The globalfinancial crisis which started in 2006 hit all businesses hard1.Since then, many big companies have risen, fallen and fallen even more. This cyclehas prompted most policy-makers worldwide to emphasis on long term objectivesand vital business decisions. This subject has triggered new focus on the ‘enlightenedshareholder value’ provisions in section 172 of the United Kingdom (‘UK’)Companies Act 20062. Section 172 of theCompanies Act 2006 contains the primary factors of the enlightened shareholdervalue (‘ESV’) of UK company law.
This affirms that a director’s duty shouldconsist of ‘promoting the success of the company for the benefit of its membersas a whole’ and as a result, directors have a list of duties to which they arerequired to ‘have regard’ when discharging duties.The ESV principalsin 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 insteadof particular instructions to attempt, or avoid undertaking, specific actions.However, section 172(1) of the act requires directors to have regard tofollowing principles in discharging their core duties: thelikely consequences of any decision in the long term,theinterests of the company’s employees,theneed to foster the company’s business relationships with suppliers, customersand others,theimpact of the company’s operations on the community and the environment,thedesirability of the company maintaining a reputation for high standards ofbusiness conduct, andtheneed to act fairly as between members of the company3. During the late1990s, the Company law Review Committee initiated a review on the UK companylaw resulting in recommendations of the inclusion of ESV principles in thecompanies act. The ReviewCommittee contemplated to a point whether the obligation of trust and faith fordirectors of UK companies should remain the shareholders focal point of thecommon law, 4.
or ought to be remodel along ‘pluralist’ lines, with directorscompelled to give exact measures to the interests of constituencies (bodieselectorate), for example, organization workers and creditors (loan bosses),parallel to the needs of shareholders.5 However, the Committee proclaims to bein compassion in regard the view that business matters should be dealt with aneye 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 reasonablecommitment on directors that guaranteed engagement and competitive management whichdid not turn them ‘from business decision makers into moral, political oreconomic arbiters’.6 Nonetheless,compulsory pluralism was dismissed in respect of ESV 7. This was offered as amethod for holding the benefits of focused management encouraged by theshareholders-orientation in regard to the common law obligations. However, thiscaught a few of the comprehensive parts of pluralist ways to deal withcorporate governance.8The considerationof ESV standards in the UK Companies Act gives the obligation of faithfulnessin UK law an alternate look such as the customary common law duty to act ‘bonafide in the best interests of the company’ 9 and to the identical statutoryarrangements in Australia and New Zealand.’ 10 It is unclear to what degree thestatutory statement of ESV standards has changed the substance of the duties inUK company law.
The main duties in section 172 still advocates the interests ofthe members mainly while directors in the other hand have to ‘have regard’ toESV standards when discharging their duty. Furthermore, the obligations insection 172 is owed to the “company” and outcasts have no capacity, in anyevent where an organization is solvent, to implement ESV principles. The acceptance ofESV principles along UK standards has been supported in different jurisdictionsas an alluring methods for combating issues in corporate governancedistinguished in the wake of the worldwide financial crisis. For instance,Harper Ho, has supported the adoption of an ESV model in US jurisdictions onthe premise that, while ESV does not compel directors to follow up on the stakeholdersinterests, it regardless ’embraces a multi-partner basic leadership run andmakes management in any event indirectly accountable to stakeholders’l2 . Thishas the impact of ‘pushing companies toward a greater social responsibility’.
13The Hong Kong Companies code have additionally adopted the concept of ESV as aresult of the advocacy by Shan Ho. However, for this situation, it was adoptedon the premise that ESV reflects ‘present day business practices’, instead of asa particular reaction to the events of 2008-09.14 In regard to theapproach of UK company law to stakeholders, we can argue that ESV does notdemonstrate any substantive change. Thus, the model of the UK Companies Act isof suspicious convenience to different jurisdictions when looking to enhancesocial responsibility in their company law. This argument is progressed in threesections. To start with, itis noticed that in spite of the extended checklist of ESV principlesincorporated into section 172, the arrangement does no more than state expresslywhat has already been certain in the common law, specifically that ‘havingregard’ to the interests of other constituencies is an indispensable piece whenoverseeing companies for the advantage of its members.
It is noticed that thestatutory statement of ESV principles can possibly go about as a stimulant forimprovement in stakeholders insurance beyond the common law. Secondly withinthe same part of the act section 172, it is argued that this is unlikely in theface of procedural limitation. Insolvency law provisions, especially activitiesby creditors for misfeasance under section 212 of the UK Insolvency Act give aninstrument to bypassing these impediments in insolvent companies, yet it isnoticed that the ambiguous nature of ESV principals and vulnerabilitiessurrounding the capacity to recuperate considerable sums for breach of ESVprinciples make it impossible that the statutory statement will serve as anysubstantive progress on the common law position. Finally,it is contended that huge improvements in the assurance of stakeholders interestshave occurred through the utilization of the standard of ‘unfitness to be concerned inthe management of companies’ in the UK’s Organization DirectorsDisqualification Act 1986. The UK’s exclusion rules permit state agencyorganizations to act precisely as controller of a director’s conduct, which isevaluated against the expansive and adaptable standard of unfit conduct. Thisarticle demonstrates that this standard is routinely used to ensure theinterests of different shareholders and features the numerous procedural focalpoints that the exclusion rules have over ESV as a way to improve thesignificance of stakeholders interests in the regulation of a directors conduct.Hence examination of exclusions additionally outlines why ESV is not anespecially radical development in UK company law, however also indicates thatnor is it the best mechanism for upgrading stakeholder’s protection andassurance that UK law administrates.
What is the stakeholders theory and talk about it next The stakeholder’stheory addresses the different values and morals when managing an organisation. Thecommon law and ESV It isestablished that the UK common law drifts towards an economic and proprietaryanalysis of the company and as a result its main purpose is to maximise theprofits of its shareholders 15. Forexample, relating to the case of Re Smith v Fawcett Ltd 1942 1 ALL ER 542, itwas held that directors are “under a duty to act bona fide in what theyconsider to be the interests of the company”. This is a fiduciary duty andgives rise to a relationship of trust and confidence, this duty is owed to thecompany. Lord Greene MR held that the directors should have exercise theirdiscretion bona fide in what they considered – not what a court may consider – isin the interests of the company, and not for any other collateral purpose16.
This findings helped introduce a new view in Greenhalgh 17 as directors whereobliged to promote the interest of the cooperators as a general body instead ofthe company as a distinct legal entity. As directors havea duty of loyalty towards shareholders to maximize profits, the law furtherimposes a narrower duty on directors that could arise. For example their mightbe an conflict of interest for directors to exercise their powers in theinterest of the company as a separateLegal entity 18.This is because duties to members is mainly focused and based to maximizingprofits and financial revenues whereas duties to the company as a separatecommercial entity will include considering the interest of separatestakeholders which make up another entity, such as employees and creditors 19. Percivalv Wright 1902 is a great example as it held that directors only owe duties ofloyalty 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 inthe UK Company Act 2006, under section 1704. S 172 test Section 172 of theact includes a subjective test because the director’s good faith judgementplays an important role in contingent of what may appear to be in the bestinterest of the company. Firstly, it is vital to say that what constitutes “thesuccess of the company” is “one for the directors’ good faith judgment” 20 inevaluating the company’s objectives and making sure they are seen through.However, whether the derivative action will succeed, simply depends to a greatextent on the test of good faith adopted by the section, which seems to followthe old subjective test applied in common law. According to Warren J. in CobdenInvestments Ltd v RWM Langport Ltd, the old provision of good faith is”reflected” in section 172 so the new provision could be interpreted andevaluated in a similar manner. The explanatory notes to the Companies Act 2006confirm this outcome.
On the other hand,in regard to the case of Charterbridge Corp. Ltd V Lloyds Bank Ltd, the judgelooks at whether the director failed to act in good faith and gave enoughconsideration to the interest of the company. Since then, when a director failsto give any consideration to the interest of a company, a Charterbridge test isconsidered instead of immediately finding a breach of duty. This test considerswhether an intelligent and honest person in the position of the director wouldhave believed that the relevant decision was for the benefit of the company,and if so, there is no breach of duty 21.While section170(4) of the Companies Act 2006 states that there should be regards when correspondingcommon law rules in applying the new statutory duties, the explicit words ofsection 172 suggest only a subjective standard which leads to ambiguity.
Finally, we shall notice that section 172 has no references to this objectiveconsideration.