The focus of corporate law has been on decisions that advance the interests of shareholders. Yet, corporations often have a serious impact on fundamental rights of many other stakeholders. The question thus arises: how can corporate law be reformed to take account of the obligations corporations have in relation to fundamental rights? The main argument will be presented by Professor David Bilchitz. Professor John Armour and Professor Peter Muchlinski will respond.
In this seminar, I will examine firstly from a theoretical perspective what the goal of reforming corporate law is in this area. In so doing, I shall seek to determine whether the role of law is to command compliance with set rules or should be conceptualized in a differing manner that seeks to internalize a commitment to fundamental rights within the corporate structure itself. I turn to consider a range of specific reforms that are required to enhance corporate decision-making surrounding fundamental rights. In doing so, I consider four sets of issues. First, I consider the important issue of who the directors. Secondly, I consider what their duties are. Thirdly, I consider the forms of accountability of decision-makers and, particularly directors, for decisions that are taken. Lastly, I consider to whom directors are accountable. Some of the issues I raise have already been explored in corporate law in relation to the financial affairs of the company and their effect on shareholders. I will engage with the potential for extending the scope of options to enhance accountability for decision-making surrounding the fundamental rights to other stakeholders.
David Bilchitz is a Professor of Fundamental Rights and Constitutional Law in the Faculty of Law at the University of Johannesburg and Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). He is also a Professor of Law at the University of Reading. He is a Vice-President of the the International Association of Constitutional Law (IACL). Recently, he was elected a Member of the Academy of Sciences of South Africa.
One of his areas of expertise has been in the field of Business and Human Rights. In 2017, he was awarded a Von Humboldt Foundation Fellowship and worked on a book which he is currently completing in this area. He also co-edited two books in the field (with Prof Surya Deva) which are titled ‘Human Rights Obligations for Business: Beyond the Corporate Responsibility to Respect?’ (Cambridge University Press, 2013) and ‘Building a Business and Human Rights Treaty: Context and Contours’ (Cambridge University Press, 2017) and has written many journal articles and book chapters. He has also supervised reports in this field commissioned by the International Commission of Jurists and the Special Representative of the Secretary-General’s mandate. He has made submissions for reform of corporate law to the South African parliament.
John Armour is Professor of Law and Finance at Oxford University and a Fellow of the British Academy and the European Corporate Governance Institute. He was previously a member of the Faculty of Law and the interdisciplinary Centre for Business Research at the University of Cambridge. He studied law (MA, BCL) at the University of Oxford and then at Yale Law School (LLM). He has held visiting posts at various institutions including the University of Auckland, the University of Chicago, Columbia Law School, the University of Frankfurt, the Max Planck Institute for Comparative Private Law in Hamburg, the University of Pennsylvania Law School and the University of Sydney. He is a member of the American Law Institute and an Academic Member of the Chancery Bar Association. Armour has published widely in the fields of company law, financial regulation, and corporate insolvency. His main research interest lies in the integration of legal and economic analysis, with particular emphasis on the impact on the real economy of changes in company law, corporate insolvency law and financial regulation. He serves as an Executive Editor of the Journal of Corporate Law Studies and the Journal of Law, Finance and Accounting, and has been involved in policy-related projects commissioned by the UK’s Department of Trade and Industry (now BEIS), Financial Services Authority (now FCA) and Insolvency Service, the Commonwealth Secretariat, and the World Bank. He served as a member of the European Commission’s Informal Company Law Expert Group from 2014-19.
Peter Muchlinski is Emeritus Professor of International Commercial Law at the School of Law, the School of Oriental and African Studies, University of London. He is the author of Multinational Enterprises and the Law (Oxford University Press, 2nd ed, 2007, third edition forthcoming 2021). He specialises in the regulation of multinational enterprises, international investment law and business and human rights.