Littérature scientifique sur le sujet « Corporate governance – Law and legislation – Social aspects »

This paper evaluates the legal status of the Russian federal government as a corporate governance participant using the example of large sectorial companies. The state commonly regulates economic processes and focuses on pursuing the public interest. It also acts as a guarantor of social responsibility, and this affects decision-making processes in state-owned corporations. In Russia, the federal government has always played an essential role in the business activities of enterprises. Many companies are known to be state-owned or have close links to the state authorities and policymakers. This raises an academic debate concerning the development of market competition, state participation, and business environment. We propose approaches to understanding the participation of the state and unitary enterprises in corporate governance in Russia. By employing secondary data analysis as well as examining the Russian legislation in corporate law, we attempt to determine the legal and social status of the federal government in managing large corporations. This study addresses the issues of the duality of the legal status of the government in corporate governance and its impact on managerial decision-making.

Employee participation is deemed necessary in the name of good governance and corporate social responsibility. For this reason it forms an essential aspect of legal instruments drafted by international public institutions and aimed at multinational enterprises. Despite this, enterprises clearly prefer to take a unilateral approach in the rules they adopt to implement CSR policies, and an individual approach to employee relations, to the detriment of collective labour relations. CSR thus presents two radically different facets: one of which is favourable to transnational social dialogue, while the other presents firms with an opportunity to regain areas of control over their employees at the expense of public freedoms and fundamental rights. The co-existence of these two aspects of CSR confronts public authorities with the following dilemma: either they allow self-regulation to take its course, and risk seeing violations of international labour law and national legislation, or they intervene in order to ensure compliance with existing international instruments.

The concept of ‘Corporate Social Responsibility’ (CSR) has often relied on firms thinking beyond their economic interest despite the larger debate of shareholder versus stakeholder interest. India gave legal recognition to CSR in the Companies Act, 2013. CSR in India is believed to be different for two reasons: the dominance of family business and the history of practice of social responsibility as a form of philanthropy (mainly among the family business). This paper problematises the actual structure of business houses in India and the role of CSR in a context where the law identifies each company as a separate business entity while the economics of institutions emphasizes the ‘business group’ consisting of a plethora of firms as the institutional organization of business where capital owned or controlled by the family group is spread across the firms through the interlocked holding structures. Within this framework, the largest family firms, which are part of family owned business groups, top the CSR expenditure list. The governance structure of family firms allows family owned business group to show mandatory compliance of CSR even when they actually spend much less than what is prescribed by law. This aspect of the family firms is not addressed by the CSR legislation in particular or corporate governance legislation in general in India. The paper illustrates this with an empirical study of one of the largest family owned business group in India Reliance Industries Limited (RIL), which is well acclaimed for its CSR activities. The paper demonstrates how the business group through these series of shareholding network reduces its legally mandated CSR liability. The paper thus indicates the inadequacy of CSR legislation in India because the unit of compliance is an individual firm and it assumes that each firm is independent and only connected to each other through market dealings. The law does not recognize the inter-connections of firms (through common ownership and control) in corporate governance structures of family owned business group and hence is inadequate in its design to effect the threshold level of CSR expenditure. This is the central argument of the paper.

In an environment marked by growing claims regarding corporate social responsibility (CSR), debates on governance show the need for taking into account all the legitimate involved parties of the company within the framework of the legal or voluntary financial communication (Dowling and Pfeffer, 1975; Lind B lom, 1994; Gray et al.., 1995). If the accounting regulation, the laws and the rules in western countries require the consideration of the environmental aspects in the accounts and the annual reports of companies (Law NRE, Art 116, 2001), paradoxically in Africa, the OHADA accounting law remains silent on the problems of management generated by this CSR. Is this disinterest for the CSR justified for the OHADA accounting law? Does it mean that the CSR is excluded from African companies? Does it mean that in the OHADA zone the companies are in advance compared to the accounting legislation? In other words, is the OHADA accounting law still relevant to play its role of macroeconomic regulator? This paper examines the evaluations of the social and environmental impacts of the activities of companies and their integration in final accounts for a reliable, true financial communication and reflecting a true and fair view in the OHADA zone.

The article analyzes legal aspects of institutes of corporate governance. Different draft laws "On Joint-Stock Companies" are considered which reflected interests of separate groups of participants of market relations. Stages of property redistribution are outlined. The advantages of the model of the open joint-stock company are formulated. Special attention is paid to the demand for legal institutes of corporate governance as well as to the process of accepting the Federal Law "On Entering Amendments to the Federal Law "On Joint-Stock Companies"" which was enacted in 2002. The article contains proposals directed at improvement of corporate legislation.

AbstractThere have been notable legislative advancements, as well as improvements in corporate governance codes, aimed at protecting stakeholder rights. However, how much protection have they really afforded stakeholders against socially irresponsible corporate behaviour? This article undertakes a comparative analysis of the legal framework underlying South Africa's stakeholder-inclusive approach and Nigeria's environmental, social and governance or sustainability corporate reporting. It identifies a misplaced philosophical background as well as policy misalignment of corporate governance codes and primary corporate law as critical factors that undermine efforts to embed responsible corporate behaviour in order to safeguard the interests of qualified and legitimate stakeholders. It recommends specific amendments to address the ideological defect and align corporate governance codes with primary corporate legislation in these two countries.

Purpose This paper aims to examine how the governance structure incorporates corporate social responsibility (CSR) into corporate behaviour in the perspective of the external environment within emerging countries. Design/methodology/approach The paper reviews the various CSR legislations enacted in the global context and in particular reference to the Indian Companies Act 2013. Findings The embedded relationship between CSR and corporate governance (CG) is an outcome of extensive dimensions such as ownership structure, stakeholder approach and other external environmental factors such as the government regulations and legislation, legal enforcement and corporate disclosure culture. Originality/value The enactment of the Companies Act 2013 in India has infused a new direction for the corporations in implementing CSR and CG practices. This paper throws light on the coverage of the Companies Act 2013 and various challenges faced by the companies in the applicability of the CSR and CG framework in the Indian context.

This study sets the task of studying the legal aspects of corporate governance in the context of existing international law. Consideration of issues related to the legal aspects of corporate governance is of great importance for the development of common criteria for evaluating their activities from the point of view of existing legal norms. The development of ever new forms of public organizations and the need to develop legislative norms to regulate their activities only emphasizes the importance of the issue under study. The relevance of this problem is of particular importance in light of the fact that to date, the laws of most countries have not yet developed clear criteria governing the corporate activity. This fact leads to difficulties in studying this issue and the high probability of misunderstanding in matters of corporate activity and corporate governance features, not to mention giving this activity a proper assessment from the standpoint of the norms of current legislation. This study sets the task of studying the fundamental legal rules regulating the corporate governance of Ukraine and foreign countries with the identification of the similarities and differences of existing legal standards. The method of comparative analysis of works of domestic and foreign researchers in the framework of the subject under consideration was selected. The applied value of this material is to identify the main criteria for the compliance of the current aspects of corporate governance with international law with a view to the subsequent application of the results in practice. The research prospects in this direction from a legal point of view consist in comparing the current legislative acts regulating international law with regard to corporate governance issues, which opens up great opportunities for analysis of all the provisions of corporate governance and bringing them into line with the norms of existing international law.

This new issue contains articles that deal with both theoretical and practical aspects related to corporate law and corporate governance in countries such as India, Indonesia, Greece, Jordan, and the United Arab Emirates (UAE). A wide range of fascinating topics is covered, including corporate social responsibility (CSR), bribery, cryptocurrency and money laundering, free trade agreements (FTAs), and the World Trade Organization (WTO)

The political environment of corporations has been evolving rapidly. There has been increasing pressure to hold corporations accountable for social, environmental and political aspects of the business enterprise – even the very purpose of the corporation has been challenged. The salience of corporate matters has increased overall as a result of changes in the political environment and an increasing awareness of corporate externalities. With the growing economic and political significance of corporations, corporate governance has emerged as a relevant framework for political action. These developments have affected the relationships among corporate constituencies and the boundaries of the corporate enterprise. Based on a political approach to corporate governance, this paper considers the resulting implications for the legal premises of corporate governance in an EU context. The paper argues that current corporate structures may not reflect the requirements of the rapidly evolving political environment. Corporate governance, corporate social responsibility, politicization of the corporation

"October 2008"
Thesis (PhD)--Macquarie University, Division of Society, Culture, Media and Philosophy, Dept. of Sociology 2009.
Bibliography: leaves 273-293.
Introduction -- Patterns of corporate activity as patterns of corporate dominance: legal, organisational, and economic features of corporations -- Representations of corporate dominance in insidious injuries -- The legal basis of corporate dominance: History of the corporation -- Legal individualism and corporate personhood -- Theories of the corporation -- The legal regulation of corporations - corporate liability laws -- Conclusion.
Corporations are no longer simply a type of business structure; they are dominant social institutions. As institutions, corporations are archetypes of contemporary complex social organisation and should, therefore, be a central concern for sociology. Yet with few notable exceptions, sociologists have failed to address their increasingly dominant position in contemporary societies. In this thesis I argue the importance of a renewed sociological interest in corporations. This must acknowledge, but go beyond, the political-economic outcomes of corporations to address the profound consequences of the legal foundations of the corporate form. Corporations are created and regulated by legal doctrine; it is only with a legal mandate that corporations are able to act as employers, suppliers and investors. On this basis, I claim that any understanding of corporate dominance and its effects must commence with an appreciation of the laws that enable the corporation to exist and operate. -- While contributing significantly to wealth creation, corporate dominance also increases the potential for harm to occur to individuals and communities who fall within a corporation's scope. The contemporary proliferation of industrial illnesses is a prime example of this and is examined through a case study of the operations of an Australian asbestos corporation, James Hardie. This case study is timely and unique in its specification of the link between corporate activity and law in contemporary society. -- I argue that corporate activity such as that in the case study is enhanced and legitimated by the legal description of the corporation that assigns to it the capacities of a human individual through corporate legal personhood. Corporate personhood is examined as an example of the legal individualism endorsed in liberal common law countries. By exploring accounts of corporate structure, decision-making and work processes, I explain how the individualised description of the corporation is at odds with its collective realities; the largest and most successful corporations are collectives of human and monetary resources. -- In light of this, I question the extent to which the effective regulation of corporations can be achieved within existing legal frameworks. Building upon research into workplace health and safety in the United Kingdom, the regulation of workplace deaths in Australia is examined to demonstrate the various approaches to regulating corporations and to identify their shortcomings. This is a striking example of the problems law faces in regulating corporations by virtue of its individualistic design. -- The thesis concludes with an affirmation that sociology needs to grapple with issues of corporate activity and that an understanding of the legal basis of the corporation is the foundation of such studies.
Mode of access: World Wide Web.
295 leaves

The thesis is about the re-incorporation of women, on feminist terms, in corporate law and structure. Working from the idea of feminism as a theory about exclusion, the thesis endeavours to include women's voices in how the dominant discourse shapes corporations and the securities markets. Moreover, it attempts to capture the feminist continuum and use it as a critique of the existence of the separate entity of the corporation and limited liability. The thesis also joins the corporate governance debate on feminist terms, reshaping its scope to include feminist aspirations. The market for securities and insider trading are also subject to a feminist analysis and the problems in policing and preventing insider trading are rethought through a feminist lens.

Social media is fast becoming an ever-increasingly significant part of the world of business and a phenomenon which cannot be evaded. The advent of social media in the workplace compels organisations to acclimatise to the transformation emanating from employees‟ adoption of these technologies (Hanaki & Casella, 2008). Approximately seventy percent of organisations do not have a social media governance framework in place (Fink et al., 2011). Social media governance in organisations is very disjointed; companies have varying stances as to social media strategy, the risks, benefits and business use of social media (Thompson et al., 2011). The growth of social media and its use in the business environment will see a more standardised approach to social media governance (Thompson et al., 2011). Being at the forefront of technology development in Africa, and in certain areas, globally (Government of the Republic of South Africa, 2012), places added emphasis on IT organisations in South Africa to set the standard as it relates to social media governance. The diversity and depth of the human and technology resources within these organisations, creates an environment conducive to establishing and pioneering sound social media governance structures. The treatise consists of a study on the governance of social media and the successive development of two frameworks; an integrated framework for the governance of social media in the workplace, as well as integrated framework for a social media policy within an IT organisation. These frameworks are empirically evaluated amongst employees, within the context of Information Technology (IT) organisations, in South Africa. Several recommendations are proposed by the author in relation to the adoption of the proposed frameworks.

This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.

This dissertation analyzes the development of the Islamic Society of North America (ISNA), a Muslim-American religious association, from the Iranian Revolution to the inauguration of our nation's first African-American president. This case study of ISNA, the largest Muslim-American organization in North America, examines the organization's institution-building and governance as a way to illustrate Muslim-American civic and religious participation. Using nonprofit research and theory related to issues of diversity, legitimacy, power, and nonprofit governance and management, I challenge misconceptions about ISNA and dispel a number of myths about Muslim Americans and their institutions. In addition, I investigate the experiences of Muslim-Americans as they attempted to translate faith into practice within the framework of the American religious and civic experience. I arrive at three main conclusions. First, because of their incredible diversity, Muslim-Americans are largely cultural pluralists. They draw from each other and our national culture to develop their religious identity and values. Second, a nonprofit association that embraces the values of a liberal democracy by establishing itself as an open organization will include members that may damage the organization's reputation. I argue that ISNA's values should be assessed in light of its programs and actions rather than the views of a small portion of its membership. Reviewing the organization's actions and programs helps us discover a religious association that is centered on American civic and religious values. Third, ISNA's leaders were unable to balance their desire for an open, consensus-based organization with a strong nonprofit management power structure. Effective nonprofit associations need their boards, volunteers and staff to have well-defined roles and authority. ISNA's leaders failed to adopt such a management and governance structure because of their suspicion of an empowered chief executive officer.

This thesis examines a crisis of governance in the Republic of South Africa (RSA), a crisis which threatens Constitutionally guaranteed intergenerational rights to water, meaning these rights are unlikely to be upheld. RSA's post-1994 Constitution incorporated a number of historically unparalleled human rights, based on fundamental principles of human dignity and equality. This includes the right to water resources for current and future generations - making RSA one of a few countries to enshrine intergenerational rights in law. Under law, Government acts as fiduciary trustee with duties to protect the water resources for current and future generations of citizens. The thesis asserts that influences of Emmanuel Kant, John Rawls and Edith Brown Weiss are reflected in the Constitution and subsequent laws. However, historical and on-going impacts from extractive industries in the province of Gauteng are negatively impacting upon intergenerational water rights. Acid mine drainage is an acidic wastewater produced as a by-product of mineral extraction - particularly gold. It is polluting ground- and surface-waters across the province. A lack of effective government response to this issue has meant that AMD is acting as a catalyst accelerating the country's already problematic governance processes to a crisis level. As it has no long-term management plan, the government is neglecting its intergenerational responsibilities and abrogating Constitutional purpose. This situation is exacerbated by multiple, often conflicting, understandings in different sectors of society of the significance of intergenerational equity, further reinforcing the governance crisis. Due to lack of government response, non-State agents, specifically the mining and financial sectors, are becoming increasingly involved in political decision-making and governance. This has positive short-term effects in ensuring that the rights of communities that were previously affected by water shortages and pollution are upheld. Yet there are potential serious long-term repercussions for democracy in RSA as a result: non-State actors are not best equipped to determine outcomes of governance, and this may result in procedures of deliberative democracy being contravened. Robert Dahl's theories inform this thesis's understanding of deliberative democracy. Consequently, although RSA's Constitution guarantees intergenerational equity in theory, it is hard to achieve in practice. This is due to the governance crisis that has been precipitated by acid mine drainage, so that intergenerational rights to water are an unlikely long-term outcome for this developing nation.

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Os bancos públicos representam, historicamente, importante instrumento do governo federal no âmbito da formulação e implementação de políticas públicas. A relevância das ações materializadas por eles, principalmente, em relação ao desenvolvimento econômico e social, por meio da utilização de vultosos recursos oriundos do tesouro nacional, desperta a atenção da sociedade interessada em conhecer mais sobre as operações de empréstimos. A política de transparência torna-se central à luz de relevantes conceitos de democracia e de desdobramentos importantes de publicidade, prestação de contas e Accountability, principalmente após a Constituição de 1988 pela necessidade de efetivação de mecanismos democráticos. Desta forma, esta pesquisa busca contribuir tanto para a discussão teórica quanto para a base empírica do tema de transparência nos bancos públicos. Com a realização de pesquisa documental estruturada para levantamento de dados e informações, foi possível analisar os fatores apresentados a partir dos casos do Banco do Brasil (BB), da Caixa Econômica Federal (CEF) e do Banco Nacional de Desenvolvimento Econômico e Social (BNDES), avançando no debate da transparência dos bancos públicos. Esta pesquisa exploratória explica, além de outros fatores, como o conceito de transparência aplicado ao objeto de banco público no Brasil assume a característica de “conceito essencialmente contestado” (GALLIE, 1956).
Historically, public banks represent important instrument of the federal government as part of the formulation and implementation of public policies. The relevance of actions materialized for them, especially in relation to economic and social developments, through the use of significant resources from the national treasury, arouses the attention of the society interested in learning more about the loans. The policy of transparency becomes the central about the relevant concepts of democracy and important developments of advertising and accountability, especially after the 1988 Brazilian Constitution by the need for effective democratic mechanisms. Thus, this research aims to contribute both to the theoretical discussion as to the evidence base theme of transparency in public banks. With the completion of documentary research for structured data collection and information, it was possible to analyze the factors presented cases from the Bank of Brazil (BB), Caixa Economica Federal (CEF) and the National Bank for Economic and Social Development (BNDES), advancing the discussion of transparency of public banks. This exploratory research explains, among other factors, how the concept of transparency applied to public database object in Brazil takes on the characteristic of "essentially contested concept" (Gallie, 1956).

Defence date: 14 June 2018
Examining Board : Professor Giorgio Monti, European University Institute ; Professor Martin Scheinin, European University Institute ; Professor Wouter Vandenhole, University of Antwerp ; Professor Vibe Garf Ulfbeck, University of Copenhagen
The doctoral dissertation assesses the effectiveness of the current solutions for transnational corporate accountability in regard to human rights focusing on the United States, England, and Denmark from a critical perspective of Third World Approaches to International Law (TWAIL). This issue has evolved because corporations increasingly face human rights challenges in a competitive global business environment across different industries, including the textile sector, the extractive industry, and the oil industry to name a few examples. The thesis mapped out the current binding human rights obligations of corporations and compared the efficacy of the three jurisdictions’ use of transnational human rights litigation, multi-stakeholder initiatives (MSIs), the UN Guiding Principles on Business and Human Rights (UNGPs) and national action plans (NAPs). The legal frameworks form a necessary postmodern polycentric governance approach to the issue but are insufficient from a comparative- and TWAIL perspective in preventing or remedying corporate human rights violations because of their incoherent, uncertain and non-binding nature. The current frameworks do not adequately address the reality of certain developing states’ need to attract foreign direct investment by keeping their regulatory systems powerless. TWAIL scholars point out that in particular international financial- and economic institutions such as the World Bank, IMF, and WTO undermine developing states’ human rights governance capacity. To address this problem, the thesis assessed the added value of the UN Business and Human Rights Treaty Proposal from a TWAIL perspective and found that it has potential to solve the structural imbalances between companies and host states. However, the thesis proposes new treaty obligations for states, corporations, and international financial-and economic institutions to provide more legal certainty, greater democratic influence and access to justice for Third World human rights-holders than the current options provide. Compared to existing literature, this thesis contributes with a new profound legal and empirical analysis integrating recent case law to assess the efficacy of corporate accountability for human rights using both a Global North and TWAIL perspective. The thesis concludes that the proposed adjustments facilitate consensus on a binding multilateral treaty considering the economic and competitive advantages for both Global North- and South states and businesses as well as the empowerment of the transnational judicial system for Third World communities.
Chapter 3 'Judicial Accountability' of the PhD thesis draws upon an earlier version published as chapter 'Transnational corporate liability for gendered harms in the fashion sector from an American and Danish perspective' (2015) in the book 'Human rights and business : direct corporate accountability for human rights'

The right to education is entrenched in the Constitution of the Republic of South Africa, 1996. The Constitution, together with various policy documents, provides guiding principles for the transformation of higher education in South Africa. Several universities were placed under administration, before and after the attainment of democracy in South Africa. The independent assessors reports on these institutions have one thing in common, namely that they point out poor administration and ineffective corporate governance practices. Despite many commendable initiatives by Government since 1994 to improve an apparently flawed higher education system, some aspects could be enhanced further, especially concerning corporate governance and governance accountability. Council members and the executive management of higher education institutions are subject to common law fiduciary duties and duties of care and skill. However, their accountability for breaches of these duties is not always clear and is seldom enforced. There is a need to balance effective accountability and the exercise of discretionary powers that are integral to effective governance and management. This thesis considers how corporate governance and compliance in higher education can be improved further, taking into account various legislative changes to the Higher Education Act 101 of 1997, direction provided by the Companies Act 71 of 2008 and the Banks Act 94 of 1990 in respect of the regulation of directors’ duties. An in-depth investigation into the relevant provisions of these Acts was not intended nor undertaken. Rather, the thesis draws from these Acts so that the problems concerning corporate governance in the higher education sector may be dealt with. The regulation of higher education in the foreign jurisdiction of the State of Georgia in the United States of America and in the Canadian province of Ontario was also considered. Based on the research undertaken, specific amendments are proposed to the Higher Education Act of 1997 and the Regulations for Reporting by Public Higher Education Institutions 2014, which are aimed at improvin higher education.
Die reg op onderwys word in die Grondwet van die Republiek van Suid-Afrika 1996 verskans. Riglyne vir die transformasie van hoër onderwys in Suid-Afrika word in die Grondwet en verskeie ander beleidsdokumente vervat. Voordat en nadat ‘Suid-Afrika demokraties geword het, is verskeie universiteite onder administrasie geplaas. Luidens die onafhanklike assessore se verslae, het hierdie instellings een ding gemeen gehad: swak administrasie en ondoeltreffende korporatiewe regering. Ondanks talle prysenswaardige stappe van die regering sedert 1994 om die probleme in die hoëronderwysstelsel te ondervang, kan bepaalde aspekte steeds verbeter, in die besonder korporatiewe regering en regeeraanspreeklikheid. Raadslede en lede van die uitvoerende besture van hoëronderwysinstellings is verplig om hulle gemeenregtelike fidusiêre pligte en hulle sorgvuldigheids- en kundigheidsplig na te kom. Hulle verantwoordingspligtigheid in geval van pligsversuim is egter dikwels vaag en word selde afgedwing. Die juiste ewewig moet gevind word tussen doeltreffende verantwoordingspligtigheid en die uitoefening van diskresionêre magte wat onlosmaaklik deel is van doeltreffende korporatiewe regering en bestuur. In hierdie tesis word gekyk hoe korporatiewe regering en nakoming in hoër onderwys verbeter kan word met inagneming van verskeie wysigings van die Wet op Hoër Onderwys 101 van 1997, riglyne in die Maatskappywet 71 van 2008 en in die Bankwet 94 van 1990 aangaande die pligte van direkteure. Geen grondige ondersoek na die toepaslike bepalings in hierdie wette is beoog of gedoen nie. Hulle word eerder gebruik om oplossings vir die probleme met korporatiewe regering in hoër onderwys te vind. Hoe hoër onderwys in die Amerikaanse deelstaat Georgia en die Kanadese provinsie Ontario gereël word, is eweneens in ag geneem. Wysigings van die Wet op Hoër Onderwys van 1997 en die Regulations for Reporting by Public Higher Education Institutions 2014, wat poog om verantwoordingspligtigheid en voldoening in hoër onderwys te verbeter, word voorgestel.
Ilungelo lokufunda liqukethwe uMthethosisekelo woMbuso waseNingizimu Afrika, wangonyaka ka 1996. UMthethosisekelo, kanye neminye imibhalo eyahlukahlukene yemigomo, inikeza umhlahlandlela wemigomo yokuguqulwa kwamaziko emfundo ephakeme eNingizimu Afrika. Amanyuvesi ahlukahlukene amiswa futhi, ngaphambili nangemuva kokuthola idemokhrasi eNingizimu Afrika. Imibiko yabaphenyi bamanyuvesi abazimele inophawu olufanayo, lokuthi iveza ukungahanjiswa kahle kohlelo lokuphatha kanye nokungalandelwa kwezingqubo zokuphatha amabhizinisi. Yize kunemizamo eminingi encomekayo evela uHulumeni kusukela ngonyaka ka 1994, imizamo yokuthuthukisa uhlelo lwemfundo ephakeme olwehlulekayo, ezinye zezimpawu zaqhubeka nokuqiniswa, ikakhulu lezo ezimayelana nokuphathwa kwamaziko kanye nokuziphendulela kwamaziko. Amalungu omkhandlu kanye nesigungu sabaphathi bamaziko emfundo ephakeme bayaphoqeleka ukulandela umthetho ngokuthi benze imisebenzi ngokuthembeka okuyimisebenzi emayelana nokunakekela kanye namakhono okusebenza. Yize-kunjalo, ukuziphendulela kwabo uma bephula imithetho kaningi akucaci kahle kanti le mithetho ayivamisile ukuqiniswa. Kunesidingo sokulinganisa uhlelo olusebenzayo lokuziphendulela kanye nokusebenzisa amandla okuphatha onikezwe wona, okungamandla ayinsika ekuqiniseni uhlelo lokuhanjiswa kahle kwamaziko kanye nokuphathwa. Le thesis iqonde ekutheni ngabe uhlelo lokuphathwa kwamaziko kanye nokulandelwa kwemithetho emazikweni emfundo aphakeme kungathuthukiswa kanjani, uma kubhekwa izinguquko zomthetho ezahlukahlukene, kuMthetho 101 weMfundo Ephakeme ka 1997, uma kubhekwa indlela enikezwa uMthetho 71 weziNkampani ka 2008 kanye noMthetho 94 wamaBhange ka 1990 mayelana nomthetho wemisebenzi yabaqondisi. Akukaze kube nenhloso futhi kwenziwe uphenyo olujulile mayelana nemithetho efanele yale Mithetho. Kunalokho, ithesisi yencike phezu kwaleMithetho ukuze izinkinga ezimayelana nokuphathwa kwamaziko emkhakheni wemfundo ephakeme zidingidwe kahle. Umthetho wemfundo ephakeme esiyingini somthetho sangaphandle se-State of Georgia ngase-United States of America kanye nasesifundazweni saseCanada ngase-Ontario nawo uye wabhekwa. Ngenxa yocwaningo olwenziwe, sekuye kwaphakanyiswa ukuthi kube nezinguquke ezithile eMthethweni weMfundo ePhakeme ka 1997 kanye naseMithethweni yokuBika yamaZiko eMfundo ePhakeme oMphakathi ka 2014, okuyimithetho ehlose ukuthuthukisa izinga lokuphatha okunokuziphendulela kanye nokulandela umthetho wemfundo ephakeme.
Mercantile Law
LL. D.

Defence date: 03/06/2009
Examining Board: Prof. Fabrizio Cafaggi, (EUI, Supervisor); Prof. Marie-Ange Moreau, (EUI); Prof. Francesco Vella, (Universitá di Bologna); Prof. Charlotte Villiers, (University of Bristol)
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
This thesis analyses recent developments in the field business regulation associated with Corporate Social Responsibility (CSR) through a study of mechanisms for institutionalizing it. I analyse these developments from three different perspectives: academic, practice, and legislative. My aim is to assess if CSR is conceptualized in the same way and if not to understand why. The ultimate goal was to confront these different approaches hoping that the results of the comparison will enrich and improve the knowledge in this field. In the first part of the thesis, I focus on the concept of Corporate Social Responsibility and I analyse the main issues of the debate. Moreover, I present the legal and non-legal mechanisms for institutionalizing CSR at the level of business organizations suggested over the years in the academic literature. In the second part of the thesis, I focus on the impact of globalization and of the sustainable development movement on the CSR debate. I focus on two main aspects: the standards for corporate social and environmental performance set in the so-called 'CSR instruments' and the integration of CSR at the level of the organization. This part is mainly based on case studies in order to present the business point of view on CSR. In the third part, I analyse CSR in the specific context of three legal systems: United States, United Kingdom and Germany. I analyse the national policies in the field of CSR adopted in United Kingdom and Germany. Moreover, I analyse the weight that various mechanisms for institutionalizing CSR presented in the first part of the thesis have in each legal system presented. The core research question is: Which is the precise scope of Corporate Social Responsibility, assuming that it is desirable, and which are the suitable mechanisms for institutionalizing it? The law and other developments are stated as at the end of August 2008.

The Corporations Act of 2001 regulated the probable insolvency proceedings of all companies incorporated in Australia and companies incorporated or possessing separate legal. For personal insolvency, a specific legislation called Bankruptcy Act is there, but the basic framework of corporate insolvency law has been there since the inception of Corporations Act 2001 enactment, which includes all the aspects of company formation, management, governance, and dissolution. The authors have highlighted recent reforms; however, the main concentration of this chapter is on the legal infrastructure of corporate insolvency law at present as the reforms are not yet in force. The chapter also puts forth the problems faced by corporate debtor and creditors in the proceedings of insolvency resolution and has also expressed the scenario of cross-border insolvency in Australia in light of UNICTRAL Model law of cross-border insolvency which has been adopted by the Australian government in 2008.

This work attempts to state the law of England and Wales relating to the duties and liabilities of directors of companies, both civil and criminal. The most important elements of the legal framework affecting these matters are the company’s constitution and the Companies Act 2006, but particular aspects of a director’s conduct may engage other statutory provisions (eg Insolvency Act 1986 or criminal legislation). Common law rules and equitable principles provide the background that informs the interpretation of the legislation and the assessment by the court of a director’s conduct. Also relevant are ‘industry standards’ such as the UK Corporate Governance Code, which applies to listed companies, and guidance from the Financial Conduct Authority (FCA) for companies subject to its regulation.

The problem of bankruptcy prevention is growing in importance under conditions of the decline of economic growth and quarantine restrictions caused by the COVID-19 pandemic, which has significantly affected the domestic economy. In the second reading, the Ukrainian Parliament adopted amendments to the Code of Ukraine on the Bankruptcy Procedure, which banned moratorium on bankruptcy initiation by the creditors. Thus, there was approved “Draft Law on Amendments to Certain Legislative Acts to Regulate Certain Issues of Bankruptcy Procedures for the Period of Implementation of the Measures Aimed at Preventing the Emergence and Spread of the COVID-19 Pandemic” No 4220. This moratorium was introduced in the framework of measures for business support due to the COVID-19 pandemic. Quarantine restrictions caused by the COVID-19 pandemic have affected many businesses throughout the world. First of all, this is due to strict quarantine measures imposed by the governments of many countries: closure of shopping and entertainment centers, a ban on all public events, restrictions on the movement both within the country and when crossing its borders, reduction of production (due to the establishment of limits for the simultaneous stay of workers in one room), etc. Quarantine has ruined consumer sentiment and almost halted several industries including retail, hotel and restaurant business, air travel. The amount of budget revenues has decreased. As a result of quarantine, Ukrainian companies have frozen investments and production chains, and some of them are on the verge of bankruptcy. The main economic sign of bankruptcy is reduced to a single point. It is inability of the enterprise to meet the requirements of creditors. However, in order to avoid numerous bankruptcies on insignificant debts, the minimum amount of debt is determined, at which a bankruptcy case can be initiated. Macroeconomic efficiency of the institution of bankruptcy directly depends on the systemic nature of the relevant fragment of the national legislation, availability of the detailed representative economic statistics and the level of conceptual development of effective anti-crisis regulation. At the level of microeconomics, bankruptcy means not just stopping the local production process, i.e. the loss of a sustainable source of permanent income and social security. And at the level of macroeconomics there is the opposite situation; bankruptcy means rehabilitation of production from inefficient forms of its organization and inefficient management, overcoming cyclical recession and modernization of the technological base of production. A modern approach to the study of bankruptcy is associated with the definition of objective economic signs of corporate bankruptcy and specific signs of financial insolvency of the enterprise, assessment of the effectiveness of basic legal procedures for bankruptcy (supervision, external management, bankruptcy proceedings, and amicable settlement). Financial preconditions for insolvency and bankruptcy of the enterprise are analyzed in accordance with Methodical recommendations on detection of signs of insolvency of the enterprise and signs of concealment of bankruptcy, fictitious bankruptcy or bringing to bankruptcy; Methodology of in-depth analysis of the financial and economic condition of insolvent enterprises and organizations. Financial statements are the sources of information for analysis and detection of signs of bankruptcy. To predict the risk of bankruptcy, it is necessary to be guided by regulatory sources, data of accounting, statistical, operational accounting and reporting. Necessary information can also be obtained from documentary inspections, audits, orders, directives, economic and legal materials (contracts). To study the results of financial and economic activities of the object of study there can be used accounting data, which contains extensive analytical information. According to primary documents, it is possible to establish the causes of overspending, payment of fines, perpetrators, determine the legality and appropriateness of business transactions. The main sign of bankruptcy is inability of the company to comply with creditors’ claims within three months from the date of payment. After this period, creditors have the right to apply to the arbitral tribunal to declare the debtor company a bankrupt. Bankruptcy is the result of interaction of internal and external factors. Due to the limitations of the COVID-19 pandemic, 1/3 of the business destruction is associated with internal factors and 2/3 with external factors. Bankruptcy characterizes realization of catastrophic risks of the enterprise in the course of its financial activity, as a result of which it is unable to meet the requirements set by creditors and meet obligations to the budget. Among a wide range of methods used to determine the characteristics of various phenomena and processes, to identify the features of development, to study the dynamics of changes at the enterprises under conditions of the threat and development of crisis, there can be distinguished the main ones: expert (expert assessments); research and statistical; analytical; method of analogues. The whole set of methods for assessing the state of the enterprise is based on three main approaches, which include: the use of a system of indicators and informal indicators (criteria and features); setting the maximum number of indicators in different areas of the enterprise; creation of a separate system of integrated indicators. In the practice of analysis and assessment of the enterprise state the most common approach is the one that involves the use of a system of indicators and informal indicators. Integrated factor models developed using multidimensional multiplicative analysis are often used to assess the probability of bankruptcy and the level of creditworthiness of the enterprise. Bankruptcy forecasting methods based on the use of financial ratios are as follows: Two- and five-factor models for estimating the probability of bankruptcy based on Altman’s “Z-score”; Model of Roman Lis, W. Beaver; Method of rating assessment of financial condition (rating number); R – bankruptcy risk prediction; Taffler’s prediction model; Fulmer’s model; Springgate model; Generalized model developed on the basis of discriminant function; PAS-ratio. Integrated factor models of E. Altman, Lis, Taffler, Tishau and others are often used to assess the probability of bankruptcy and the level of creditworthiness of the enterprise (Table 1), developed using multidimensional multiplicative analysis.