financial crisis which started in 2006 hit all businesses hard1.
Since then, many big companies have risen, fallen and fallen even more. This cycle
has prompted most policy-makers worldwide to emphasis on long term objectives
and vital business decisions. This subject has triggered new focus on the ‘enlightened
shareholder value’ provisions in section 172 of the United Kingdom (‘UK’)
Companies Act 20062.
Section 172 of the
Companies Act 2006 contains the primary factors of the enlightened shareholder
value (‘ESV’) of UK company law. This affirms that a director’s duty should
consist of ‘promoting the success of the company for the benefit of its members
as a whole’ and as a result, directors have a list of duties to which they are
required to ‘have regard’ when discharging duties.
The ESV principals
in section 172 are expressed with a high level of generalization and, as such,
reads especially like a table of entreaty to ‘good’ conduct by directors instead
of particular instructions to attempt, or avoid undertaking, specific actions.
However, section 172(1) of the act requires directors to have regard to
following principles in discharging their core duties:
likely consequences of any decision in the long term,the
interests of the company’s employees,the
need to foster the company’s business relationships with suppliers, customers
impact of the company’s operations on the community and the environment,the
desirability of the company maintaining a reputation for high standards of
business conduct, andthe
need to act fairly as between members of the company3.
During the late
1990s, the Company law Review Committee initiated a review on the UK company
law resulting in recommendations of the inclusion of ESV principles in the
Committee contemplated to a point whether the obligation of trust and faith for
directors of UK companies should remain the shareholders focal point of the
common law, 4. or ought to be remodel along ‘pluralist’ lines, with directors
compelled to give exact measures to the interests of constituencies (bodies
electorate), for example, organization workers and creditors (loan bosses),
parallel to the needs of shareholders.5 However, the Committee proclaims to be
in compassion in regard the view that business matters should be dealt with an
eye to the long haul. This should help improve the welfare of various societies,
yet the committee felt that it was critical that the law set a reasonable
commitment on directors that guaranteed engagement and competitive management which
did not turn them ‘from business decision makers into moral, political or
compulsory pluralism was dismissed in respect of ESV 7. This was offered as a
method for holding the benefits of focused management encouraged by the
shareholders-orientation in regard to the common law obligations. However, this
caught a few of the comprehensive parts of pluralist ways to deal with
of ESV standards in the UK Companies Act gives the obligation of faithfulness
in UK law an alternate look such as the customary common law duty to act ‘bona
fide in the best interests of the company’ 9 and to the identical statutory
arrangements in Australia and New Zealand.’ 10 It is unclear to what degree the
statutory statement of ESV standards has changed the substance of the duties in
UK company law. The main duties in section 172 still advocates the interests of
the members mainly while directors in the other hand have to ‘have regard’ to
ESV standards when discharging their duty. Furthermore, the obligations in
section 172 is owed to the “company” and outcasts have no capacity, in any
event where an organization is solvent, to implement ESV principles.
The acceptance of
ESV principles along UK standards has been supported in different jurisdictions
as an alluring methods for combating issues in corporate governance
distinguished in the wake of the worldwide financial crisis. For instance,
Harper Ho, has supported the adoption of an ESV model in US jurisdictions on
the premise that, while ESV does not compel directors to follow up on the stakeholders
interests, it regardless ’embraces a multi-partner basic leadership run and
makes management in any event indirectly accountable to stakeholders’l2 . This
has the impact of ‘pushing companies toward a greater social responsibility’. 13
The Hong Kong Companies code have additionally adopted the concept of ESV as a
result of the advocacy by Shan Ho. However, for this situation, it was adopted
on the premise that ESV reflects ‘present day business practices’, instead of as
a particular reaction to the events of 2008-09.14
In regard to the
approach of UK company law to stakeholders, we can argue that ESV does not
demonstrate any substantive change. Thus, the model of the UK Companies Act is
of suspicious convenience to different jurisdictions when looking to enhance
social responsibility in their company law. This argument is progressed in three
To start with, it
is noticed that in spite of the extended checklist of ESV principles
incorporated into section 172, the arrangement does no more than state expressly
what has already been certain in the common law, specifically that ‘having
regard’ to the interests of other constituencies is an indispensable piece when
overseeing companies for the advantage of its members. It is noticed that the
statutory statement of ESV principles can possibly go about as a stimulant for
improvement in stakeholders insurance beyond the common law.
the same part of the act section 172, it is argued that this is unlikely in the
face of procedural limitation. Insolvency law provisions, especially activities
by creditors for misfeasance under section 212 of the UK Insolvency Act give an
instrument to bypassing these impediments in insolvent companies, yet it is
noticed that the ambiguous nature of ESV principals and vulnerabilities
surrounding the capacity to recuperate considerable sums for breach of ESV
principles make it impossible that the statutory statement will serve as any
substantive progress on the common law position.
it is contended that huge improvements in the assurance of stakeholders interests
have occurred through the utilization of the standard of ‘unfitness to be concerned in
the management of companies’ in the UK’s Organization Directors
Disqualification Act 1986. The UK’s exclusion rules permit state agency
organizations to act precisely as controller of a director’s conduct, which is
evaluated against the expansive and adaptable standard of unfit conduct. This
article demonstrates that this standard is routinely used to ensure the
interests of different shareholders and features the numerous procedural focal
points that the exclusion rules have over ESV as a way to improve the
significance of stakeholders interests in the regulation of a directors conduct.
Hence examination of exclusions additionally outlines why ESV is not an
especially radical development in UK company law, however also indicates that
nor is it the best mechanism for upgrading stakeholder’s protection and
assurance that UK law administrates.
What is the stakeholders theory and talk about it next
theory addresses the different values and morals when managing an organisation.
common law and ESV
established that the UK common law drifts towards an economic and proprietary
analysis of the company and as a result its main purpose is to maximise the
profits of its shareholders 15. For
example, relating to the case of Re Smith v Fawcett Ltd 1942 1 ALL ER 542, it
was held that directors are “under a duty to act bona fide in what they
consider to be the interests of the company”. This is a fiduciary duty and
gives rise to a relationship of trust and confidence, this duty is owed to the
company. Lord Greene MR held that the directors should have exercise their
discretion bona fide in what they considered – not what a court may consider – is
in the interests of the company, and not for any other collateral purpose16.
This findings helped introduce a new view in Greenhalgh 17 as directors where
obliged to promote the interest of the cooperators as a general body instead of
the company as a distinct legal entity.
As directors have
a duty of loyalty towards shareholders to maximize profits, the law further
imposes a narrower duty on directors that could arise. For example their might
be an conflict of interest for directors to exercise their powers in the
interest of the company as a separate
Legal entity 18.
This is because duties to members is mainly focused and based to maximizing
profits and financial revenues whereas duties to the company as a separate
commercial entity will include considering the interest of separate
stakeholders which make up another entity, such as employees and creditors 19. Percival
v Wright 1902 is a great example as it held that directors only owe duties of
loyalty to the company not individual shareholders. As a result of this case,
the traditional approach to company law has changed and this is now codified in
the UK Company Act 2006, under section 1704.
S 172 test
Section 172 of the
act includes a subjective test because the director’s good faith judgement
plays an important role in contingent of what may appear to be in the best
interest of the company. Firstly, it is vital to say that what constitutes “the
success of the company” is “one for the directors’ good faith judgment” 20 in
evaluating the company’s objectives and making sure they are seen through.
However, whether the derivative action will succeed, simply depends to a great
extent on the test of good faith adopted by the section, which seems to follow
the old subjective test applied in common law. According to Warren J. in Cobden
Investments Ltd v RWM Langport Ltd, the old provision of good faith is
“reflected” in section 172 so the new provision could be interpreted and
evaluated in a similar manner. The explanatory notes to the Companies Act 2006
confirm this outcome.
On the other hand,
in regard to the case of Charterbridge Corp. Ltd V Lloyds Bank Ltd, the judge
looks at whether the director failed to act in good faith and gave enough
consideration to the interest of the company. Since then, when a director fails
to give any consideration to the interest of a company, a Charterbridge test is
considered instead of immediately finding a breach of duty. This test considers
whether an intelligent and honest person in the position of the director would
have believed that the relevant decision was for the benefit of the company,
and if so, there is no breach of duty 21.
170(4) of the Companies Act 2006 states that there should be regards when corresponding
common law rules in applying the new statutory duties, the explicit words of
section 172 suggest only a subjective standard which leads to ambiguity.
Finally, we shall notice that section 172 has no references to this objective