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: Latin American Cooperative Law lacks a specialized legal regulation on the fiduciary duties of the special subjects of Cooperative Law, specifically designed according to the philosophical precepts and values of cooperativism. In some jurisdictions there is even the practice of resorting to the use of behavioral archetypes developed in other contexts of Business Law, whose application within Cooperative Law is contrary to its philosophical essence. We maintain that the development and consolidation of Cooperative Law would require the elaboration of legal behavioral standards specifically designed to govern the particular subjects of Cooperative Law. On the basis of the broad philosophical literature examined, we propose the incorporation within the normative bodies of Latin American Cooperative Law of a fiduciary standard specially constructed to govern the conduct of such subjects, namely: the archetype of good, educated and committed cooperative persons. [ABSTRACT FROM AUTHOR]

Virtual assistants (VAs), like Amazon’s Alexa, Google’s Assistant, and Apple’s Siri, are on the rise. However, despite allegedly being ‘assistants’ to users, they ultimately help firms to maximise profits. With more and more tasks and leeway bestowed upon VAs, the severity as well as the extent of conflicts of interest between firms and users increase. This article builds on the common law field of fiduciary law to argue why and how regulators should address this phenomenon. First, the functions of VAs resemble established fiduciaries, namely mandataries when they perform tasks on behalf of users, and increasingly advisors whenever they provide recommendations or suggestions. Second, users grant firms deploying VAs ever more discretion over their economic, and more and more significant non-economic interests, such as their health or finances. This delegation of power renders users vulnerable to abuse of power and inadequate performance by firms deploying VAs. Moreover, neither specification or monitoring nor market forces are alternatives that can sufficiently protect users. Thus, regulation is needed, departing from the recognition of the relationship between firms deploying VAs and users as a fiduciary relationship. In the EU, this could be realised through fiduciary requirements for VAs. First and foremost, to adequately protect users from abuse of power by firms deploying VAs, the core fiduciary duty of loyalty should be converted into corresponding fiduciary requirements for VAs, obliging firms to align VAs with their users. [ABSTRACT FROM AUTHOR]

Under the Employee Retirement Income Security Act of 1974 (ERISA), fiduciaries have a strict duty of loyalty--to act 'solely in the interest of participants and beneficiaries' and 'for the exclusive […]

Objective: to clarify the concept of “conflict of interest”, to identify the peculiarities of conflict of interest resolution in group proceedings, and to develop practical recommendations to prevent conflict of interest in judicial and advocacy activities.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and comparative-legal.Results: the objective impossibility of legislatively stipulating all possible variants of conflicts of interest makes it necessary to resolve both “real” and “seeming” conflicts of interest directly by the law enforcer. The lack of appropriate rules and recommendations causes uncertainty regarding the presence (absence) of a judge’s conflict of interest. The article formulates the main signs of a conflict of interest: a) a contradiction between the personal (private) interests of a judge and the principles of justice; b) personal interest of a judge; c) financial interest of a judge; d) the existence of a legal fact confirming the conflict of interest; e) the need to inform the persons involved in the case about the conflict of interest; f) the burden of proving the grounds for recusal lies with the applicant. In addition, the author provides a legal assessment of the measures of settling a conflict of interest in judicial activity, outlines approaches and proposals to improve the institute of conflict of interest settlement in judicial and advocacy activities, and reveals the peculiarities of conflict of interest settlement in group proceedings.Scientific novelty: the article presents a comprehensive study of the institute of conflict of interest in judicial and advocacy activities, in which the main features of conflict of interest in judicial and advocacy activities are identified, the peculiarities of conflict of interest settlement in proceedings for the protection of rights and legitimate interests of a group of persons are determined, a comparative legal analysis of foreign and Russian law enforcement practice on the conflicts of interest settlement is carried out.Practical significance: the main conclusions of the article can be used in law-making activities to improve the legal regulation of the conflict of interest institute. The formulated provisions and conclusions can be used in lectures, seminars, preparation of methodological materials on legal disciplines.

Corporations wield power in today's economies, and political theories of the corporation argue about the legitimacy conditions of corporate power. This paper argues in favour of a double-fiduciary theory for corporations. Based on a concession theory of markets, it sees all markets as authorized by states (in the name of society), for the purpose of creating economic value, or wealth. Hence corporations, as much as non-incorporated firms, have a fiduciary duty to the state/society to create wealth, in the competitive structure of the market. However, their pursuit of wealth often creates unbalanced relations of power between corporations and their stakeholders, which can at some point be classified as instances of domination. Therefore, corporations need to be subjected to a second fiduciary duty, i.e. not to dominate others in the economy. This duty is also, in the final instance, owed to the state/society. In an era when everyone can incorporate their business, states/societies can be interpreted as having, through corporate law, mandated shareholders as 'proximate beneficiaries', to incentivize corporations to create wealth. Now states/societies need to think about how to prevent corporations from dominating others. New mechanisms of accountability towards stakeholders and/or citizens as proximate beneficiaries are needed. Only in this way can corporations be effectively held to account for both of the fiduciary duties which characterize their normative status. [ABSTRACT FROM AUTHOR]

Most legal systems recognize trusteeship functions of individuals or institutions to act on behalf and in the interest of those who cannot legally act for themselves. They can be advanced for the effective protection of future generations and the Earth. Guidance for Earth Trusteeship exist in the form of two agreements created by global civil society, the 2000 Earth Charter and the 2018 Hague Principles. Current opportunities include the UN Secretary General's call for "repurposing the Trusteeship Council", the UN Summit of the Future and ongoing developments in many countries towards implementing ecological integrity and rights of nature into their legal systems. [ABSTRACT FROM AUTHOR]

The role of chairman of the board of directors of a contemporary company has evolved from procedural and ceremonial to complex and demanding. This article examines the appointment, tenure, functions, and liabilities of this position, as regulated by the Companies Act 71 of 2008, the JSE Limited Listings Requirements, and the King IV Report on Corporate Governance for South Africa 2016. The aim is to ascertain whether the guidance provided to chairmen on their appointment, tenure, functions, and liabilities is clear and adequate to guide them on what is expected of them in contemporary companies. Company law in the United Kingdom and Australia is compared because this area of law has been extensively developed in these jurisdictions and may offer guidance on the regulation of the office of the chairman of South African companies. The article contends that the guidance provided to a chairman by South African legal instruments is neither clear nor adequate. It identifies several shortcomings in the regulation of the chairman and makes recommendations to enhance the South African statutory and corporate governance provisions regulating the chairman. [ABSTRACT FROM AUTHOR]

The debate on corporate governance of business companies and the discussions on the concept of corporate purpose intensified. Looking at the role of law in ensuring that businesses profit from creating benefits and not from creating detriments, it is worth distinguishing between interventions designed to incentivise the former (e.g., mandatory rules on sustainability disclosure or new dual‐purpose companies) and disincentivise the latter (tort or recent supply chain due diligence laws). Nevertheless, the existence of a grey area for activities that do not materialise in tort, or the violation of other mandatory rules cannot be denied and is probably where the reconceptualisation of fiduciary duties can mediate. New legal trends in these areas are mapped with a special focus on the European context and some comparative law considerations with respect to the United Kingdom and the United States. Finally, a suggestion for the future of European harmonisation on dual‐purpose companies will be offered. [ABSTRACT FROM AUTHOR]

Copyright of Contemporary Accounting Research is the property of Canadian Academic Accounting Association and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In the era of rapid technological progress, companies which are important and influential pillars in society, cannot continue their existence with the same old slow methods, commensurate with the speed of impact of technology, especially smart technologies on society, and they should think about using the new and more agile ways of directing the corporation. As the working environment of companies has become more complex, which is caused by the need to process large amounts of information and data and make faster decisions, and on the other hand, due to scandals caused by the improper performance of company directors, trust in directors has been weakened. Restoring this trust requires the selection of directors who are far from personal interests and bias and perform their duties with enough loyalty and care. In such a situation, the characteristics of artificial intelligence have attracted the attention of company directors and corporate law experts to the possibility of using it as a director of commercial companies, and in scientific circles, the question of whether AI can be used as a director in the economic and social sectors, especially in commercial companies has become a hot debate. However, the entry of artificial intelligence into the board of directors faces challenges that mostly arise from the autonomy and different characteristics of autonomous artificial intelligence from the technologies before it. The competence to accept the position and how to perform the fiduciary duties and obligations of directors, as well as identifying the regime of responsibility, are the most important challenges in choosing artificial intelligence as a director. The approach and purpose of the article are to explain the competence and the possibility of performing the duties and obligations of directors by artificial intelligence and to identify the efficient responsibility regime, to the extent of proving the possibility of becoming a director. In this regard and in the upcoming article, by studying and reviewing the opinions of artificial intelligence experts and lawyers, it has been compared the performance and characteristics of artificial intelligence and human directors and identified the capabilities of artificial intelligence in the position of a member of the company's board of directors. Regarding the eligibility to accept the position of directorship, it can be said that artificial intelligence, like humans, whose natural characteristics enable them to perform the actions of a representative, has the practical ability to become a director and perform duties as a representative of the company and can adjust its performance to achieve a clear goal that is the company's goal, in a way that we can say it intends. Although artificial intelligence has the practical ability to represent the company, in order to become a director, only practical ability is not enough and there must be a legislative prescription. In this regard, it is necessary for domestic legislators and international institutions, considering the capabilities and characteristics of artificial intelligence, to pass laws in order to identify the legal competence for it. Regarding the performance of duties and obligations of directors, due to the characteristics of artificial intelligence, including autonomy, logic, creativity, and the ability to make decisions very quickly in complex and difficult situations and process a large amount of data and information, without human intervention, artificial intelligence has the possibility to make decisions as a director and perform the tasks of directors. The authors' point of view is that with the legal design and coding of artificial intelligence, based on the established standards of company law regarding the duties of directors, artificial intelligence can fulfill the fiduciary duties of directors, away from conflicts of interest and bias, and with sufficient transparency and care. Regarding responsibility, although this technology is new and rapidly growing, most of the currently accepted principles and laws regarding responsibility are still applicable and there is no need to adopt a new approach to responsibility. However, considering the speed of artificial intelligence development, a responsibility regime must be described and implemented that does not lag behind the growth of technology and can act quickly in order to compensate for the damages. On the other hand, considering the risks that identifying any personality for AI will bring, an approach should be taken in the area of responsibility that always the developer or the company using AI as a director is accountable for the actions of artificial intelligence. It seems that a combination of legal regime and compensatory regime can solve the problem of responsibility. In the legal regime, responsibility instead of artificial intelligence and during judicial proceedings is attributed to the developer or company using AI as director, and in the compensation regime, losses are paid through compulsory insurance or a compensation fund or both. The compensatory liability regime increases the speed of compensation because the problems and slowness of the legal regime do not occur, and ensures the damages without entering into the judicial process. Finally, given the topics discussed in this article, AI has important capabilities that make it a good option to be a director. This approach is especially important for countries facing aging populations, migration of directors to more advanced countries, or cruel sanctions from other countries. Therefore, the legislator should make the necessary regulations to allow companies and the community to benefit from artificial intelligence as a member of the board of directors.

During the last two centuries, property understood as an exclusive and unlimited dominion became common sense. Before, the idea of property as a fiduciary relationship, which is still present in contemporary social constitutionalism, was closely linked to the view that the exercise of freedom entails the capacity to shape those property rights that channel socioeconomic life. Today, new ways to operationalise such an approach must be found. This article explores the scope of 'direct strategies' (the state as proprietor, democratically limited forms of private property, and common property) and 'indirect strategies' (the distribution of 'social power' through the introduction of unconditional public policy schemes such as basic income) in the recovery of the idea and the practice of collective fiduciary control over the economic realm. Keywords: bargaining power, basic income, economic democracy, fiduciary relationships, inalienable rights, nationalisation, property, social power, The Commonness of the Absolutist Interpretive Conjuncture of Property One of the main problems facing the study of philosophical and political traditions concerns the plausibility of their interpretations of past [...]

Today, one of the main players in the economy are companies. These entities are dependent on real persons to play their role, and these persons (directors) act as a member of the company's body. The importance of the company board of directors is that it can be called the executive branch of the company or the strategic government of the company. The management of the company's affairs according to the law and after that according to the will of the shareholders, has been entrusted to this organ, and following the assumption of this duty by the director, duties and powers as well as benefits have been defined for them according to the law, which are necessary for exercising the powers of the directors.Rulemaking in the field of duties and powers of directors in various legal systems is foreseen to achieve a goal that is in line with the goal of establishing the company. In fact, the purpose of establishing a company is to bring together multiple economic players with conflicting interests in order to achieve the common goal of making profit, and since the management of this group is entrusted to directors, the management goal must be determined and be available the necessary tools to achieve this common goal to them. Determining the general duties of directors through regulation is to determine the direction and create transparency for directors.PURPOSEIn this research, the main question is what policies the legislator pursues from regulation in this subject? And how did the Iranian and English legislators act in this regard? Also, this article tries to answer the above questions by descriptive-analytical method and comparative study of Iranian and English law.METHODOLOGYIn this research, a descriptive-analytical method with a comparative view has been used; In this way, first the general duties of directors are explained in in English and Iranian law, and then, with legal reasoning methods, The goals of establishing rules related to the general duties of directors in Iranian law are analyzed and examined.FINDINGSIn English law, the legislator has assigned a role beyond that of a trustee in the field of duties of managers. Therefore, it has predicted duties for the managers in order to achieve the three goals of "preventing conflict of interest", "protecting the company's interests" and "improving the company's status or improving the company's position".The first risk that arises in the relationship between the company and the directors is the misuse of their position in controlling the financial resources of the company, including property, reserves and credit. Therefore, considering the director as a trustee in the internal relations of the company and applying the guarantee of violation executions from this position can be very effective in solving the conflict-of-interest problem. This goal is provided by foreseeing the duty of avoiding the situation of conflict of interest and disclosing the acquisition of interest. One of the shortcomings of the legislation in this field in Iranian law is the failure to require managers to disclose the acquisition of profit. Of course, Article 129 of the legal bill to amend a part of the Commercial Law of 1968 in the transactions of the director with the company, foresees such a task for the board of directors, not the beneficiary director.The purpose of protecting the interests of the company is that the directors, by exercising the necessary care and caution, avoid losses to the company and the loss of its property, financial resources and reserves. This goal is achieved through various tasks. These duties include exercising independent votes or Duty exercise independent judgment, and Duty to act within powers. In Iranian law, by accepting the fiduciary duty for managers, we must accept that the goal of protecting the interests of the company is fulfilled to some extent.In the new law of British companies (2006), the legislator sought an approach to solve the problem of companies in advancing their goals. In this regard, the task of promoting the success of the company was predicted. The task of promoting the success of the company creates requirements for the director beyond the observance of trust, the non-compliance of which creates responsibility for the manager. In other words, the fiduciary duty creates a negative obligation for the director, but the duty to promote the success of the company creates a positive obligation. Positive commitment means improving the company's current situation.It can be inferred from the general duties of managers in English law that the goal of the legislator is to deal with the stagnation of companies and to oblige directors to make changes in their affairs, but this is not inferred from the total regulations governing the laws of Iranian companies.CONCLUSIONLike the English legislator in setting the general duties of directors, the Iranian legislator must pursue the three goals of "resolving the conflict of interest", "preserving the existing interests of the company" and "promoting the position of the company". The first two goals can be achieved despite the shortcomings of the directors' fiduciary duty, but the third goal is not achieved with this duty; because the duty of fiduciary is to maintain the current situation and its promotion needs to be regulated. In English law, the achievement of this goal is pursued with the task of "promoting the success of the company", but in Iranian law, the legislator has not paid attention to policy-making in this subject.Therefore, in amending the existing regulations, attention should be paid to the policy of promoting the company's position and existing status, and rules should be made in the field of general duties of managers according to Iran's legal system.

Directors' fiduciary duties form part of foundational principles in corporate law. This concept has its foundations in the law of agency. Prior to the Companies Act 71 of 2008 (the Companies Act), fiduciary duties were governed under common law, however, the advent of the Companies Act resulted in the partial codification of fiduciary duties. One of the central fiduciary duties is the duty of directors to avoid conflict of interest. This duty restricts the directors of a company from having their personal interests impede those of the company. There are separate rules that flow from the directors' duty to avoid conflict of interests, including the corporate opportunity rule. The corporate opportunity rule dictates that directors must not use their position to unfairly benefit from the contracts and/or information that rightfully belongs to the company they are managing. The objectives of the corporate opportunity rule were clarified in Modise v Tladi Holdings (Pty) Ltd (the Modise case). In partially confirming the judgment of the court a quo the Supreme Court of Appeal held that the ambit of breaching the corporate opportunity rule includes the illegal use of the property and confidential information of the company by a director for personal gain. This article agrees with the reasoning of both the High Court (court a quo or trial court) and the Supreme Court of Appeal in the Modise case on the issue of prescription although the article raises concerns about the decision of the Supreme Court of Appeal on a similar issue. Further, the article concurs with the reasoning of both the court a quo and the Supreme Court of Appeal in concluding that the applicants breached their fiduciary duty when they appropriated a corporate opportunity that belonged to the company. One of the major lessons that could be learnt from the Modise case is that directors, especially those who serve on multiple boards, should exercise extreme caution with potential conflicts of interest. [ABSTRACT FROM AUTHOR]

One of the central concepts in company law is that a company is a juristic person with a separate legal personality. Several consequences flow from the doctrine of separate legal personality, among other things, that a company owns its property and assets and may sue or be sued in its name. Therefore, shareholders do not have a direct right of action for a company's loss. The company itself should institute such a claim save for certain exceptional circumstances like derivative actions. Both the High Court (court a quo) and the Supreme Court of Appeal in Hlumisa Investment Holdings (RF) Ltd v Kirkinis (the Hlumisa case) confirmed that shareholders cannot claim diminution of share value that is linked to the misconduct of company directors and auditors. This article concurs with the court a quo and the Supreme Court of Appeal's interpretations that as a general rule, directors owe fiduciary duty only to the company and that shareholders cannot rely on a claim for reflective loss in company law. This article assesses the proper plaintiff and reflective loss rules against the backdrop of the Hlumisa case. [ABSTRACT FROM AUTHOR]

The objective of this article is to determine how Indian law can resolve the conflict of dual loyalties faced by nominee directors. We first study nominee directors' duties towards their nominator in commercial practice, and directors' duties under the stakeholder-oriented provision of section 166(2) in Indian Companies Act 2013. We then take stock of the judicial approaches towards nominee directors in the United Kingdom and in India. The Companies Act 2013 is presently inadequate to resolve the identified conflict. We suggest codifying a pragmatic approach by allowing nominee directors to pursue their nominator's interests, subject to the company's interests. To determine the company's interests, we refer to the Entity Maximisation and Sustainability Approach proposed by Andrew Keay that allows for a plurality of interests to be considered by a director, while providing a clear objective. In concluding, we call for further deliberation on the enforcement of the nominee directors' duties. [ABSTRACT FROM AUTHOR]

The new Chinese rules on agency do not impose broad "fiduciary" duties on agents--instead, there are a number of specific provisions designed to protect the principal against particular abuses to which it is peculiarly vulnerable in the principal/agent relationship. Chinese law, thus, deliberately refuses to follow the lead of English law, which imposes very strict and wide-ranging fiduciary duties on agents. This paper argues that this is probably wise. English law has to be seen against a matrix of a system of commercial law which was forged on the anvil of international trade and commodity supply contracts, leading to a set of rules that prefer certainty of outcomes (and the avoidance of litigation) overachieving particular justice in individual cases (such as might have been achieved by subjecting English law to an overarching "good faith" principle). English commercial law is adversarial, not cooperative. This explains why, in a relationship that is characterized by cooperation, such as the principal/agent relationship, the general rules of English commercial law are replaced by wide, justice-oriented rules. A system that is already based on cooperation, for which Chinese law is almost paradigmatic, is likely much more adept at applying the general rules to the agency relationship than English law would be. [ABSTRACT FROM AUTHOR]

One of the central concepts in company law is that a company is a juristic person with a separate legal personality. Several consequences flow from the doctrine of separate legal personality, among other things, that a company owns its property and assets and may sue or be sued in its name. Therefore, shareholders do not have a direct right of action for a company’s loss. The company itself should institute such a claim save for certain exceptional circumstances like derivative actions. Both the High Court (court a quo) and the Supreme Court of Appeal in Hlumisa Investment Holdings (RF) Ltd v Kirkinis (the Hlumisa case) confirmed that shareholders cannot claim diminution of share value that is linked to the misconduct of company directors and auditors. This article concurs with the court a quo and the Supreme Court of Appeal’s interpretations that as a general rule, directors owe fiduciary duty only to the company and that shareholders cannot rely on a claim for reflective loss in company law. This article assesses the proper plaintiff and reflective loss rules against the backdrop of the Hlumisa case.

Directors’ fiduciary duties form part of foundational principles in corporate law. This concept has its foundations in the law of agency. Prior to the Companies Act 71 of 2008 (the Companies Act), fiduciary duties were governed under common law, however, the advent of the Companies Act resulted in the partial codification of fiduciary duties. One of the central fiduciary duties is the duty of directors to avoid conflict of interest. This duty restricts the directors of a company from having their personal interests impede those of the company. There are separate rules that flow from the directors’ duty to avoid conflict of interests, including the corporate opportunity rule. The corporate opportunity rule dictates that directors must not use their position to unfairly benefit from the contracts and/or information that rightfully belongs to the company they are managing. The objectives of the corporate opportunity rule were clarified in Modise v Tladi Holdings (Pty) Ltd (the Modise case). In partially confirming the judgment of the court a quo the Supreme Court of Appeal held that the ambit of breaching the corporate opportunity rule includes the illegal use of the property and confidential information of the company by a director for personal gain. This article agrees with the reasoning of both the High Court (court a quo or trial court) and the Supreme Court of Appeal in the Modise case on the issue of prescription although the article raises concerns about the decision of the Supreme Court of Appeal on a similar issue. Further, the article concurs with the reasoning of both the court a quo and the Supreme Court of Appeal in concluding that the applicants breached their fiduciary duty when they appropriated a corporate opportunity that belonged to the company. One of the major lessons that could be learnt from the Modise case is that directors, especially those who serve on multiple boards, should exercise extreme caution with potential conflicts of interest.

Background: Society allows physicians the privilege and responsibility of caring for patients. Those responsibilities demand that their knowledge and technical expertise meet standards defined and policed by their colleagues, through medical societies or governmental entities. However, the fiduciary duty that patients' interests are held above those of the physicians' is an ethical precept that is tested when society is under threat.Discussion: Disasters that stress society are a constant and can present themselves in a myriad of ways to include medical, meteorological, or political. Minimizing the potential damage to the quality and quantity of life of the population is dependent upon public safety personnel and health care professionals who may put their health and safety in harm's way to care for patients. These acts may be taken for granted or assumed to be part of the professional obligations of physicians and other health care workers who work at the bedside. The obligations of physicians to their patients and society may differ from those not in the medical field, and the level of risk deemed acceptable by the physician and by society should be clearly delineated.Conclusion: Despite the conflict between normative and descriptive ethics, in times of disaster, physicians must respond to the call of duty. This duty is contingent on the responsibility being shared with governmental agencies and health care facilities, to mitigate the risks borne by those who answer the call. [ABSTRACT FROM AUTHOR]

Copyright of Taiwan Law Review is the property of Angle Publishing Co., Ltd and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The year 2020 proved to be a clarion call for global society. There is no longer doubt that increasingly we are experiencing unpredictable events, known as 'black swans', ranging from pandemics to financial meltdowns. One of the 'climate black swans' against which experts have cautioned is the financial crisis caused by climate change. In this context, the Australian case of McVeigh v. Retail Employees Superannuation Trust for the first time tested climate risk and the fiduciary duties of retail pension funds. Settled in November 2020, the case has already raised the bar for climate risk practice in pension funds. In particular, McVeigh suggests that courts, as well as out-of-court settlements, may articulate a duty, rather than grant permission, for pension funds to consider climate-related financial risk in their investment decisions. The article builds on McVeigh to ask two questions. Firstly, what is the role of climate change litigation in promoting climate regulation by pension funds? Secondly, what is the relative importance of pension funds for the risk management of climate-related financial risk via due diligence compared with risk assessment via disclosure? Fundamentally, the article explains climate-related financial risk as a cultural phenomenon and argues that a discussion on pension fund fiduciary duties must consider disclosure in addition to due diligence. It argues that McVeigh articulated the need for a normative approach to pension fund disclosure duties and an extension of the field of climate-related risk disclosure to embrace climate-related risk due diligence. [ABSTRACT FROM AUTHOR]

This study examines the effect of managerial fiduciary duties on the likelihood of firms receiving going concern (GC) opinions from their auditors. We exploit an influential 1991 legal ruling that expanded fiduciary duties of corporate directors and officers in favor of creditors for near-insolvent Delaware firms. Our difference-in-differences test reveals an increase in GC opinions following the ruling for near-insolvent Delaware firms. Further tests indicate an increase in type I audit opinion errors and no change in audit risk after the ruling. Additional analysis shows that, after the ruling, near-insolvent Delaware firms are less likely to dismiss their auditors following the receipt of a GC report. Overall, our findings are consistent with managers and directors with increased fiduciary duties toward creditors exerting less pressure on auditors and allowing them to reveal more GC opinions. Our results highlight important third-party consequences of changes in managerial fiduciary duties. This paper was accepted by Shiva Rajagopal, accounting. [ABSTRACT FROM AUTHOR]

Objective: theoretical and legal analysis of the application of the legal categories of good faith and reasonableness in judicial practice on corporate disputes related to bringing directors of companies to civil liability.Methods: the work used general (system approach, analysis, synthesis, induction, deduction) and special legal (formal legal, comparative legal) methods.Results: based on the study of the Russian legislation and law enforcement practice, the article analyzes the theoretical and practical issues of bringing to civil liability the heads of enterprises for losses caused to the company as a result of unfair or unreasonable actions committed by them. The paper focuses on the foreign experience in the field under study and reveals the relationship of the Russian terms “good faith” and “reasonableness” with the fiduciary duty of a manager to be loyal to the corporation and to take due care of the owner’s interests.Scientific novelty: the author reveals the theoretical and legal meaning of the concepts of “good faith” and “reasonableness” in corporate relations, which does not coincide with the general civil understanding of these legal categories. The paper substantiates the fundamental importance of determining the legal meaning of the term “interests of a legal entity” forjudicial practice in cases of bringing to justice persons who perform the functions of executive bodies of business entities. The article proposes to set out Part 3 of Article 53 of the Russian Civil Code as follows: “a person, by virtue of the law or any other legal act or constitutive documents of the legal entity, authorized to act on its behalf must act in accordance with the objectives and interests of the legal entity they represent, reasonably and in good faith”. This clarification assumedly will reduce the uncertainty in conflict situations that arise regarding the assessment of the director’s actions compliance with the legal entity interests. This wording clearly shows that, regardless of the current interests of the business entity expressed, for example, by the general meeting of participants, the director should first of all be guided by the goals of the legal entity when making any decision.Practical significance: the main provisions and conclusions of the work can be used in scientific, pedagogical and law enforcement activities when considering issues related to the civil liability of directors in cases where their actions require correlation with the legal entity interests.

Abstract Background Chiropractic emerged in 1895 and was promoted as a viable health care substitute in direct competition with the medical profession. This was an era when there was a belief that one cause and one cure for all disease would be discovered. The chiropractic version was a theory that most diseases were caused by subluxated (slightly displaced) vertebrae interfering with “nerve vibrations” (a supernatural, vital force) and could be cured by adjusting (repositioning) vertebrae, thereby removing the interference with the body’s inherent capacity to heal. DD Palmer, the originator of chiropractic, established chiropractic based on vitalistic principles. Anecdotally, the authors have observed that many chiropractors who overtly claim to be “vitalists” cannot define the term. Therefore, we sought the origins of vitalism and to examine its effects on chiropractic today. Discussion Vitalism arose out of human curiosity around the biggest questions: Where do we come from? What is life? For some, life was derived from an unknown and unknowable vital force. For others, a vital force was a placeholder, a piece of knowledge not yet grasped but attainable. Developments in science have demonstrated there is no longer a need to invoke vitalistic entities as either explanations or hypotheses for biological phenomena. Nevertheless, vitalism remains within chiropractic. In this examination of vitalism within chiropractic we explore the history of vitalism, vitalism within chiropractic and whether a vitalistic ideology is compatible with the legal and ethical requirements for registered health care professionals such as chiropractors. Conclusion Vitalism has had many meanings throughout the centuries of recorded history. Though only vaguely defined by chiropractors, vitalism, as a representation of supernatural force and therefore an untestable hypothesis, sits at the heart of the divisions within chiropractic and acts as an impediment to chiropractic legitimacy, cultural authority and integration into mainstream health care.

Access to reliable health advice can make the difference between life and death. But good advice is hard to come by. Within the confines of the professional-client or doctor-patient relationship, the First Amendment operates in a way that protects good and sanctions bad advice. Outside of this relationship, however, the traditional protections of the First Amendment prohibit content- and viewpoint discrimination. Good and bad advice are treated as equal. A core assumption of First Amendment theory is the autonomy of speakers and listeners. Another assumption, as this Article demonstrates in the health context, is the availability of access to professional advice. This assumption, however, is erroneous because access to health advice in fact is unevenly distributed. This Article argues that assuming access to professional advice creates indefensible inequality. Lack of access to expert advice puts some listeners at much higher risk than others. Current First Amendment doctrine is largely unproblematic for those who can afford expert advice, and makes expert advice much costlier where health provider access is needed to obtain good advice. Those who lack access must place a higher degree of trust in widely-available information because they have no more reliable alternative. In other words, First Amendment doctrine places a higher burden on those who can least afford expert advice and who are most dependent on experts in public discourse. [ABSTRACT FROM AUTHOR]

The proper object of the fiduciary duties of corporate directors and officers is frequently described as the central question in all corporate law. We use the adoption of constituency statutes, which shift the loci of corporate managers' duties from shareholders to a wide range of stakeholders, as a quasi‐natural experiment to determine the actual impact of fiduciary duties. We find that though the adoption of constituency statutes has no significant effect on measures of earnings management, it has a robust effect on firms' effective tax rate, which increases in a range between 0.570% and 1.903%. These results are robust in terms of various measures of the firm's effective tax rate. We provide explanations for why fiduciary duties apparently do not influence manager behaviours in relation to shareholders but do affect their behaviours in relation to the taxing authority. We argue that a change to fiduciary duties does not appear to alter the motivation of managers to maximize shareholder welfare outcomes, but rather it allows them to eschew short‐term strategies that often impair long‐term outcomes. [ABSTRACT FROM AUTHOR]

This article models the duty of care as a response to moral hazard where the principal seeks to induce effort that is costly to the agent and unobservable by the principal. The duty of loyalty, by contrast, is modeled as a response to adverse selection where the principal seeks truthful disclosure of private information held by the agent. This model of corporate loyalty differs importantly with standard adverse selection models, however, in that the principal cannot use available contracting variables as a screening mechanism to ensure honest disclosure and must rely upon the use of an external third-party audit technology, such as the court system. This article extends the model to the issue of corporate compliance and argues that the optimal judicial approach would define the duty to monitor as a subset of due care – and not loyalty – but hold that the usual legal protections provided for due care violations no longer apply. [ABSTRACT FROM AUTHOR]

This Special Issue addresses the concept of sustainability in pension systems from a wide range of perspectives. It examines the central questions raised about sustainable, socially responsible investments and other associated concepts by opening up a comprehensive discussion with an interdisciplinary approach. Normative trends and international cases are analysed in some detail concerning the situation of specific European Member States. Also, the concept of sustainability in European occupational pension schemes is questioned as an efficient vehicle able to assure adequate pension entitlements to all workers to avoid old-age poverty. [ABSTRACT FROM AUTHOR]

Under the framework of the Indian Companies Act 2013, we seek to explore the possibilities of AI systems replacing directors in the board-room. We begin by examining the intractable debate in moral philosophy on the legal personhood of AI. Then, we go on to examine the current judicial and statutory understanding of the fiduciary duties of directors in s 166 of the Companies Act. We find that with the introduction of augmented AI into boardrooms, the existing construct of fiduciary duties is relatively sufficient, but needs some adaptation. Thereafter, we seek to build a case for dilution of the 'natural person' requirement for company directors in s 149 of the Companies Act and use Professors Bainbridge and Henderson's concept of Board Service Providers towards this end. Drawing from Indian law provisions, the paper concludes by arguing that the proposed dilution is not as radical as it initially appears. [ABSTRACT FROM AUTHOR]

Copyright of Studia Iuridica Toruniensia is the property of Nicolaus Copernicus University in Torun, Faculty of Law & Administration and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Nuevo Foro Penal is the property of Universidad EAFIT and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article argues that humanity is locked into a system culminating in the tragedy of the commons (ToC), and swift action is required to course-correct. Undeniably, companies are the single-largest users of natural resources. To that extent, this article puts forward two interrelated proposals on refining directors' duties under Section 166 of the Indian Companies Act 2013 and CSR under Section 135 to help avert the ToC. Part I of this article outlines Hardin's theory of the ToC and examines why corporations fit his definition of the self-interested, rational economic agent. Part II analyses the stakeholder theory embedded in the Indian Companies Act 2013 and highlights its enforcement lacunae. It subsequently proposes a new directorial duty to conduct company business in accordance with principles of sustainable development. Thereafter, Part III proceeds to re-conceptualise the notion of corporate social responsibility (CSR) in Section 135 of the Companies Act 2013 to position CSR as an avenue towards averting the ToC. Part IV concludes. The proposals put forth by this article in Parts II and III do not require paradigm shifts but are consistent with the stakeholder orientation of Indian corporate law, and therefore more easily attainable than most other countries. [ABSTRACT FROM AUTHOR]

Issues surrounding customary land governance reforms remain at the forefront of policy reforms in many African countries because of concern over discriminatory rules of access, exchange, and inheritance, corruption, elite capture, and illegal land occupations, (Arko Adjei, 2009). The shortcomings in customary land governance extend to the unfettered authority of customary land trustees, usually, traditional leaders (chiefs and family heads) who retain autonomous control over land as defined by customary norms and practices. Although trustees play a central role in how the rules of land tenure are applied and made operational, not many analytical studies to date have focused directly on the culture of trusteeship to explain the fiduciary responsibilities associated with the management of community land. Breach of fiduciary duty occurs when a trustee acts in their self-interest, rather than the best interest of the beneficiary community. Unfortunately, as evidence of self-dealing by customary land trustees become more pervasive, legislative action to ensure trustees are fiducially accountable to their communities is urgently needed. This paper draws attention to some of the unique differences between the fiducial duties of trustees under customary tenure and common law. The research hypothesizes that good land governance reforms require customary land trustees to manage land and natural resource assets to achieve the highest livelihood sustaining benefit for their communities.

Features of corporate governance are considered. In modern realities quality of corporate governance is determined by the internal organization (accurate corporate strategy with determination of the purposes and interests of the company). The author offers corporate model which would consider interests not only shareholders, but also other interested participants.

There is a growing body of evidence that supports the view that research participants and the public are concerned about commercial access to health data. Evidence also suggests that attitudes are ameliorated when charity organisations are involved and where research promises to deliver 'public benefit'. To a significant extent, therefore, mechanisms that ensure the public benefit are key to sustaining public and participant support for research access to health data. As a regime founded on the concept of public benefit, charity law provides regulatory and governance mechanisms through which the public benefit of a charity is protected and promoted. This article examines the merits of charity law mechanisms and analyses their significance for governance of commercial access to health data for public benefit, using UK Biobank Ltd, a charitable company limited by guarantee, as an example. The article critically analyses three charity law mechanisms that operate to ensure that an organization providing access to data meets its public benefit requirements: charitable purposes; members' and directors' powers and duties; and accountability via the oversight powers of the Charity Commission and charity proceedings in court. The article concludes that there is potential for the charity model to be the benchmark for governing commercial access to health data for public benefit research, but notes the limitations of the model and recommends the appointment of independent data governance committees to further bolster the charity law framework. [ABSTRACT FROM AUTHOR]

Venture capitalists investing in U.S. startups typically receive preferred stock and extensive control rights. Various explanations for each of these arrangements have been offered. However, scholars have failed to notice that when combined these arrangements result in a highly unusual corporate governance structure: one in which preferred shareholders, not common shareholders, control the board and the firm. The purpose of this Article is threefold: (1) to highlight the unusual governance structure of these VC-backed startups; (2) to show that preferred shareholder control can give rise to potentially large agency costs, and (3) to suggest legal reforms that may help VCs and entrepreneurs reduce these agency costs and improve corporate governance in startups.

Asset management often involves a conflict of interests between investors and fund managers. A main goal of financial regulators is to identify and mitigate this conflict. This article focuses on measures that may foster protection of investors' interests. In an experiment capturing the essential elements of asset management, we find that managers ' accountability does not prevent their opportunistic behavior if not backed by a threat of punishment. Further, investors inefficiently sanction managers if not completely aware of managers ' choices. To effectively protect investors in financial intermediations, financial regulators should ensure both managers ' accountability and a credible sanctioning system., I. INTRODUCTION The recent financial crisis has fostered a widespread debate about the role of financial institutions in the diffusion of highly risky assets among investors. Mass media often indulge [...]

The doctrine of estoppel precludes a person (asserter) from asserting something different or contrary to what is implied by a previous action, conduct or statement of that person or by a previous pertinent judicial determination. While there are various types of estoppel, this article is primarily focused on the application of issue estoppel in relation to certain aspects of the directors’ fiduciary duties in South Africa (s 76 of the Companies Act 71 of 2008 (Companies Act 2008)), in light of the judgment in Royal Sechaba v Coote (366/2013) [2014] ZASCA 85 (30 May 2014) (Royal Sechaba case). Issue estoppel could be defined to include instances where a person is precluded from re-litigating or raising a particular issue in a cause of action that was previously decided by a final judgment of a competent court between the same parties in future cases that have a different cause of action involving such parties. Issue estoppel is closely related to res judicata. For instance,both issue estoppel and res judicata are generally aimed at preventing the re-litigation of the same issues and same cause of actions that were previously decided by a final judgment in the relevant courts between same parties. Nonetheless, it is widely acknowledged that the application these two concepts is quite different in practice. For instance, some jurisdictions such as the United Kingdom (UK) and South Africa employs English law and Roman-Dutch law (common law) principles respectively, to distinguish between issue estoppel and res judicata. Likewise, similar common law principles are employed in the United States of America (USA), Canada and Australia to distinguish res judicata and issue estoppel in various ways. For example, issue estoppel is sometimes referred to as collateral estoppel, issue preclusion, claim preclusion or cause of action estoppel in USA, Canada and Australia. Despite this, it should be noted that a detailed discussion of the different requirements, merits and demerits of issue estoppel and res judicata in various jurisdictions is beyond the scope of this article. Put differently, this article provides a brief discussion of the application of issue estoppel to commercial agreements (certain aspects of the directors’ fiduciary duties) in South Africa in accordance with the Royal Sechaba case. This is done to investigate whether the requirements of issue estoppel were correctly applied and enforced in Royal Sechaba case.

Setting up an institutional body will allow to balance interests between interested participants in the company (first of all between management and shareholders). Introduction of an institutional order is reached by means of an establishment of the accurate game rules fixed in internal documents (the charter, corporate positions). The author tries to design institutional model of behavior of participants with their accurate description competencies and responsibility which will allow to protect from destruction of «shareholder value».