《PERSPECTIVES ON COMPANY LAW：2》

1. From Rights to Regulation in Corporate LawKent Greenfield1

Introduction1

Capitalism and the role of corporate law1

The private and the public6

Legal metaphor and rights-based theories15

Corporate law as regulation21

2. The Patriarchal Meaning of Contract: Feminist Reflections on the Corporate Governance DebateTerry O'Neill27

Introduction27

"Contract" and the neoclassical economic theory of the modem corporation35

The progressive communitarian theory of the corporation43

Conclusion47

3. Corporate GovernanceJohn Kay and Aubrey Silberston49

Introduction49

The nature of the corporation49

Companies in Britain and the United States51

Who "owns" the company?52

The alternative model56

Corporate personality and corporate behaviour58

The trusteeship model of corporate governance60

Performance in the Anglo-American environment62

Criteria for a model of corporate governance64

4. Corporate Governance — Capitalism’s Fellow TravellerAnne Carver69

Introduction69

What is corporate governance?71

Legal theories of the company77

The western perspective on law and capitalism81

Conclusion87

5. Global Capitalism and the Evolution of American Corporate Governance InstitutionsMarleen A O'Connor89

Introduction89

Part Ⅰ— Flexible specialisation and corporate governance: history,politics, and culture matter91

Part Ⅱ— Ideology and corporate governance institutions101

Part Ⅲ— Strategies to promote the evolution of American corporate governance institutions104

Conclusion107

6. The Global Corporate Board of Directors: A Proposal for ReformLynne L Dallas109

Introduction109

The managerial hegemony theory of the board110

The agency cost theory of the board110

The power coalition theory of the board112

Conflicts monitoring114

The proposal for public corporations115

Some objections117

The global corporation119

Conclusion119

7. Corporate Governance a la Francaise: the Vienot ReportAndre Tunc121

Introduction121

A significant, but limited, agreement with the American and British proposals122

The French resistance125

Conclusion128

8. Corporate Governance: Some Reflections on the South African Law and the German Two-Tier Board SystemJJ Du Plessis131

Introduction131

Corporate governance132

Issues relating to corporate governance in South Africa135

The German two-tier board system in general138

Recent assessment of the two-tier system139

Concluding remarks143

A broader view144

9. Legal Monitoring Systems in Japan: Legal Possibilities and Current PracticeZenicbi Sbisbido149

Introduction149

Norms of balancing interests between shareholders and management150

Indirect monitoring by agents — role of the board of directors152

Direct monitoring by shareholders — governance control over management155

Mandatory nature of corporate law160

Judicial monitoring161

Conclusion162

10. A North American Legal Perspective on Stakeholder Management TheoryEric Wills Orts165

Introduction165

A short intellectual history of the idea of stakeholders167

Stakeholders in three legal models of the firm171

Corporate constituency statutes revisited176

Conclusion179

11. The Duty to Monitor: A Modem View of the Director's Duty of CareSarah Worthington181

Introduction181

Historical development of the director's duty of care: common law or equity?183

The standard of care demanded of directors188

The scope of a director's common law duty to monitor194

To whom is the director's common law duty of care owed?197

Remedies for breach of the director’s duty of care199

Conclusions201

12. Finding the Optimum Balance for the Duty of Care Owed by the Non-Executive DirectorLynden Griggs and John Lowry203

Introduction203

Non-executive directors of public corporations in Australia207

Reforming corporate governance in England: the Cadbury Report212

The traditional approach to the duty of care214

Green shoots of judicial enlightenment — achieving accountability at common law?217

Insolvent trading — an analogy221

The standard of care of the non-executive director in the United States of America227

Conclusion232

13. The Role of Nominee Directors and the Liability of their AppointorsThe Right Honourable Justice EW Thomas235

Introduction235

The reality of nominee directors236

The fundamental conflict in the nominee director's loyalty238

A more realistic approach to the liability of the appointors239

The response of the courts241

Redefining the fiduciary obligation248

The Kuwait Asia Bank decision250

Conclusion255

14. New and Revised American Laws for Unincorporated Firms Create Significant Traps for the UnwaryAllan W Vestal257

Introduction257

Survey of recent developments258

Areas of potential difficulty263

Conclusion285

15. Towards a Commonwealth Model of Companies LawCally Jordan289

Introduction289

Towards codification and core company laws290

Another look at the Companies Act 1948: the view from Hong Kong293

Towards a new model of commonwealth company law295

Conclusion314

Index317