Teses / dissertações sobre o tema "Corporate governance – Law and legislation – Wales"

The essence of running an enterprise which is defined as a system by which the companies are lead and compared is generally set in priority terms. For some, they favour in the first instance to secure the economic efficiency then to scope with the social problems at a later stage---'Shareholder model'. Others are inclined to consider that the priority lies into an environmental, sharing and caring society etc.---'Stakeholder model'.
Where the evolution of the corporate governance is going to lead to? And how does it affect the directors' responsibility?
After a thorough study of its European evolution in particular in France and England, we figure out that raising the black flag of the stakeholder theory will end up into an ideology completely false dislodging the concept of the natural reality around us. On the other side, claiming the predominance of the sole shareholder system will become a dangerous apprehension opposing the objective of this theory: In our perspective we see that the ultimate global wealth of the enterprise in the long run is closely linked to the consideration and the deep satisfaction of the needs and the interests of the different parties joining the enterprise.

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.

The purpose of this thesis is to study the role of corporate social responsibility (hereinafter ‘CSR’) in corporate governance in the context of employment. This is done through a comparative study of the United Kingdom (hereinafter ‘UK’) and China in which it is determined whether Chinese companies can adopt UK companies’ CSR practices in employment. The thesis begins with an overview of the theory of corporate governance and the necessity of CSR in corporate governance. The different models and principles of corporate governance and CSR, and how the main corporate organs operate in corporate governance and apply CSR in decision-making to meet stakeholders’ needs are introduced. The study then demonstrates the rationale behind the emergence of CSR, the legal impact of CSR on stakeholders and the global application of CSR initiatives, especially the techniques and mechanisms adopted in the UK and China. The research specifically presents CSR practices in employment in the UK and China against a theoretical background. This comparative study is mainly dependent on companies’ information disclosure, since all data were collected from their official CSR reports. The quality of the information disclosure is assured through effective monitoring as stated in the various reports. The implication of the comparative research on the information disclosure collected demonstrates the difference in CSR implementation in employment between UK and Chinese companies. The thesis analyses the possibility of adopting UK CSR practice in employment in Chinese companies in terms of the economic, social and political barriers to, and current situation of, CSR in China. As China has opened up the global market, overseas companies have invested in the Chinese market. This comparative study of CSR implementation in the context of employment in the UK and China, and the analysis of the current status of Chinese CSR practices also provide foreign enterprises experience to relate their CSR policies in corporate governance to Chinese context.

Corporate governance of Thailand has been developed and reformed, particularly after 1997 Asian financial crisis. However, problems regarding director’s responsibilities are still entrenched in company law and corporate practices. The challenges of Thai corporate governance on director’s responsibilities are found in the areas of director’s accountability and minority shareholders protection. Legal provisions on director’s fiduciary duties and director’s duty of care and skill are unable to regulate director’s misbehaviors. Directors are not fully aware of their proper responsibilities to the company. They tend to act for their own interest or interest of their group, the controlling shareholders. In addition, legal enforcement on director’s responsibilities is not effective in practice. Shareholders litigation or other actions against directors who are in breach of their duties is rare, though there is derivative action provided as remedy for minority shareholders. In finding solutions for those problems, all relevant aspects should be brought into consideration. Corporate governance on director’s responsibilities is related to law, business and ethics. Director’s responsibilities are matters concerning human conducts, actions, behaviors as well as practices. They are related to ethics of each company director and ethics of the board members as a whole. In addition to legal and business aspects, ethical aspect should also be considered in the reform of corporate governance on director’s responsibilities of Thailand. This thesis is the study of Thai corporate governance on director’s responsibilities and ethics in order to find appropriate ethical theory where good corporate governance principles will be built on. Among relevant ethical theories i.e. utilitarianism, Kantian ethics, virtue ethics and contractualism, virtue ethics of Aristotle is the most appropriate ethical theory to be applied to corporate governance on director’s responsibilities of Thailand. It is suitable for the nature of corporate governance on director’s responsibilities, the conditions underlying its problems, and the understanding and practices of people in Thai society. Virtues and means of virtue ethics should be applied as complements to fiduciary principles for enhancing director’s accountability. The doctrine of mean of virtue ethics should be applied as complement to derivative action for enforceability and effectiveness of minority shareholders protection. In this regard, some related regulations and codes of best practices will be prescribed by adopting appropriate virtues or means, and the relevant regulators i.e. the Securities and Exchange Commission (the SEC) and the Stock Exchange of Thailand (the SET) will be given authority to interpret and apply such regulations and codes of best practices on a case by case basis.
published_or_final_version
Law
Master
Doctor of Legal Studies

Thesis (LLM. (Labour Law)) --University of Limpopo, 2014
This mini-dissertation discusses the application of the principles of corporate governance in the Musina Local Municipality. It further discusses the legislative framework and the institutions of government which are responsible for the effective implementation of corporate governance in the local government sphere. It further discusses the challenges faced by Musina Local Municipality which are ranging from fraud and corruption and poor financial management and this result in poor service delivery.

Thesis (MBA)--Stellenbosch University, 2014.
ENGLISH ABSTRACT: Newspaper headlines have continued to shock investors and society by exposing corporate scandals and by highlighting the overall decline in moral fibre of the modern employer and/or employee, locally and internationally. The King III Report on Governance aims to improve organisations’ sustainability by providing principles to enable sound decision-making for any organisation, irrespective of its size and/or structure. The objective of this research report was to investigate the challenges experienced with the application of these principles, with a specific focus on the guidance provided to enable the independence of directors. Firstly, this investigation aimed to establish whether there was a belief that the application of these principles would necessarily lead to sustainability; and secondly, whether the application of these principles were practically possible for all organisations, irrespective of their size and/or structure. The investigation was conducted by combining the results from a literature review on corporate governance with a specific focus on director independence and a survey conducted with twelve individuals involved in different capacities at board level. Based on the information obtained from the literature review and the results obtained from the questionnaire, overwhelming support exists that indicates that the application of the King III principles would contribute to improve the sustainability of an organisation. However, it was discovered that it would not necessarily be feasible for all companies, of any size and/or structure, to effectively apply these principles. Various recommendations were made to address the challenges identified for the effective application of the King III principles relating to the independence of directors.

Consumer protection policy measures can enable consumer behaviour shifts in favour of more sustainable choices. Whilst government is responsible for developing consumer protection policy in a particular country, business is central in the implementation of such policy. In South Africa, there is disassociation in consumer protection policy and environmental policy where consumer protection policy is the responsibility of the Department of Trade and Industry, whilst sustainability is located under the Department of Environmental Affairs. As a result, South African consumer protection policy does not holistically incorporate sustainability. A six-step qualitative research process was adopted to develop a framework to implement sustainability into consumer protection policies. First, a theoretical framework for incorporating sustainability into consumer protection policy was developed to structure the qualitative research. Four dimensions for incorporating sustainability into consumer protection were then identified. Qualitative data was collected using an open-ended questionnaire and also content analysis of existing data. Two sets of experts further reviewed and critiqued the proposed framework. The results of the qualitative enquiry, in particular, showed that for all the countries examined, some at least had sustainability consideration elements in their policies, but this was evident to a lesser extent in African countries, particularly those with less-developed economies. On the other hand, policy mechanisms that promoted sustainability were more evident in the policies and laws of developed countries. In the case of most African countries, basic needs were foregrounded as the primary concerns of consumers, ahead of sustainability concerns. Further, poverty limited consumer choices, particularly if more sustainably produced and eco-efficient goods came at a higher price. The research also underscored the importance and centrality of consumer education and stakeholder engagement for achieving sustainability policy intentions. It further confirmed that the basic needs of poor consumers in South Africa, and the impact of poverty on sustainability policy intentions must underpin the proposed framework. Factors that created an enabling environment for the implementation of the framework were identified as policy harmonisation within government policy domains, joined-up government, good corporate governance and shared value that considered the needs of future generations and consumer education. These factors would create an enabling environment for policy implementation. Consumer policy could play a key role in the choices that consumers make and, if well-designed and implemented, could direct consumer spending in support of the goal of sustainability and sustainable consumption. The proposed framework provides a foundation on which to futher refine and develop consumer protection policy that incorporates the well-being of consumers and social justice. Using consumer spending to drive sustainability requires a deliberate intention on the part of policy makers to move away from the more conventional framing of consumer policy, which has tended to focus on the economic interests of consumers, such as price, quality, choice and redress. However, modern business is shifting towards a more holistic conceptualisation of sustainability, as a value that needs to be deliberately and consciously built into the design and essence of a business. Doing so is not only good corporate citizenship, but offers a competitive advantage, which could drive product demand and attract consumers.

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.

The purpose of this dissertation is to investigate the effect of U.S. firms’ geographic location, whether urban or rural, on their corporate disclosure and governance practices. An “urban” firm is one that is headquartered in a large metropolitan area; whereas, a “rural” firm is one that is headquartered some distance from any metropolitan area. Specifically, the study examines whether there are different stock market reactions to urban and rural firms around key event dates relative to the enactment of the Sarbanes-Oxley Act (SOX) on July 30, 2002. Also, the readability and linguistic style in the Management Discussion and Analysis (MD&A) section of public company’s annual reports (Form 10-K) to the Securities and Exchange Commission (SEC) are investigated to determine whether urban and rural firms communicate information differently to investors.

This dissertation is composed of three essays related to Financial Architecture.

The first essay, analysed in the first chapter of the thesis, contributes to the literature on Efficient Market Hypothesis and in particular in understanding several issues associated with how prices are determined for individual stocks. The chapter, in particular, provides further evidence of price and volume effects associated with index compositional changes by analysing the inclusions (exclusions) from the French CAC40 and SBF120 indices, as well as the FTSE100. I find evidence supporting the price pressure hypothesis associated with index fund rebalancing, but weak or no evidence for the imperfect substitution, liquidity and information hypotheses. The results improve on recent evidence from the S&P500 index. The evidence for the FTSE100 additions shows, in particular, that markets learn about an imminent inclusion and incorporate this information into prices, even before the announcement date.

The other two essays of this thesis relate to Corporate Governance issues. Chapters 2 and 3, in particular, analyze some aspects of two corporate governance mechanisms: ownership concentration and managerial labour market.

Chapter 2 provides an overview of the evolution of control in listed Slovenian corporations and evaluates the impact of the current changes in ownership on firm performance. Ownership and control has been concentrating in most transition countries. This consolidation of control introduces changes in the power distribution within privatised firms and, most importantly, redirects the corporate governance problem to a conflict between large and small shareholders. The chapter evaluate the ownership changes in Slovenian privatised firms through an analysis of stock price reactions to the entrance of a new blockholder (the shared benefits of control) and through an estimation of the premiums paid for large blocks (the private benefits of control). It provides evidence and discuss the reasons for the failures of the privatization investment funds in implementing control over firm managers and in promoting the restructuring of firms in the first post-privatization years.

Chapter 3 concentrates on one specific aspect of the managerial labour market: monetary remuneration schemes. The purpose of this chapter is to examine the interconnection between pay and corporate governance approaches with respect to the different rules found across European legal systems. The research data on reported pay practices for 2001 among FTSE Eurotop300 companies reveal a reliance on performance-based pay generally and a somewhat variable adoption of share options programs and other equity-based incentive contracts, which generate difficulties in dispersed ownership systems. Furthermore, on the basis of the regulation on executive remuneration disclosure discussed in this chapter and on the basis of the disclosure practices resulting from the data collected for the FTSE Eurotop300 constituents, I construct some disclosure indicators and analyse empirically how country and firm characteristics affect remuneration disclosure.

Doctorat en sciences économiques, Orientation économie
info:eu-repo/semantics/nonPublished

"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 Retail Distribution Review (RDR) was introduced by the Financial Services Board (FSB) to change the distribution and remuneration practices in the financial services industry in an attempt to ensure that clients receive fair treatment when purchasing financial products. The FSB aims to ensure that clients are sold products which are suitable for their financial needs and objectives; that clients receive appropriate advice which is not biased and not subject to product supplier influence in particular and that there is full transparency in the sales process. The current distribution of financial products and some financial advisor remuneration models are noted as contributing factors to the poor outcomes of current product selling practices. The impact of RDR on the sustainability of the South African financial services industry and advisor force is expected to be substantial, especially in terms of advisor remuneration, the reduction in qualified experienced advisors and a growing advice gap. This study reviewed the research conducted in the UK and Australia where RDR has been implemented and the impact thereof on the financial planning industry in these countries. This study aimed to determine if the South African advisors have started changing their business models to ensure that they are ready for the implementation of RDR and to reduce the impact of RDR on their practices. An environmental scan was conducted in order to identify and understand other factors specific to the South African context which will impact the financial services industry in the future. Research was conducted via online questionnaires as well as personal interviews to determine the perception of clients pertaining to the trustworthiness and professionalism of financial advisors and what they perceive as value in terms of financial planning, their knowledge of RDR and the changing environment. Industry experts were given the opportunity to share their views regarding the impact of RDR on the industry as well as their proposals in terms of the implementation and roll-out of RDR.

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The several crises and many scandals occurred in the recent history of the Financial Market, brings about discussions concerning audit work aiming auditing report issuance. Therefore, this research aims to determine the level of regulatory compliance relating to the audit report established by Resolutions n??. CFC 1.231/09 - ISA 700, CFC n?? 1.232/09 - ISA 705, CFC n??. 1.233/09 - ISA 706 on the auditing reports issued by companies of information technology sector, available on the website of BM&FBovespa. To reach the proposed goal we have performed a study based on the technique of document analysis and content analysis, in which we have attempted to identify the content of the reports of selected audits adequacy, determined by the existing rules for the issuance of the auditing report. The research is descriptive and qualitative approach have been used, checking the contents of 25 audit reports of companies in the information technology industry in which we have compared the mandatory content established by the standard with the contents of the reports. It has been found that: the reports issued by independent auditing firms on the financial statements of the Information Technology companies for the period 2010-2012. It can be concluded that the reports analyzed, show adequacy to the regulations currently in force, in 10 of the 16 mandatory items established by those rules. However, it has been verified inadequacy as to the way exception is presented in the reports, i.e., through an emphasis paragraph, when it should be in an specific paragraph for exceptions. All the information collected is described and analyzed in the development of this work
A hist??ria recente do mercado financeiro por for??a das crises e dos muitos esc??ndalos corporativos traz ?? tona discuss??es a respeito dos trabalhos de auditoria, que t??m por finalidade a emiss??o do relat??rio de auditoria. Diante de tal exposto, esta pesquisa tem como objetivo a verifica????o do n??vel de adequa????o ??s normas relativas ao relat??rio de auditoria definidas pelas resolu????es CFC n??. 1.231/09 - NBC TA 700, CFC n??. 1.232/09 - NBC TA 705, CFC n??. 1.233/09 - NBC TA 706, dos relat??rios de auditoria emitidos pelas empresas do setor de tecnologia da informa????o, as quais disponibilizam suas informa????es no s??tio da BM&FBovespa. Para atingir o objetivo proposto, realizou-se um estudo baseado na t??cnica de an??lise documental e an??lise de conte??do, com as quais se buscou identificar, no conte??do dos relat??rios das auditorias selecionados a adequa????o determinada pelas normas em vigor para emiss??o de relat??rios. A pesquisa tem car??ter descritivo e utilizou a abordagem qualitativa, para averiguar o conte??do de 25 relat??rios de auditoria das empresas do setor de tecnologia da informa????o, tendo-se comparado o conte??do obrigat??rio institu??do pela norma com o conte??do dos relat??rios. Constatou-se que: os relat??rios emitidos pelas firmas de auditoria independente acerca das demonstra????es cont??beis das empresas de Tecnologia da Informa????o relativos ao per??odo de 2010 a 2012 apresentam adequa????o ?? norma vigente em 10 itens dos 16 itens obrigat??rios institu??dos pela referidas normas. Verificou-se inadequa????o quanto ?? forma de ressalva apresentada nos relat??rios, visto que a ressalva se d?? pelo par??grafo de ??nfase, quando o correto seria em par??grafo espec??fico de ressalva. Todos os dados coletados s??o descritos e analisados no desenvolvimento deste trabalho

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.

Orientador: Carlos Gustavo Poggio Teixeira
Banca: Lucas da Silva Tasquetto
Banca: Flávia de Campos Mello
O Programa de Pós-Graduação em Relações Internacionais é instituído em parceria com a Unesp/Unicamp/PUC-SP, em projeto subsidiado pela CAPES, intitulado "Programa San Tiago Dantas"
Resumo: O termo governança global tomou nova forma na Governança da Internet, onde a maior parte das instituições utiliza-se do modelo multistakeholder, formando espaços de diálogo e processos decisórios com diversos atores, sejam estes estatais, privados, civis ou acadêmicos. Propõe-se então a análise do estudo de caso da ICANN, instituição responsável pela administração dos contratos relacionados à regulação do uso dos Nomes e Números, o DNS. Por meio de leitura acadêmica, jornalística, pesquisa de campo, participação em conferências e entrevistas com pessoas relevantes à área. Procedeu-se a elaboração, utilizando-se do material dessas diversas fontes, de um panorama da contextualização da revolução tecnológica que levou à Internet atual, e também da governança global. Posteriormente, passou-se para o ecossistema de Governança da Internet como conceito e prática. Assim, o estudo de caso está inserido em um contexto maior, de modo que se possa compreendê-lo em seus intrincados pormenores. Ao contrário da maioria das instituições transnacionais, que acabam por ter caráter recomendativo, na ICANN as decisões são realmente efetuadas. Apesar de o modelo multistakeholder propor igualdade entre os atores, alguns possuem maior influência. Antes da Transição IANA, os Estados Unidos tinham um peso muito maior, agora largamente ocupado pelo setor privado. A Governança da Internet é única dentro da governança global. Esta deve sua distinção a algumas possíveis razões, como o desenho técnico da... (Resumo completo, clicar acesso eletrônico abaixo)
Abstract:The term global governance has taken a new form in Internet Governance, where most institutions use the multistakeholder model, forming spaces for dialogue and decisionmaking processes with various actors, including states, companies, civil society or academia. An analysis of the ICANN case study, the institution responsible for administering contracts related to the regulation of the use of Names and Numbers, the DNS, is then proposed. The research was done through academic reading, journalism, field research, participation in conferences and interviews with people relevant to the area. With the material from these various sources, it was elaborated a panorama of the technological revolution contextualization that led to the Internet as it is today, as well as to global governance. Subsequently, we moved on to the Internet Governance ecosystem as a concept and practice. Thus, the case study is embedded in a larger context, so that one can understand it in its intricate details. Unlike most transnational institutions, which are deliberation bodies, ICANN decisions are actually carried out. Although the multistakeholder model proposes equality among the actors, some have greater influence. Prior to the IANA Transition, the United States had a much greater weight, now largely occupied by the private sector. Internet Governance is unique within global governance. It owes its distinction to some possible reasons, such as the technical drawing of the Internet. Therefore, there is a great possibility that this is not a reproducible model in other areas. The multistakeholder model presents a divergent way of assessing the relations between actors in the International System and the limit of state power. Even if there is no continuity in the current model, the field of study is extensive and still far from reaching maturity.
Mestre

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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).

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 dissertation critically analyses the role of disclosure in strengthening corporate governance and accountability to determine whether a prescriptive system of disclosure is of greater efficacy than a voluntary regime. The research undertaken has been done on a qualitative and theory building basis. The purpose of the study is to examine how current and future legal reform can curb corporate governance shortcomings and contribute to a new more dependable mode of corporate governance. This requires a comparative analysis of the South African and English models which are voluntary ('comply or explain') regimes compared to the prescriptive American model of corporate governance ('comply or else'). The foundational basis, definition and jurisdictional evolution of corporate governance is examined and analysed to ascertain the role of disclosure in relation to good governance. To facilitate this investigation a critical review of the legislative framework and reforms enacted locally (and offshore where applicable) is also undertaken. Disclosure as a concept is probed in terms of both a mandatory disclosure and voluntary disclosure regime to determine the more prudent mode of dissemination and how it impacts the efficacy of corporate governance and accountability. To ensure a holistic VIew of the role of disclosure is comprehensively critiqued its influence on corporate social responsibility is embarked upon. It is contextualized against the shareholder (contractarian) theory of governance versus that of the stakeholder (communitarian) theory of governance. This will involve a study of the competing requirements of disclosure in terms of these two theories and its impact on securing accountability. The tenuous relationship between shareholders and directors is considered to determine whether corporate governance regimes safeguard shareholder rights and how these measures contribute to strengthening governance. The codified role of directors in enhancing disclosure to shareholders is also undertaken. To exatrune the interplay between these concepts corporate governance failures are dissected to determine the shortcomings of disclosure practice. The recommendation of this dissertation is that a mandatory disclosure regime is of greater efficacy in strengthening corporate governance and accountability but to remedy recurring corporate governance shortcomings a disclosure regime that is holistic and principles based is required. It should also be supported by a dedicated and empowered regulatory system with sufficient penal measures to curb fraudulent behaviour but sufficient flexibility so as not to curtail industrial fortitude.
Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2010.

Thesis (LLM.) -- University of Limpopo, 2017.
The introduction of the King reports on corporate governance in South Africa introduced good corporate governance principles to be applied by companies and entities; public, private and state-owned companies. The lxxvpurpose of King I, II, III and draft King IV on corporate governance is to provide and promote a good transitional process in companies in order for them to showcase the principles of accountability, sustainability and transparency; which are the fundamental aspects of which every company has to adhere to in order for it to be a good corporate citizen of the state. Ethics as mostly dealt with in draft King IV being the founding principles of good corporate governance. The trends across the domains show a lack of good corporate governance between the shareholder, board and management with displacement of the controlling and managing abilities between the parties. Despite continued upheavals, repeated disappointment and financial shortcomings the government continues to bail state-owned airlines from a state of insolvency. This study aims to analyze the application of the corporate governance principles in the aviation sector looking closely into state-owned airlines.

自20世纪90年代起，金融及法律界学者逐渐提出到境外发达资本市场上市可以发挥其 “捆绑“作用：企业可以通过跨越本国薄弱的法律机制，受制于发达国家的法律以及监管，实现公司治理的提高。“捆绑理论起源于美国, 但随后也被运用于全球市场的其他角落。 问题关键在于本国市场与境外市场之间是否存在一个"质量差距", 因为只有在“质量差距“存在的情况下，“捆绑“的作用才有可能产生。
源于“香港“英文拼写中的第一个字母H，到香港上市的中国企业被统称为H-股公司。自“青岛啤酒“于1993成功于香港上市，至今香港联交所已有169 间H-股公司。其中，2002至2006 是到港上市的高峰期. 此期间，中国资本市场混乱，难以发挥为企业融资的作用。鉴于此，中国政府鼓励国内企业到香港上市，寄予通过香港更好的治理机制，实现对本土企业治理实践的提高。
当前，人们普遍认为香港上市可以顺利提高中国企业的治理实践。如若事实如此，我们有理由相信中国本土市场与香港市场之间存在明显的“质量差距“。也就是说香港市场的治理体系优于国内市场。此文以中小股东保护为出发点，于以下几个方面探讨两地之间是否存在“质量差距“：信息披露，独立董事，金融中介机构的“看门人“作用，证券法的公力救济，以及公司法，证券法的私力救济。
In the 1990s, finance and legal scholars gradually proffered the view that cross-listing in a developed market functions as a "bonding" mechanism: a firm may improve governance practices in spite of the home country's weak legal institutions by subjecting itself to the legal and regulatory regime of the developed market. Initially developed in the context of overseas companies listed in the US, this bonding effect has been applied to other places of the global market as well. Critical to this scenario is the existence of a "quality gap" between the home and the foreign markets, which must exist for generating the bonding effect.
Chinese companies listed in Hong Kong are known as H-share companies for the first letter of the listing locality. Since the birth of the first H-share company, Tsingtao Beer, in 1993, a total of 168 H-share companies have floated on the Stock Exchange of Hong Kong. A majority of these companies were listed between 2002 and 2006. Around this period, the two domestic exchanges were highly volatile and failed to provide an efficient fund-raising device for Chinese companies. Against this backdrop, the Chinese government adopted the strategy of encouraging domestic companies list in Hong Kong, which is perceived to be a better governance regime, thereby bonding the governance practices of Chinese companies to a superior standard.
It is current conventional wisdom that the governance practices of Chinese companies can be enhanced indeed through pursuing a listing on the SEHK. If conventional wisdom so holds, we should believe there is a quality gap between these two markets. In other words, the governance regime of the Hong Kong market must be superior to that of China. Focusing on the level of protection for minority shareholders, this study questions the conventional wisdom in five areas: information disclosure, board independence, the gatekeeping role played by financial intermediaries, public enforcement of securities law, and private enforcement of corporate and securities law.
Detailed summary in vernacular field only.
Detailed summary in vernacular field only.
Detailed summary in vernacular field only.
Meng, Fanpeng.
Thesis (Ph.D.)--Chinese University of Hong Kong, 2012.
Includes bibliographical references (leaves 300-331).
Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web.
Abstract also in Chinese.
INTRODUCTION --- p.1
INFORMATION DISCLOSURE --- p.3
INDEPENDENT DIRECTOR --- p.4
GATEKEEPER --- p.4
PUBLIC ENFORCEMENT --- p.5
PRIVATE ENFORCEMENT --- p.5
OVERALL BONDING EFFECT --- p.6
Chapter CHAPTER I --- OVERVIEW --- p.7
INTRODUCTION --- p.7
Chapter 1.1 --- THE SOE REFORM --- p.7
Chapter 1.1.1 --- Pre-1949 Era --- p.8
Chapter 1.1.2 --- Leninist Model of State-Syndicate --- p.10
Chapter 1.1.3 --- Power Delegating and Profit Sharing (PDPS) --- p.11
Chapter 1.1.4 --- Corporatization --- p.12
Chapter 1.2 --- THE ESTABLISHMENT OF THE CHINESE STOCK MARKET --- p.14
Chapter 1.3 --- THE VOLATILITY OF THE CHINESE STOCK MARKET --- p.16
Chapter 1.4 --- HONG KONG: A CAPITAL MARKET WITH CHINESE CHARACTERISTICS --- p.21
Chapter 1.5 --- THE ROAD TO THE HONG KONG BOURSE --- p.26
Chapter 1.6 --- AN ECONOMIC ANALYSIS OF CROSS-LISTING --- p.34
Chapter 1.7 --- CONCEPTUAL FRAMEWORK --- p.39
Chapter CHAPTER II --- LITERATURE REVIEW --- p.45
INTRODUCTION --- p.45
Chapter 2.1 --- CONCEPT OF CORPORATE GOVERNANCE --- p.47
Chapter 2.2 --- AGENCY COST --- p.51
Chapter 2.3 --- CONVERGENCE --- p.55
Chapter 2.4 --- THE BONDING HYPOTHESIS --- p.59
Chapter 2.5 --- CHALLENGING THE BONDING HYPOTHESIS --- p.65
Chapter 2.6 --- CROSS-LISTING IN THE H-SHARE CONTEXT --- p.68
Chapter CHAPTER III --- INFORMATION DISCLOSURE --- p.72
INTRODUCTION --- p.72
Chapter 3.1 --- GENERAL DIFFERENCES OF THE TWO DISCLOSURE REGIMES --- p.74
Chapter 3.1.1 --- Rulemaking --- p.74
Chapter 3.1.1(A) --- China --- p.75
Chapter 3.1.1(B) --- Hong Kong --- p.75
Chapter 3.1.2 --- Disclosure Medium --- p.76
Chapter 3.1.2(A) --- China --- p.76
Chapter 3.1.2(B) --- Hong Kong --- p.77
Chapter 3.1.3 --- Disclosure Language --- p.78
Chapter 3.1.3(A) --- China --- p.78
Chapter 3.1.3(B) --- Hong Kong --- p.79
Chapter 3.2 --- PROSPECTUS --- p.79
Chapter 3.2.1 --- Financial Report --- p.80
Chapter 3.2.1(A) --- China --- p.80
Chapter 3.2.1(B) --- Hong Kong --- p.81
Chapter 3.2.2 --- Business Activities, Products, and/or Services --- p.81
Chapter 3.2.2(A) --- China --- p.82
Chapter 3.2.2(B) --- Hong Kong --- p.83
Chapter 3.2.3 --- Shareholding Structure --- p.83
Chapter 3.2.3(A) --- China --- p.84
Chapter 3.2.3(B) --- Hong Kong --- p.85
Chapter 3.2.4 --- Development Plan --- p.85
Chapter 3.2.4(A) --- China --- p.85
Chapter 3.2.4(B) --- Hong Kong --- p.86
Chapter 3.3 --- PERIODIC REPORTING --- p.86
Chapter 3.3.1 --- Accounting Standards --- p.87
Chapter 3.3.1(A) --- Accounting Harmonization --- p.87
Chapter 3.3.1(B) --- China --- p.88
Chapter 3.3.1(C) --- Hong Kong --- p.89
Chapter 3.3.1(D) --- Harmonization Between China and Hong Kong --- p.90
Chapter 3.3.2 --- Mandatory Quarterly Reporting (MQR) --- p.91
Chapter 3.3.2(A) --- China --- p.91
Chapter 3.3.2(B) --- Hong Kong --- p.92
Chapter 3.4 --- AD HOC DISCLOSURE --- p.94
Chapter 3.4.1 --- PSI --- p.94
Chapter 3.4.1(A) --- China --- p.95
Chapter 3.4.1(B) --- Hong Kong --- p.96
Chapter 3.4.2 --- Disclosure of Connected Transactions --- p.97
Chapter 3.4.2(A) --- China --- p.98
Chapter 3.4.2(B) --- Hong Kong --- p.102
Chapter 3.4.3 --- Disclosure of Notifiable Transactions --- p.106
Chapter 3.4.3(A) --- China --- p.106
Chapter 3.4.3(B) --- Hong Kong --- p.108
CONCLUSION --- p.111
Chapter CHAPTER IV --- INDEPENDENT DIRECTOR --- p.113
INTRODUCTION --- p.113
Chapter 4.1 --- AGENCY COST, BOARD INDEPENDENCE, AND CORPORATE PERFORMANCE --- p.116
Chapter 4.2 --- INDEPENDENT DIRECTORS IN CHINA --- p.119
Chapter 4.2.1 --- Regulatory Rules --- p.119
Chapter 4.2.1(A) --- Guidelines for the Articles of Association of Listed Companies --- p.120
Chapter 4.2.1(B) --- Guiding Opinions on the Establishment of Independent Director System for Listed Companies --- p.121
Chapter 4.2.1(C) --- Principles of Corporate Governance for Listed Companies --- p.123
Chapter 4.2.2 --- Implementation of the Institution of Independent Director --- p.125
Chapter 4.2.3 --- Empirical Results --- p.126
Chapter 4.2.4 --- A Wrong Prescription for the Governance Disease --- p.127
Chapter 4.3 --- INDEPENDENT DIRECTORS IN HONG KONG --- p.132
Chapter 4.3.1 --- Regulatory Rules --- p.132
Chapter 4.3.1(A) --- Listing Rules --- p.133
Chapter 4.3.1(B) --- Code on Corporate Governance Practices --- p.134
Chapter 4.3.2 --- The Same Wrong Prescription --- p.136
Chapter 4.4 --- INDEPENDENT DIRECTORS OF H-SHARE COMPANIES --- p.140
Chapter 4.4.1 --- Regulatory Rules --- p.141
Chapter 4.4.2 --- Comparison of the Minimum Mandatory Requirements --- p.142
Chapter 4.4.3 --- Sample Study --- p.143
Chapter 4.4.3(A) --- Employment of INEDs --- p.143
Chapter 4.4.3(B) --- Specialized Committee --- p.144
Chapter 4.4.3(C) --- Occupational Background of INEDs --- p.145
CONCLUSION --- p.146
Chapter CHAPTER V --- GATEKEEPER --- p.148
INTRODUCTION --- p.148
Chapter 5.1 --- SPONSOR --- p.151
Chapter 5.1.1 --- China --- p.152
Chapter 5.1.2 --- Hong Kong --- p.157
Chapter 5.2 --- AUDITOR --- p.163
Chapter 5.2.1 --- China --- p.163
Chapter 5.2.2 --- Hong Kong --- p.168
Chapter 5.3 --- CORPORATE ATTORNEY --- p.173
Chapter 5.3.1 --- China --- p.173
Chapter 5.3.2 --- Hong Kong --- p.177
Chapter 5.4 --- CRA --- p.182
Chapter 5.4.1 --- China --- p.183
Chapter 5.4.2 --- Hong Kong --- p.189
CONCLUSION --- p.192
Chapter CHAPTER VI --- PUBLIC ENFORCEMENT --- p.196
INTRODUCTION --- p.196
Chapter 6.1 --- PUBLIC ENFORCEMENT IN CHINA --- p.199
Chapter 6.1.1 --- CSRC --- p.199
Chapter 6.1.1(A) --- The Primitive Stage --- p.200
Chapter 6.1.1(B) --- The Medieval Stage --- p.201
Chapter 6.1.1(C) --- The Modern Stage --- p.204
Chapter 6.1.1(D) --- CSRC Sanctions --- p.204
Chapter 6.1.2 --- Stock Exchange Self-Regulation --- p.207
Chapter 6.2 --- PUBLIC ENFORCEMENT IN HONG KONG --- p.213
Chapter 6.2.1 --- Hong Kong Government --- p.213
Chapter 6.2.2 --- SFC --- p.214
Chapter 6.2.3 --- MMT --- p.219
Chapter 6.2.4 --- SEHK --- p.221
Chapter 6.2.5 --- The CITIC Pacific Case --- p.223
Chapter 6.2.6 --- Maintenance of the Non-statutory SEHK Listing Rules --- p.226
Chapter 6.3 --- EFFECTS OF REPUTATIONAL SANCTIONS IN CHINA AND HONG KONG --- p.230
Chapter 6.3.1 --- Do Listed Companies Care? --- p.230
Chapter 6.3.2 --- Share Price Reaction --- p.232
Chapter 6.3.2(A) --- Sample --- p.232
Chapter 6.3.2(B) --- Measurement of Cumulative Abnormal Returns (CAR) --- p.233
Chapter 6.3.2(C) --- Results --- p.234
Chapter 6.3.3 --- Collateral Effects --- p.235
Chapter 6.4 --- LIMITED EFFECTS OF REPUTATIONAL SANCTIONS ON H-SHARE COMPANIES --- p.237
CONCLUSION --- p.240
Chapter CHAPTER VII --- PRIVATE ENFORCEMENT --- p.242
INTRODUCTION --- p.242
Chapter 7.1 --- SECURITIES LAW --- p.245
Chapter 7.1.1 --- China --- p.245
Chapter 7.1.2 --- Hong Kong --- p.248
Chapter 7.2 --- CORPORATE LAW --- p.253
Chapter 7.2.1 --- The Common Law Rule in Foss v Harbottle --- p.253
Chapter 7.2.2 --- The New Derivative Action in China --- p.255
Chapter 7.2.2(A) --- Background --- p.255
Chapter 7.2.2(B) --- Locus Standi --- p.257
Chapter 7.2.2(C) --- Standing Requirement --- p.260
Chapter 7.2.2(D) --- Personal Benefit --- p.261
Chapter 7.2.2(E) --- Funding the Action --- p.262
Chapter 7.2.3 --- The Statutory Derivative Action in Hong Kong --- p.265
Chapter 7.2.3(A) --- Member --- p.266
Chapter 7.2.3(B) --- Specified Corporation --- p.267
Chapter 7.2.3(C) --- Misfeasance --- p.268
Chapter 7.2.3(D) --- Preconditions for Leave --- p.269
Chapter 7.2.4 --- Private Enforcement Under the MPAAOs --- p.274
Chapter 7.2.4(A) --- Enforcement by Arbitration --- p.274
Chapter 7.2.4(B) --- Arbitration Procedures --- p.278
Chapter 7.2.4(C) --- Enforcement of Arbitral Awards --- p.281
CONCLUSION --- p.286
CONCLUSION --- p.288
INFORMATION DISCLOSURE --- p.289
INDEDPENDENT DIRECTOR --- p.291
GATEKEEPER --- p.292
PUBLIC ENFORCEMENT --- p.296
PRIVATE ENFORCEMENT --- p.297
OVERALL BONDING EFFECT --- p.299

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.

Defense date: 11/12/2009
Examining Board: Simon Deakin (University of Cambridge), Julio Gomes (Universidade Católica Portuguesa, Porto), Marie-Ange Moreau (EUI, Supervisor), Heike Schweitzer (EUI)
First made available online 13 September 2018
The object of this thesis concerns the institutional complementarities between the national systems of corporate governance and employee representation (including collective bargaining) in an evolutionary comparative and European perspective. This thesis defends that there appears to be currently a phenomenon of hybridisation of the patterns of corporate governance in Europe that is introducing market elements in relational/governmental systems and relational elements in market systems. The systems of employee representation appear to be also converging towards a phenomenon of controlled decentralisation that consists in the diversification of the powers of the actors at the level of the company and in the development of new types of agreements. The underlying intention appears to be the recognition of employees as stakeholders of the company. This thesis concludes that the new types of collective agreements may not be effective as a means of counterbalancing the pressure of shareholders and employees are left in a delicate position.

Thesis (LLM. (Development and management law)) -- University of Limpopo, 2012
This mini-dissertation highlights corporate governance initiatives in South Africa, focusing on the proposed governance reforms. An analysis of the major corporate governance reform is done including, statutory reforms, development of codes of conduct and practice and institutional reforms. The evolution of South Africa’s corporate structure and forces driving corporate governance is examined. It is noted that corporation in South Africa cannot shield themselves from the global movement shaping the standard principle governing corporations. Therefore the global principle corporate governance are examined concerning how they can serve as models for enhancing corporate governance standard in South Africa. The analysis is based on the need to bring South Africa’s corporate governance in line with international accepted standard but considering the best interest of South Africa and its citizen.

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.

Thesis (LLM.) -- University of Limpopo, 2017.
Good corporate governance is essentially about effective, responsible leadership. This is characterized by the ethical values of responsibility, accountability, fairness and transparency, which values underpin good corporate governance. After the promulgation of the Kings Code, amendment of the Companies Act and the promulgation of the Public Financial Management Act, it has been shown that most of the leadership and board of directors in state owned entities have not been following the guidelines and principles provided in these legislations and that’s why most of them are in disarray. It is, therefore, the objective of this research to help restore the integrity and confidence in state owned entities and the need to a draw the line between personal interest and that of the company. An appropriate approach will be to conduct training or a workshop, whereby appointed persons can be reminded of how to discharge their rights and duties before they are instated into a particular post.

Traditionally, the corporate governance scholarship has emphasized heavily the "dispersed shareholder regimes" in the United States and the United Kingdom, although "controlling shareholder regimes" constitute the vast majority of the world's economy. Since there have been few systematic studies concerning controlling shareholder regimes (in particular, controlling shareholder regimes in developing countries), they have remained in a black box. With this concern in mind, in this dissertation, I proposed various analytical frameworks for understanding the corporate governance of controlling shareholder regimes that, improperly, have been overlooked for a long time. In the first chapter of my dissertation, entitled Reenvisioning the Controlling Shareholder Regime: Why Controlling Shareholders and Minority Shareholders Embrace Each Other, I proposed theories to explain why controlling shareholders and minority shareholders "voluntarily" embrace each other in an emerging capital market while the legal system in that jurisdiction does not require controllers to protect investors. In the second chapter, entitled Controlling Shareholders - "Roving" v. "Stationary," I explored two types of controlling shareholders (i.e., "roving" and "stationary" controllers) and delved into why an economy with stationary controllers is better in terms of corporate governance and more likely to be prosperous than an economy with roving controllers. In the third chapter, entitled Transplanting a Poison Pill to a Controlling Shareholder Regime, I analyzed how a poison pill would affect the market for corporate control and the corporate governance of controlling shareholder regimes. In this dissertation, I have proposed many unconventional analyses and views on controlling shareholder regimes (in some cases, the concepts may be counterintuitive from the perspective of the conventional corporate governance scholarship). I hope that my research will guide scholars in a theoretical way to understand the various aspects of law and economics related to corporate governance that mostly have not been recognized or that have been misunderstood in the standard scholarly studies of corporate governance.

The reforms adopted by the Jordanian government between 1997 and 2003 to promote and globalise the securities market in Jordan have contributed directly in the significant improvements that the Amman Stock Exchange (ASE) witnessed in all market indicators in the last decade and accordingly in reinforcing the ASE role in boosting the Jordanian economy through mobilising funds for listed companies from the public. The Securities law 1997 no. (23) and the introduction of new technology for trading and dealing in securities (Remote Electronic Trading) are considered the cornerstone of these reforms. The Securities law 1997, which set the legal framework for the key elements of the securities market, separated the regulatory function from trading and technical side of the market by establishing three independent institutions: Jordan Securities Commission (JSC), ASE and Securities Depository Centre (SDC). In this new environment, the ASE witnessed a remarkable improvement in its performance. However, the sluggish performance of the ASE after the Global Financial Crisis in 2008 to date highlights the need to review all the securities regulators roles in the Jordanian Capital Market and corporate governance in particular the role of the ASE to reform the securities market to continue its important contribution in reinforcing the Jordanian economy. The thesis discusses the role of the ASE in corporate governance in Jordan. While the ASE plays a pivotal role in the raising of much needed finance in the development of the Jordanian economy, its efficiency appears to have been hindered by its regulatory structure and institutional constraints. These include: first, the ASE institutional structure as a non-official public institution strengthens the government and JSC control over the ASE and weakens the administrative and financial autonomy of the ASE; secondly, the functional overlaps between the regulatory bodies entrusted with the oversight of the securities market with no clear demarcation and the lack of co-ordination between officials of the various regulatory bodies; thirdly, the dominance of families and government and some other obstacles such as the lack of appreciation of what corporate governance rules require, prevent listed companies from complying with corporate governance rules particularly those in the Code of Corporate Governance for Listed Shareholding Companies on the ASE 2008. This thesis examines these structural and institutional deficiencies and the constraints they impose on the operation and efficiency of the Jordanian securities market and suggests ways of overcoming them by enhancing the five fundamental elements of market structure (technology, regulation, information, participants and instruments) so as to improve the market's efficiency and appeal to investors both within and outside the Middle Eastern region. This thesis argues that privatisation of the ASE leading to its listing as a public corporation is a potential solution for some of the problems relating to the ASE's institutional structure and its operation.

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.

There have been, and continue to be, serious financial scandals involving accounting irregularities in leading companies. While responses to these occurrences include the introduction of tougher regulations such as the Sarbanes-Oxley Act of 2002 (SOX), further serious instances have occurred, notably the 2008 subprime mortgage and financial institution meltdown. The existence and persistence of such cases of financial scandals have led many investors, regulators, companies and academics to try to reduce such incidence by improving the effectiveness of corporate governance and increasing awareness of the red flags which could cause accounting scandals. The relationship between individual corporate governance dimensions and corporate governance as a system orientated toward accounting irregularities has been tested. However, empirical measurements and tests are limited and largely based in one-tier board system environments. The outcomes are almost impossible to apply in two-tier board systems, where relationships between governance mechanisms and accounting irregularities are not fully understood. Using the agency theory and fraud theories, this research is undertaken in Indonesia to provide insights that extend the body of knowledge about the practices of the two-tier board system. This study investigates the extent to which the Indonesian corporate governance system acts as an effective tool in protecting financial statement users against accounting irregularities.

Thesis (M. Dev.) -- University of LImpopo, 2017.
The new democratic government of South Africa came into power in 1994 and it inherited a dysfunctional municipalities. In fact it inherited a country with high levels of poverty, growing levels of inequality and also social dysfunctionality. The local government sphere was established in South Africa with the main aim of addressing inequality, segregation, inequity, discrimination in the provision of municipal services and eradication poverty within communities. However, ever since the establishment of local government sphere in South Africa, the sphere of local government is fraught with many challenges which make it impossible for municipalities to render proper municipal services to the members of the public. This is evident from the protests which were observed in the country ever since the year 2008 were communities demanded better services from their municipalities. This mini-dissertation therefore discusses the application of the principles of corporate governance in delivering and improving municipal service in South Africa. It further discusses the legislative framework and the institution of government which are responsible for the effective implementation of corporate governance in the local government sphere. Pursuant to that it also explains the concept of Corporate Governance within the local government. Furthermore, it discusses the parameters of the challenges that are faced by the municipalities which are ranging from fraud, nepotism, corruption and poor financial management which result in poor service delivery.

While the formal modern banking system in Nepal commenced in 1937, actual financial regulations and supervision of the Nepalese banking industry started only from 1956 when the Central bank of Nepal was established. The Nepal Rastra Bank has been gradually embracing various international best practices for supervising and regulating its banking industry that is suitable for its domestic market need. This project examines the extent to which Nepalese commercial banks are embracing the Basel framework of corporate governance principles for risk management. To do this, it integrated the Basel frameworks with the legal, regulatory framework and relevant prudential rules and regulations that regulate commercial banks of Nepal to understand the concept, principles and practices of corporate governance and risk management. This project contributes to the literature in the field of corporate governance and risk management, particularly in the Nepalese context. It provides a clear and sufficient picture of the risk governance practices of the commercial banks of Nepal in terms of their compliance with the Rastra Bank’s risk governance requirements and, simultaneously, with their implementation of the Basel framework of corporate governance principles of risk management.

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'

In the years since the global financial crisis (GFC) in 2008 there has been increased scrutiny of Chief Executive Officer (CEO) remuneration packages in Australia, the United States of America (USA) and Japan. The respective parliaments in these countries introduced laws to increase corporate disclosure practices and shareholder engagement. However, shareholders do not consider the legislative regime, the actions of regulators, or the judiciary to be effective monitors of corporate behaviour. There is a common belief that the design of CEO remuneration packages can encourage excessive risk-taking by CEOs and that this, to some extent, contributed to the GFC and to corporate failures around this time. The subsequent lack of public and investor trust in the operations of corporations and the wider perception that a lack of transparency exists around CEO remuneration makes it difficult for shareholders to determine whether the remuneration is appropriate. This thesis examined the operationalisation of disclosure and say on pay (SOP) laws in the top 20 publicly listed companies in Australia, the USA and Japan from 2005 to 2015. Disclosure and SOP are regulatory tools that play an important role in corporate governance. Disclosure laws have evolved in Australia, the USA and Japan to enhance transparency and accountability, increase investor protection, strengthen the national economy, and improve corporate governance. Both disclosure and SOP laws require companies to disclose the remuneration of the CEO and other senior executives. SOP laws are designed to empower shareholders to approve or reject the remuneration policy of the company in which they invest. In Australia and the USA, SOP laws are non-binding; whereas, in Japan SOP laws are binding, but not all companies disclose CEO remuneration due to the unique nature of the country’s corporate governance practices and social norms. The researcher examined the operationalisation of the disclosure and SOP laws in each of these countries against this background. The present study examined the operationalisation of disclosure and SOP laws in Australia, the USA and Japan by analysing the annual reports of the top 20 publicly listed companies in each country and the relevant existing literature. The study sought to test the following four hypotheses to determine whether there is the need for more government regulation in each national setting: • disclosure practices will promote transparency and accountability; • disclosure practices will improve the link between CEO remuneration and company performance; • SOP will create shareholder wealth; and • SOP will restrain increases of CEO remuneration. This study found that disclosure and SOP laws in Australia and the USA have enhanced transparency, board accountability and shareholder engagement. Further, this study found that SOP laws in Australia appear to have restrained increments in CEO remuneration levels. In the USA, there is no notable reduction in CEO remuneration levels. By comparison, the application of the laws in Japan has increased transparency, although only half of the top 20 publicly listed companies disclosed individual CEO remuneration payments, and remuneration levels increased in those companies over the study period. Lastly, a key finding of this study is that distinctions in corporate governance practices in Japan and those of Australia and the USA may be diminishing, as Japanese companies appear to be gradually adopting an Anglo-American style of corporate governance. The researcher has concluded from these findings that Australian and the American companies may benefit from stakeholder approaches by balancing the interests of all stakeholders, particularly employees and customers. Comparably, Japanese companies may benefit from enhanced disclosure and SOP laws through increased board monitoring and transparency in financial markets, and through quantifiably better corporate performances. Consequently, this will increase Japanese companies’ access to capital and may subsequently result in a stronger Japanese economy. directors of companies increase the focus on managing the company in the best interests of all stakeholders to achieve long-term economic sustainability. Finally, the operationalisation of disclosure and SOP laws in the selected Australian, American and Japanese companies demonstrated complexities and weaknesses that require enhanced board oversight of the CEO and enhanced CEO oversight of employees to further improve transparency and accountability. This study recommends that the weaknesses not be closed by further government regulation but by the implementation of changes to corporate cultures and to the compliance systems within the respective companies.

The degree to which a country’s public entities observe basic principles of good corporate governance is an increasingly important factor for attracting investment capital, maintaining economic stability and encouraging growth. Zimbabwe is faced with the challenge of restructuring for greater efficiency and creating an investment-friendly environment, therefore practicing good corporate governance in public entities is crucial for success and economic growth. As business entities, public entities need to be managed effectively by a competent board, which is able to construct and implement strategies that are in the best interests of the entity and all stakeholders. This study focuses on the corporate governance initiatives, laws and regulations aimed at enhancing the effectiveness of boards of public entities in Zimbabwe. The key question addressed is whether or not the corporate governance initiatives and legal and regulatory reforms in Zimbabwe are sufficient to enable boards of public entities to effectively discharge their duties and meet internationally accepted corporate governance standards. A comparative analysis of Zimbabwe’s public entities corporate governance framework to that of South Africa (a developing country like Zimbabwe) and Australia (a developed country with similar common law heritage) is also conducted. Recommendations are made on how best to enhance the effectiveness of boards of public entities in order to promote good corporate governance practices in Zimbabwean public entities. The research established that the existing corporate governance framework has not been effective in improving the effectiveness of Zimbabwe public entity boards due to lack of commitment and consistency, political interference, weak enforcement mechanisms, corruption and general disregard for the rule of law. The research found that South Africa and Australia have performed better than Zimbabwe in terms of creating conducive environments for boards of public entities to effectively discharge their duties. To improve the effectiveness of public entity boards, it was found that boards should be properly empowered, government intervention should be minimised, board appointment processes should be transparent and merit-based, boards should be properly composed, board remuneration should be fair and performance related, the performance of the board should be regularly evaluated and effective enforcement mechanisms should be put in place.
Mercantile Law
LL. D.

This thesis argues that Hong Kong should establish a pluralistic regime to regulate directors, because amending the law cannot resolve the gap in regulation created by the incongruity between the law of directors’ duties, and the values that underpin the governance practices in Chinese family companies. This research is important for the reason that unless this incongruence is dealt with, experiences have suggested that governance and related problems in Chinese family companies could escalate into wind up action. Furthermore, this gap in regulation could affect more than half a million companies in Hong Kong. At present, the law of directors’ duties in Hong Kong is essentially British, introduced during the colonial administration over a century ago. The legal obligations are fiduciary in nature. To date, amendments to the law of directors’ duties in Hong Kong are limited to discussions about codification along the lines of the British law reforms. And after two decades the government was finally able to achieve some consensus amongst the business and professional elites in Hong Kong to codify directors’ duty of care. However, fiduciary duties remained general law obligations. British laws continue to be used as benchmarks for Hong Kong’s corporate governance regulation in order to encourage international investments into the Territory’s equity markets. Whilst it is appropriate for publicly listed and non-family companies, it is ill suited for Chinese family companies, because in these companies, the underlying values of governance focus on the control of the family company by the family patriarch, and on maintaining harmonious relationships amongst family members. These values and norms emanate from Confucian doctrines that have been embedded in the Chinese psyche for centuries. In sum, there appears to be one set of formal legal rules and another informal normdriven value based normative ordering regulating directors in Hong Kong. However, without a regulatory framework, compliance with the informal normative ordering is capricious. To resolve this, nodal governance theory proposes that networks are well suited to be organised as a self-regulatory node or body. Since Hong Kong’s economy is built on networks of family companies, they can be effectively mobilised as a self-regulatory node or body to fill the current gap in the territory’s corporate governance regulatory regime. The proposed Chinese self-regulatory node or body should deal with conflicts in Chinese family companies, because without a forum to address grievances they could escalate to the point of fen jia (division of assets leading to liquidation). Thus, culturally appropriate intervention and assistance is vital to find solutions to company disputes. Given that paternalism and harmonious relationships underpin the governance of Chinese family companies in Hong Kong, they are central to the regulatory proposal. However, these Confucian enthused values could not be regulated through legal rules. Instead, it is through persuasion and compromises that they are applied to bring about a mediated resolution. Since governmental recognition and judicial practice direction on mediation in Hong Kong is already in place, the mediated outcomes by a Chinese self-regulatory node or body could be deemed by the courts to be an alternative dispute resolution procedure to settle disputes concerning the governance of Chinese family companies. Lastly, even though this reform proposal is conceptual and more research needs to be done, the recommendations of this thesis are aimed at addressing a long neglected area of corporate governance regulation in Hong Kong.

This research looks at the need and enforceability of legal warranties that companies include in contracts and/or public displays/notices to limit the company’s liability exposure to third parties. It also discusses the liability incurred by a company and that of its directors in their personal capacities (if any) should the legal warranty implemented be found to be unenforceable. The liability that may be incurred by the company and/or its director/s is dependent on whether the legal warranty which it implemented is enforceable or not and therefore it is important to establish what would constitute an enforceable legal warranty. In order to determine what is likely to constitute an enforceable legal warranty the study looks back at what has previously been deemed to constitute an unenforceable legal warranty. This is done by analysing the common law principles of contract, being the freedom to contract and the sanctity of contract, and its development in accordance with our constitutional dispensation through case law precedents. The provisions of the Consumer Protection Act 68 of 2008 that apply to legal warranties are also analysed in order to determine the anticipated outcome of future case law where the Consumer Protection Act 68 of 2008 may be applicable to a dispute involving legal warranties. Once what constitutes an unenforceable legal warranty is established, the study will discuss the legal position of a third party, and that of the company, where a third party has suffered damages as a result of the company’s acts or omissions and the company is unable to raise a legal warranty as a defence against such liability, as the legal warranty is found to be unenforceable. Thereafter the study will discuss the measures available to the company where the company is found liable to the third party for the aforementioned damages and the company wishes to mitigate its losses in this regard. Such measures shall include director insurance as well as the recovery of such liability against a director, in the director’s personal capacity, where the company either does not have director insurance or is unable to enforce the director insurance due to the actions of a director. In order to determine the director’s accountability to the company in this regard an assessment is made of the duties imposed on a director in terms of the common law and Companies Act 71 of 2008 to establish whether such duties are wide enough to include a duty on the director to ensure legal warranties he/she plays a part in implementing are enforceable.
Mercantile Law
LL. M. (Corporate Law)

As a company is a juristic person it can only act through human agency. A question that arises because of this fact is under what circumstances a company can be held to a contract by a third party where its representative was unauthorised to enter into such contract. There should be a careful weighing and balancing of the interests of the shareholders and the company on the one hand and the contracting third party on the other. It is further important to have legal certainty on the validity and enforceability of contracts concluded by and with companies as the absence of certainty can hamper business dealings with companies which would have an impact on the economy. The common-law principles of agency form the foundation upon which representation within the context of company law takes place. The law of agency has been adapted in the context of company law to satisfy the unique needs that have originated in this regard. One such adaptation is the creation of the Turquand rule by the English courts which rule was taken over by the South African courts. One of the primary reasons for creating the Turquand rule was due to the harsh effect that the common-law doctrine of constructive notice had on third parties dealing with a company. In this study an examination of the current legal position regarding representation of a company in South Africa was undertaken. The history and development of the common-law principles of agency and doctrines that are unique to representation in a company law context are analysed and the relevant sections of the Companies Act 71 of 2008 are discussed. The integration of the common-law principles with the relevant provisions of the Companies Act 71 of 2008 is considered and recommendations are made in respect thereof. In support of the analysis, a comparative study was undertaken of the history and development of this subject matter in England. It was concluded that South African company law, with all its shortcomings and uncertainties is still to be preferred above the position in England.
Aangesien ‘n maatskappy ‘n regspersoon is, kan dit slegs deur middel van natuurlike persone as agente optree. ‘n Vraag wat as gevolg van hierdie feit ontstaan is onder watter omstandighede ‘n maatskappy deur ‘n derde party gebonde gehou kan word aan ‘n kontrak waar die maatskappy se verteenwoordiger nie gemagtig was om die kontrak aan te gaan nie. Daar behoort ‘n versigtige afweging te wees tussen die belange van die maatskappy en sy aandeelhouers aan die een kant en ‘n derde party wat met die maatskappy kontrakteer aan die ander kant. Dit is verder belangrik om regsekerheid te hê oor die geldigheid en afdwingbaarheid van kontrakte wat met maatskappye aangegaan word aangesien die afwesigheid daarvan besigheidsverkeer met maatskappye kan kortwiek wat ‘n impak op die ekonomie tot gevolg sal hê. Die gemeenregtelike beginsels van verteenwoordiging vorm die basis waarop verteenwoordiging binne die konteks van maatskappyereg plaasvind. Verteenwoordigingsreg is aangepas binne die konteks van maatskappye om voorsiening te maak vir die unieke behoeftes wat in hierdie verband ontstaan het. Een sodanige aanpassing is die skepping van die Turquand reël deur die Engelse howe, welke reël deur die Suid-Afrikaanse howe oorgeneem is. Een van die hoofredes vir die skepping van die Turquand reël is die onregverdige uitwerking wat die gemeenregtelike leerstuk van toegerekende kennis op derde partye gehad het wat met ‘n maatskappy onderhandel. ‘n Studie van die huidige regsposisie rakende verteenwoordiging van ‘n maatskappy in Suid-Afrika is hierin gedoen. Die geskiedenis en ontwikkeling van die gemeenregtelike beginsels van verteenwoordiging en leerstukke eie aan verteenwoordiging in die konteks van maatskappyereg is geanaliseer. Die betrokke artikels van die Maatskappywet 71 van 2008 word bespreek. Die integrasie van hierdie gemeenregtelike beginsels met die betrokke bepalings van die Maatskappywet 71 van 2008 is oorweeg en aanbevelings in verband daarmee gemaak. Ter ondersteuning van die analise is ‘n vergelykende studie van die gekiedenis en ontwikkeling van hierdie onderwerp in Engeland onderneem. Daar is tot die slotsom gekom dat die Suid-Afrikaanse maatskappyereg, met al sy tekortkominge en onsekerhede nogsteeds bo die posisie in Engeland te verkies is.
Mercantile Law
LL. M.

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.

Section 71(3) of the Companies Act 71 of 2008 has introduced into South African company law a provision which for the first time permits the board of directors to remove another director from office in certain specific instances. A further significant innovation in the Companies Act 71 of 2008 is contained in section 162, which empowers a court to make an order declaring a director delinquent or placing him under probation in specific instances. The effect of section 162 is that a court is empowered to remove a director from the board of directors. The focus of this thesis is the removal of directors from office by the board of directors and by the judiciary. The thesis explores the underpinning philosophy of the statutory provisions relating to the removal of directors from office. It also examines the impact of the power given to the board of directors and to the courts to remove a director from office. The grounds and the procedures for the removal of directors by the board of directors and the judiciary are examined. The fiduciary duties applicable to directors in removing a director from the board of directors are also explored. In addition, this thesis examines the removal of directors holding multiple positions or capacities in relation to a company, such as an employee or a shareholder with loaded voting rights. The remedies which may be relied on by a director who has been removed from office by the board of directors are examined. Recommendations are made to strengthen and improve the provisions in the Companies Act 71 of 2008 relating to the removal of directors from office by the board of directors and the judiciary. Amendments to the Companies Act 71 of 2008 are suggested to remove ambiguities; to guard against the abuse of sections 71(3) and 162; to improve the grounds and procedures for the removal of directors by the board of directors and the judiciary, and to enhance the remedies that may be relied on by a director who has been removed from office by the board of directors.
Artikel 71(3) van die Maatskappywet 71 van 2008 het ’n bepaling tot Suid-Afrikaanse maatskappyreg toegevoeg wat die direksie vir die eerste keer in staat stel om ’n ander direkteur in sekere spesifieke gevalle uit sy of haar amp te verwyder. ’n Verdere belangrike vernuwing in die Maatskappywet 71 van 2008 word in artikel 162 vervat, wat ’n hof magtig om ’n bevel uit te vaardig wat ’n direkteur misdadig verklaar of hom of haar in spesifieke gevalle aan ’n proeftydperk onderwerp. Die effek van artikel 162 is dat ’n hof by magte is om ’n direkteur uit die direksie te verwyder. Die fokus van hierdie tesis is die verwydering van direkteure uit hul ampte deur die direksie en die regbank. Die tesis verken die onderliggende filosofie van die statutêre bepalings wat met die verwydering van direkteure uit hul ampte verband hou. Dit ondersoek ook die impak van die bevoegdheid wat aan die direksie en die howe verleen word om ’n direkteur uit sy of haar amp te verwyder. Die gronde en prosedures vir die verwydering van direkteure deur die direksie en die regbank word ondersoek. Die fidusiêre pligte van toepassing op direkteure by die verwydering van ’n direkteur uit die direksie word ook verken. Daarbenewens ondersoek hierdie tesis die verwydering van direkteure wat veelvuldige posisies of hoedanighede met betrekking tot ’n maatskappy beklee, soos ʼn werknemer of aandeelhouer met gelaaide stemregte. Die regsmiddele waarop ’n direkteur, wat deur die direksie uit sy of haar amp verwyder is, kan steun, word ondersoek. Aanbevelings word gemaak om die bepalings in die Maatskappywet 71 van 2008, wat met die verwydering van direkteure uit hul ampte deur die direksie en regbank verband hou, te versterk en te verbeter. Wysigings aan die Maatskappywet 71 van 2008 word voorgestel om dubbelsinnighede uit te skakel; om teen die misbruik van artikels 71(3) en 162 te waak; om die gronde en prosedures vir die verwydering van direkteure deur die direksie en die regbank te verbeter, en om die regsmiddele waarop ’n direkteur wat deur die direksie uit sy of haar amp verwyder is kan steun, te versterk.
ISigaba 71(3) Somthetho weZinkampani 71 ka 2008 sewuze wangenisa emithethweni yezinkampani zaseNingizimu Afrika, umthetho ongowokuqala ovumela ibhodi labaqondisi ukuthi libe namandla wokugudluza omunye umqondisi esikhundleni sakhe ngaphansi kwezimo ezithile. Olunye ushintsho olusha kuMthetho wama-71 weZinkampani ka 2008 uqukethwe yiSigaba 162, wona ugunyaza inkantolo ukuthi ikhiphe umyalelo owazisa umqondisi ngokuthi unecala noma obeka umqondisi ngaphansi kophenyo, phecelezi “probation” ngesinye isikhathi. Inhloso yeSigaba 162 wukunikeza inkantolo igunya lokugudluza umqondisi kwibhodi labaqondisi. Impokophelo yale thisisi wukugudluzwa kwabaqondisi, bagudluzwe yibhodi labaqondisi kanye nomthetho/nobulungisa. Ithisisi ihlola ifilosofi yemithetho ekhishiwe emayelana nokugudluzwa kwabaqondisi ezikhundleni zabo, Kanti futhi ihlola umthelela wamandla anikezwe ibhodi labaqondisi kanye nezinkantolo ukuthi zigudluze umqondisi esikhundleni. Izizathu kanye nengqubo elandelwayo mayelana nokugudluzwa kwabaqondisi yibhodi labaqondisi kanye nomthetho nazo ziyahlolwa. Imisebenzi emayelana nokuthembeka eyenziwa ngabaqondisi ukugudluza umqondisi kwibhodi labaqondisi nayo iyacwaningwa Ngaphezu kwalokhu, le thisisi .iphenya ukugudluzwa kwabaqondisi abaqokwe ezikhundleni eziningi noma abanegunya elithize ngokwengqubo yenkampani, enjengesisebenzi, phecelezi “employee” noma umabelwa-mashezi onamalungelo amaningi okuvota, phecelezi, “loaded with voting rights”. Izeluleko ezingasetshenziswa wumqondisi ogudluzwe esikhundleni sakhe yibhodi labaqondisi nazo ziyahlolwa. Izincomo nazo ziyenziwa ngenhloso yokuqinisa kanye nokuthuthukiswa kwamandla oMthetho we-71 weZinkampani ka 2008, mayelana nokugudluzwa kwabaqondisi ezikhundleni yibhodi labaqondisi kanye nomthetho. Izinguquko zoMthetho wama-71 weZinkampani ka 2008 ziqonde ukususa izixakaxaka, ukulwa nokudlelezelwa kweSigaba 71(3) kanye no 162, ukuthuthukisa izizathu kanye nezingqubo zokugudluzwa kwabaqondisi yibhodi labaqondisi kanye nomthetho, ukuqinisa izindlela zokulungisa ezingasetshenziswa wumqondisi osegudluziwe esikhundleni yibhodi labaqondisi.
Mercantile Law
LL. D.

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