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

"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 principal intent of this thesis is to study the impact of the new corporate governance regulations introduced in March 2003 by the Australian Stock Exchange Corporate Governance Council (ASXCGC) which the ASX convened in August 2002 to develop guidelines to reflect international best practice. The new governance guidelines titled ‘Principle of Good Corporate Governance and Best practice recommendations’ are premised on the principle of the ‘if not, why not’ model similar to the ‘comply-or-explain’ introduced by the UK Cadbury Committee in 1992. The best practices recommended by the new guidelines are not strictly mandatory. Companies can choose not to follow the best practices by explaining why they are not appropriate to their circumstances. The ASXCGC adopted this particular model in light of the considerable differences in the size of the companies making up the Australian stock market. In this thesis, the new governance regulation has been examined from two perspectives: (i) responses by companies to the new regulation and (ii) benefits to the companies flowing from adopting the new best practice guidelines particularly with respect to winning investors’ trust and confidence which had been severely weakened by the corporate crises of 2001 triggered by the collapses of high profile corporations in Australia and overseas jurisdictions, primarily in the USA. The first research question which relates to the change in the corporate governance practices of Australian listed companies following the introduction of the ASX guidelines was investigated using a descriptive analytical approach. The findings showed a considerable improvement in company’s governance practice in the areas of board independence, establishing board subcommittees to effectively deal with controversial issues of audit, remuneration and directors’ nomination, and developing and maintaining policies and procedures aimed at encouraging directors and managers to be ethically responsible. However, there appears to be a substantial gap in compliance between guidelines that requires companies to have policies compared to those requiring structural changes. The benefit to the company from adopting the new regulations, particularly in regard to repairing investors’ confidence reduced by the financial crises, is addressed by a second research question – how the company’s level of compliance with the ASX guidelines affected investor confidence? This is tested by means of a quantitative analytical approach employing OLS Regression model with the inclusion of a proxy variable for investor confidence. This methodology was a departure from the usual approach to studying investors’ opinions (i.e. questionnaire survey). The findings showed that companies adopting the ASX guidelines experienced significantly lower stock return volatility (proxy for the investor confidence), suggesting that compliance with the recommended best practices improved investor confidence. This confirmed the general expectation, and is consistent with previous studies, that the new regulatory guidelines would on average improve investors’ confidence. Another important finding of this analysis was that the guidelines governing managers’ behaviour and the company’s financial integrity are not effective on their own but that they complement the overall effectiveness of the company’s corporate governance system. The third research question addresses whether company specific characteristics such as size, age, growth rates, leverage, and industry could help explain the likelihood of the company complying with the best practice guidelines particularly with board and board subcommittee related. This is examined quantitatively, using the Binary Logit Regression model. This analytical method predicts the potential explanatory power of company specific variables in the company’s compliance decision instead of simply descriptively presenting level of compliance which has been the common method used by the previous studies. The findings provide statistically significant evidence suggesting that the likelihood of the company complying with recommended best practices is influenced by company specific characteristics. The findings are consistent with the inherent assumption built into the guidelines that companies differ in size and diversity. The final research question addresses whether company specific factors are also associated with the quality of explanations given for deviating from the board and board subcommittee related guidelines. This particular research issue is very important because previous studies, particularly those relating to the Australian context, appear to have overlooked this possibility altogether. Given the polychotomous nature of the outcomes of the dependent variable, a Multinomial Logit Regression model is applied. The findings provide evidence suggesting that company specific factors may explain a company’s reason given to justify the deviation. However, the findings also reveal that larger companies do not necessarily provide an adequate reason to justify non-compliance. More importantly, the findings shows that a considerable number of companies have failed to provide any form of reason to justify their deviations while others provided reasons which were generic and uninformative. This not only suggests that those companies have been ignoring the basic intent and spirit of the guidelines, but also implies that the relevant Listing Rule which required companies to explain each instance of non-compliance has not been effectively enforced.

This thesis examines Corporate Social Responsibility (CSR) in the context of International Oil Companies operating in Iraq. International oil companies are the focus for examining CSR because the oil and gas industry is the backbone of the Iraqi economy and the primary source of government revenue. Corporate social responsibility requires corporations to act as good corporate citizens. At the very minimum, corporations, in addition to complying with their legal obligations, should be responsible for negative externalities created by their activities; otherwise the community bears these costs rather than the corporation. Corporations should act responsibly to avoid negative impacts of its activities on society, its employees, the natural environment as well as respecting human rights, and taking measures to combat corruption and bribery. This is justified according to the key theories of corporate governance. It is now generally accepted that, according to stakeholder theory, corporations should take into account the interests of stakeholders who may be seriously harmed by the corporation’s activities. Although the primary concern of corporations is to maximise profits for the shareholder, modern elaborations of the shareholder primacy theory, namely enlightened shareholder value and enhanced shareholder welfare, now recognise that recognising stakeholder interests is important for a corporation’s long-term sustainable development. Consequently, directors, in for example, the UK and the US are required to promote the long-term success of the company taking into account the concerns and interests of relevant stakeholders and the social and environmental impact of the company’s activities. Putting aside negative externalities, CSR does not require corporations to contribute to social welfare in ways that do not advance the long-term sustainability or reputation of the corporation. The thesis argues that, for Iraq, a broader conception of CSR should be used to require International Oil Companies to positively contribute to community welfare by assisting with local infrastructure, training and local content. This is because Iraq and its citizens have not fairly shared in Iraq’s oil wealth. The thesis argues that Iraq can learn from other developing countries which, rather than relying on voluntary CSR, have legislatively required large corporations (and International Oil Companies) to contribute to development and social welfare. This approach recommends imposing legal obligations on International Oil Companies through oil contracts and where possible by legislation. This approach recognises the limitations of CSR based on voluntary conduct and its principal concerns with negative externalities. The thesis proposes a framework for implementing CSR in the oil industry which responds to the Iraqi context and makes recommendations for future policies and the imposition of legal obligations on International Oil Companies not only to avoid negative externalities but requiring them to positively contribute to social welfare.

Energy conservation, efficiency and renewable energy have become a vital part of everyday life and business. The increase in energy cost and the consequences of greenhouse gas emissions necessitates energy management and in particular energy risk management within organisations. Organisations need to manage the possible negative effect that the increased costs will have within the organisation. The present research investigated the introduction of a structured approach to energy risk management within the financial services sector of South Africa. The research followed a quantitative, non-experimental research design by using a structured questionnaire. The questionnaire was sent to managers within the financial services sector. The research investigated the criteria for the implementation of a structured approach to energy risk management such as organisational requirements (culture, corporate social responsibility, management, and finance), governance, energy strategies (energy conservation, efficiency and renewable energy), risk identification, risk management and lastly communication and review. The research found that the structured approach to energy risk management should include the context within the organisation namely organisational requirements, governance and energy strategies. Thereafter the risks within the energy strategies need to be identified, analysed and evaluated, and control measures need to be implemented. It is important to monitor the various energy strategies continuously in order to identify corrections and implement preventative actions. The strategies need to be reviewed and communicated in terms of the various strategies to all stakeholders within the organisation in order to set continual improvement plans. Risk management should form part of the energy management strategies of organisations. The research showed that energy risk management plays an important role in the overall business strategy and that the vast majority of financial services organisations have already implemented some form of energy management. There are however aspects that are still lacking within management strategies that need attention.
D. Phil. (Management Studies)
Business Management

This study makes the assumption that community participation in the governance of mineral resources is a requirement of sustainable development and that through a fundamental rights-based approach, it can be made effective. The concern is that an affected community should not only be involved in the decision-making process, but its view must also influence the outcome in respect of whether or not a mineral project should take place and how it should address development issues at local level. It is assumed that this legal approach will improve mineral governance by bringing more transparency and accountability. In many African resource-rich countries, community participation has until now been practiced with more of a soft approach, with the consequence that it has been unable to eradicate the opacity existing in the management of revenues generated by mineral exploitation and also deal efficiently with the recurrence of fundamental rights violations in the mineral sector. Obviously, the success of the fundamental rights based-approach is not absolutely guaranteed because there are preconditions that must be fulfilled. The synergy between community participation and some relevant concepts like democracy, decentarlisation, accountability, (good) governance and sustainable development must be well balanced for the participation process to bring positive outcomes. Also, because the fundamental rights based-approach is conceived here within the framework of the African Charter of Human and People’s Rights, its normative and institutional components, despite the potential to make participation effective and successful, require that some critical challenges be addressed in practice. The study ends with the conclusion that the fundamental rights based-approach is appropriate to make community participation effective in the mineral-led development process taking place at local level, provided that its implementation is kept reasonable.
Constitutional, International & Indigenous Law
D.Law

Good corporate governance should be the cornerstone of all company management. Directors ought to know in whose interests the company should be managed. This thesis attempts to answer the following question: whose interests must be granted primacy in the management of a company? In chapter 1 it is stated that shareholders' interests are traditionally granted primacy in the management of a company. There has, however, been a shift in public opinion towards recognition of a wider variety of interests that should be considered than only those of the shareholders. These interests include, inter alia, environmental interests and those of the investors, employees and consumers. This thesis thus focuses on the primary stakeholders, namely individual shareholders, creditors, employees, consumers and suppliers. In chapter 2 a theoretical foundation is provided on the nature of a company. The different theories on the nature of a company, emphasising either shareholder primacy or stakeholder protection, are discussed. A combined new theory is proposed. It is suggested that the confusion relating to the meaning of "the company" needs to be eliminated. Chapters 3, 4 and 5 provide an international comparison of the company law in Botswana, Australia, New Zealand and the United Kingdom. The focus falls, firstly, on directors' duties, secondly, on the question in whose interests directors should manage a company and, thirdly, on the codification of their duties. In chapter 6 the South African position is evaluated. First, the possible stakeholders are identified and the protection currently afforded them is explained. The reports of the King Committee on Corporate Governance, the Policy Document on company law reform as well as the Companies Bill of 2007 are discussed. Draft clauses are recommended to be incorporated in new company legislation to provide directors with clarity on what is expected of them. It is the aim of this thesis to provide clarity on whose interests should receive primacy when directors manage a company. The outcome of this research should provide a clear indication to South African directors of what is expected of them and who the beneficiaries of their fiduciary duties are.
Law
LL.D.