyam Kishore, V and Gupta,, S(2014) Derivative actions in India: problems and prospects, Comp. Law. 2014, 35(10), 314-320
Keay, A(2014) The public enforcement of directors’ duties: a normative enquiry ,C.L.W.R. 2014, 43(2), 89-119.
Keay, A (2014) An assessmewnt of private enforcement actions for directors breaches of duty, C.J.Q. 2014, 33(1), 76-92
Abigail, P et al(2014), Shareholder activism spreads globally.J.I.C. 2014, 15(2), 33-35.
Van der Elst.,C., (2014) The corporate response to shareholder activism ,ERA Forum 2014, 15(2), 229-242.
Aguilera, R and George, Y (2005) Global Strategy faces local constraints, Financial Times. Wednesday 27 May, 2005 (in Mallin)
Cheung, R (2008) The use of statutory unanimous shareholder agreements and entrenchment articles in preserving minority shareholder rights: a comparative analysis. The Company Lawyer Vol…29 No8… at pgs 234-241
Cheung, R (2008) Corporate wrongs Litigated in unfair prejudice claims: reforming the unfair prejudice remedy for the redress of corporate wrongs, The Company Lawyer, Vol 29 . No 4 pp 98-104.
Reisburg, A (2006) Derivative Actions and the funding problem: the way forward: The Journal of Business Law., August 2006, pp 445-467.
Keay, A (2007) Company Directors Behaving Poorly: Disciplinary Options for Shareholders, The Journal of Business Law, September 2007, pp 656-682.
Arora, A (2000) A review of minority shareholder protection, Company Lawyer, Vol 21 No. 2 p 37.
Cheffins, B (2000) Minority shareholders and corporate governance, Company Lawyer, Vol 21 No. 2 pp41-42..
Birchall, J (2005) Duties of Good faith in Commercial joint ventures? Contractual duties, Fiduciary duties, and shareholder Remedies., Journal Of Business Law, May, 2005 pp269 286.
Chiu, I. H (2006) Contexualising Shareholders’ Disputes,-a Way to Reconceptualise Minority Shareholder Remedies, Journal of Business Law, May 2006 pp 312-338.
Week 7 – Reading Week
Seminar 8 – Family Owned Firms
Preliminary questions:
1. What are the advantages and disadvantages of family owned- firms?
2. The need for a professional business approach is arguably even greater in a family firm than in a non family- firm (Sir Adrian Cadbury, 2000). Critically discuss this statement.
Family Owned Firms and Governance
Ownership Structures around the world
Smaller quoted companies
Reading:
Mallin, Chapter 5
Tricker Chapter 11.
Neubauer, F and Lank, A. G., (1998) The Family Business: Its Governance and Sustainability, Macmillan
Advanced Reflective Reading:
Olof Bjuggren, P and Lars-Goran ,S (2014) A contractual perspective on succession in family firms: a stakeholder view,E.J.L. & E. 2014, 38(2), 211-225.
Knappes, I (2014) and Schmid, T(2014) The effect of family governance on corporate time horizons, C.G. 2013, 21(6), 547-566.
.
Chen E,, Gray. S and Nowland, J(2o13).Family representatives in family firms. C.G. 2013, 21(6), 547-566C.G. 2013, 21(3), 242-263.
Lau, A., Nowland, J., and Young, A., (2007) In search of Good companies for Asian family listed companies: a case study of Hong Kong, the Company Lawyer, and Vol.28. No. 10 pp 306-311
Ward, J (2005) Keeping the business within the family, Financial Times, Friday 3rd of June, 2005 (in Mallin)
Henning,J.J. (2007) the enduring South African close corporations: 21 years of simply” thinking small first”- successfully, The Company Lawyer, Vol. 28 No. 8 at pp. 253-256
Henning, J. J.(2004) Company Law reform and the South African close corporation, The Company Lawyer Vol. 25, No. 3 pp 95-96
Seminar 9 – Directors
Preliminary Question:
The common law duties of care, skill and diligence were fashioned in an age when Directors served little more than a symbolic role. To what extent, has the Companies Act 2006, addressed the shortcomings of the previous law?
The Cadbury, Hapel and Combined Code Initiatives
Duty owed to the company
Competing Directorships
Duties of Care and skill
Fiduciary duties
Use of powers for an improper purpose.
Statutory duties
Relief from liability
Reading
Keay, A (2015) Applications to continue derivative proceedings on behalf of companies and the hypothetical director test C.J.Q. 2015, 34(4), 346-365
Teele Langford, R (2015) General law and statutory directors’ duties: “unmixed oil and water” or “integrated parts of the whole law”?L.Q.R. 2015, 131(Oct), 635-651
Woodburn, R (2014), Changes Ahead for Directors, C.S.R. 2014, 38(8), 57-58.
Pratt, A(2014) Directors’ Duties and Misfeasance,Recovery 2014, Sum, 36-37.
Cunningham, A (2014) Directors’ duties – alleged breach of duties owed – proof of breach or bad faith – analysis of an objective and subjective test for the exercise of directors’ duties. C.L. Pract. 2014, 21(4), 95-100.
Lam, C and Goo, S (2014) The duty of a Confucian director when the company is in turbulent times iI.C.C.L.R. 2014, 25(2), 66-70
Zhao, J and and Shuangge, W (2013) Gift giving, guanxi and Confucianism in a harmonious society: what Chinese law could learn from English law on aspects of directors’ duties Comp. Law. 2013, 34(12), 381-389
Arsalidou ` Directors’ Fiduciary Duties to Shareholders [2002] Co Law 61
Goddard, R` Competing Directorships`, [2004] The Company Lawyer, Vol 25. No. 1 pp 24-25
Hirt, H. C. ` Ratification of breaches of Directors’ duties` [2004 The Company Lawyer, Vol 25. no. 7 pp 197-212
Roach,` The Directors’ Remuneration Report Regulations 2002 and Disclosure of executive remuneration. ` [2004] Co Law 141
Finch, ` Company Directors: Who Cares about Skill and Care? ` [1992] MLR 179
Worthington, ` Reforming Directors’ Duties [2001] MLR 439
Keay, A (2007) Company Directors Behaving Poorly: Disciplinary Options for shareholders, The Journal of Business Law, September 2007, pp 656- 682
Read, R (2006) Company Directors: Collective or functional responsibility: The Company Lawyer, Vol. 27. No5. pp 170-178
Singla, T (2007) The fiduciary duties of Resigning Directors The Company Lawyer, Vol. 28 No.9 pp275-276
Jin Zhu Yang (2007) The anatomy of Boards of Directors: an empirical comparison of UK AND Chinese corporate governance practices, The Company Lawyer, Vol.28 No.1 pp 24-32
Hemraj, M.B.,(2005)Directors owe no duty to creditors- Peoples Department Stores v Wise Stores Inc (Quebec Court of Appeal, Unreported) The Company Lawyer, Vol. 26. No. 1 pp 31-32
Bamford, C (2000) Directors’ Duties: the public dimension, . Company Lawyer, Vol. 21 No. 2 pp 38-39
Lord Hope of Craighead,(2000) The duties of Directors
Sealy, L (2000) Directors’ Duties in the New Millenium, Company Lawyer, Vol. 21 No. 2 pp 64-65
Walters, A (2004) Section 236 of the Insolvency Act and directors’ disqualification, The Company Lawyer Vol. 25, No. 3 pp 90-92
Yang, J. Z., (2007) The anatomy of boards of directors: an empirical comparison of UK and Chinese corporate governance practices, The Company Lawyer, Vol. 28 No. 1 pp 24-32
Killian, C. G, 2008) Some notes on the application of the doctrine of proper purpose, The Company lawyer, Vol. 29 No 2 pp61-63
Lowry, J.P., (2005) Companies, The Journal of Business Law, September, 2005 pp640- 647
Lowry, J. P. (2008) Companies- conflict of interest, directors’ powers and duties, Fiduciary duty: resignation, Journal Of Business Law, Issue 1 2008 at pp83-91
Lowry, J. P. (2005) Companies,-parent companies, Shareholders, Subsidiary companies, Unfairly prejudicial conduct, Journal of Business Law March 2005 pp247- 257
Seminar 10 – Corporate Social Responsibility
Preliminary Question:
‘Companies are about making money, not social responsibility.’ Critically discuss this statement and comment on the role of institutional investors in the area of social responsibility.
Reading:
Mallin, Chapter 7.
Tricker Chapter 9
International Guidance.
The impact of shareholder Value.
Advanced Reflective Reading:
Harvey, F (2006) Investors shed Green light on Investment. Financial Times, 27 February, 20006
Young, A (2008) Rethinking the fundamentals of corporate governance: the relevance of culture in a global age, The Company Lawyer, Vol. 29 No. 6 pp168-175.
Ngwu,, F(2014) Anglo-American model and corporate governance failures in Nigeria: beyond neo-liberal explanation with a focus on the banking sector. I.C.C.L.R 2014.”5(10),343-355.
Bethel, U. J (2014 )The Governance of corporate social responsibility; developing an inclusive regulatory framework, Int. J.L.M. 2014 56(20 105-120.
Seminars 11 & 12
These sessions will be student led reflecting their interests and experience. Detailed planning of the sessions will take place in week 6 – prior to reading week. These seminars will therefore focus on Comparative issues.
Reading:
Mallin, Chapters, 10,11,12 & 13.
Dine & Koutsias chapters 18 & 19.
Bourne, Chapter 25…
Articles:
Andenas, M (2000) European Company law reform and th eUnited Kingdom, the Company Lawyer, Vol 21 No. 2 p 36
Li, K. X. (2005) Ant trust Control of Mergers and Acquisitiones in China: A Case Study of China, The Journal of Business Law, sep 2005 pp597-616
Li, K. X. (2007) Does China Need a Competition Law? The Journal of Business Law, March 2007, pp182- 208
Malkawai, B (2008) Buildinga Corporate Governance System in Jordan, A Critique of the Current Framework, The Journal of Business Law, Issue 6, 2008 pp488-508.
Drury, R (2005) The “ Delaware Syndrome”: European Fears and Reactions , The Journal of Business Law, November, 2005 pp 709- 745
Williams, M ( 2006) Seeds of its Own Destruction: Hong Kong’s Dysfunctional Competition Policy, The Journal of Business Law,, January 2006 pp 52- 74
Miles, L (2007) The Cultural Aspect of Corporate Governance in South Korea, The Journal of Business Law, November, 2007. pp851-868
Miles, L (2004) Recent developments in Corporate governance in New Zealand, The Company Lawyer, Vol. 25 No. 8 pp 246-251
Lau, K.L.A. (2007) A study of the listing applications in the people’s Republic of China, The Company Lawyer, Vol 28. No 23 pp 90-96
Singh, P (2007) Confronting Economic Crime: Singapore’sExperience, TheCompany Lawyer, Vol 28 No. 3 at pp.78-90
Dine, J (2000) The proper treatment of employees: the European Challenge. Company Lawyer, Vol. 21 No. 2 pp 45-46
Abugu, J. E.O. (2004) The Nigerian law on mergers and takeovers: a case of consistency and effectiveness, TheCompany Lawyer, Vol 25 No. 2 at pp.56-62
Monaci, E (2004) The Czech Rrepublic: The financial market an Overview, TheCompany Lawyer, Vol 25 No. 1 at pp.26-32
Aralidou, D (2005) Australia: An examination into the recent approach of the courts in articulating a standard of care for company chairpersons, The Company Lawyer, Vol. 26 No. 5 at pp. 155-160
Cheung, R (2008) The New Statutory derivative action in Hong Kong: a critical examination: The Company Lawyer, Vol. 29 No. 9 at pp. 278-286
Vodolazov, K (2004) Self Regulation of the Russian Securities Market, The Company Lawyer, Vol. 25 No. 5 at pp. 155-158
Jin, Z, Y. (2007) The anatomy of boards of company directors :an empirical comparison of UK and Chinese corporate governance practice, The Company Lawyer, Vol. 28 No. 1 at pp. 24-32
Hsaio, M (2007) An Analysis of the legal infra structures of Chinese financial derivatives trading and secitisation from and English comparative perspective, The Company Lawyer, Vol. 28 No. 10 at pp. 303-305
Krause, N & Qin, C (2007) An Overview of China’s new Company Law, The Company Lawyer, Vol. 28 No. 10 at pp. 316-320
Jayasuriya, D (2008) Sri Lanka’s new Companies Act; and Overview, The Company Lawyer, Vol. 29 No. 8 at pp. 250-251
Omar, P. J. (2004) France; the regime governing directors’ liability in insolvency and reform perspectives, The Company Lawyer, Vol. 25 No. 12 at pp. 378-384
O` Neill, A(2007) Relieving Directors: the Irish Approach, The Company Lawyer, Vol. 29 No. 10 pp 290-296
Lin, Z, J., Liu,L. M., and Zhang, X., (2007) The Development of Corporate Governance in China
The Company Lawyer, Vol. 28 No. 7 at pp. 195- 203
Young, A., Grace, L., and Alex. L.,(2007)- Corporate Governance in China: the role of the state in shaping reforms, The Company Lawyer, Vol. 28 No. 7 at pp. 204- 211.
Ho. D. H. K., (2007) International transfer pricing regulation: does east meet west? The Company Lawyer, Vol. 28 No. 7 at pp. 212- 223
Aldohni, A. K., (2008) Islamic Banking challenges modern corporate governance: the dilemma of the Shari’a Supervisory Board. The Company Lawyer, Vol. 29 No. 5 at pp. 156- 160
Guyon, Y (2000) Perspectives on the evolution of French company law, Company Lawyer, Vol. 21 No. 2 p48.
Tanabe, M (2000) Changing Climate in Japanese business circles, Company Lawyer, Vol. 21 No. 2 pp 66-67
Tomasic, R. and Fu, J (2006) Legal regulation and corporate governance in China’s top 100 listed companies, The Company Lawyer Vol. 27, No. 9 pp 278-286
Li, A. Y. S, and Ho, S, M,,(2006) Rebuilding market confidence: China’s revised company law., The Company Lawyer Vol. 27, No. 10 pp 311-315
Wooldridge, F (2004) Groups of Companies under Italian law, The Company Lawyer Vol. 25, No. 3 pp 93-94
Wooldridge, F (2004) The European Company, the successful conclusion of protracted negotiations, The Company Lawyer, Vol. 25 No. 4. pp121-128
Ebert, S (2004) The law applicable to groups of companies involving European companies, (Societas Europea), The Company Lawyer, Vol. 25 No. 4. pp108-113
Lau, K. L. A., Young,, A (2008) The2006 CSRC Guidelines for Articles of Association for Chinese Listed Compnies: critiquing From an Australian perspective, The Company Lawyer, Vol. 29 No. 6. pp180-183
Keay, A ( 2008) The Duty of Directors’ to exercise independent judgement, The Company Lawyer, Vol. 29 No. 10 pp 290-296