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32. Keay, The Corporate Objective, above n 9, p 232.

33. Attenborough, above n 10, at 16–24.

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126. (1843) 67 ER 189. See also Mozley v Alston (1847) 1 Ph 790, 41 ER 833. See Wedderburn, KW ‘Shareholders’ rights and the rule in Foss v Harbottle (1957) 15 Cambridge L J 194;CrossRefGoogle Scholar Wedderburn, KW ‘Shareholders’ rights and the rule in Foss v Harbottle (continued) (1958) 17 Cambridge L J 93;CrossRefGoogle Scholar Rider, Bak ‘Amiable lunatics and the rule in Foss v Harbottle ’ 37 Cambridge L J 270. For an Anglo-American perspective, seeCrossRefGoogle Scholar Boyle, AJ ‘The minority shareholder in the nineteenth century: a study in Anglo-American legal history’ (1965) 28(3) Mod L Rev 317.CrossRefGoogle Scholar

127. Law Commission, Shareholder Remedies (Law Commission Report No. 246, Cm 3769, London: Stationery Office, 1997).

128. Above n 24.

129. For other arguments that this approach ought to prevail, see eg Wilson Leung, above n 117, at 624 et seq; Mitchell, LE ‘The fairness rights of corporate bondholders’ (1990) 65 NY U L Rev 1165, 1166.Google Scholar

130. Bottomley, above n 30, p 166.

131. Ibid, p 167.

132. Romano, R ‘The shareholder suit: litigation without foundation?’ (1991) 7 J L Econ & Org 55, 56, acknowledging the widely accepted view that ‘[a]ssessing the direct benefits of lawsuit dispositions is not dispositive … because there may be indirect benefits [for investors] not captured in the settlement’. On the disincentives of indirect benefits for shareholders, see egGoogle Scholar Cheffins, BR ‘Reforming the derivative action: the Canadian experience and British prospects’ (1997) 2 Company Fin & Insolv L Rev 227, 257–258. As Cheffins argues, shareholders are unlikely to take the risk of an action since there is no guarantee of securing an indemnity against costs, and any benefit will be for the corporation, with only indirect benefits for the shareholder.Google Scholar

133. Easterbrook, F and Fischel, D The Economic Structure of Corporate Law (Cambridge, MA: Harvard University Press, 1991) p 101.Google Scholar

134. Keay, The Corporate Objective, above n 9, p 253.

135. Re Saul D Harrison Plc [1995] 1 BCLC 14; Re a Company [1986] BCLC 376. Both unfairness and prejudice must be established but neither is defined. As Lord Hoffman has observed, the concept ‘unfairly prejudicial’ is ‘deliberately imprecise language’ that was chosen by Parliament to avoid being too restrictively construed. On the remedy generally, see Payne, J ‘Section 459 and public companies’ (1999) 115 L Q Rev 368;Google Scholar Hannigan, above n 124.

136. There is no statutory definition of what constitutes the ‘affairs’ of a corporation. It has been held to be a phrase with a ‘wide meaning’. See Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692, 704.

137. Kershaw, above n 20, p 680.

138. Ibid, p 689.

139. Ship, A ‘The primacy of expectancy in estoppel remedies: an historical and empirical analysis’ (2008) 46(1) Alberta L Rev 77, 82, submitting that the primary function of the law of estoppel, although historically shaped by a number of sources, is to protect the reasonable expectations of the claimant.Google Scholar

140. I am grateful to the anonymous reviewer of Legal Studies for suggesting this point to me.

141. The doctrine has been involved various areas of legal commerce, such as with the law of contract and consideration; another with trusts and other equitable doctrines; a further liaison that has long existed with bailment and the law of agency; nemo dat conflicts; and a significant link can also be discovered with the tort of misrepresentation.

142. Thompson, MP ‘From representation to expectation: estoppel as a cause of action’ (1983) 42(2) Cambridge L J 257, 257.CrossRefGoogle Scholar

143. Cheshire, GC and Fifoot, Chs ‘Central London Property Trust Ltd. v High Trees House Ltd.’ (1947) 68 L Q Rev 283, 286.Google Scholar See also Simm v Anglo-American Telegraph Company (1879) 5 QBD 188 at 202, per Bramwell LJ, stating that ‘I do not know how the business of life could go on, unless the law recognised [the existence of estoppel]’; Thompson, DK ‘Equitable estoppel of the government’ (1979) 79 Colum L Rev 551, 558, remarking that ‘[a]s an equitable remedy, estoppel is by its nature a flexible device, not subject to ironclad rules that would stultify its effectiveness’;CrossRefGoogle Scholar Cooke, E The Modern Law of Estoppel (Oxford: Oxford University Press, 2000) p 171, suggesting that estoppel is ‘a way of achieving what cannot be achieved if the facts are pleaded, if strict legal rights are adhered to, or if the literal wording of a contract is followed’.CrossRefGoogle Scholar

144. Thompson, above n 142, at 275. It is emphasised that the paper is dealing with non-contractual enforcement options. Obviously, some of those who are variously known as stakeholders, constituencies or persons have contracts with the corporation, and will often be able to take action for breach of the contract or have specific mechanisms in their contracts that permit them to take some form of self-help action; but this action is based on a breach of the specific contract entered into, and might have little to do with the failure of the organisations to adhere to the conduct prescribed by EMV.

145. Kershaw, above n 20, p 615.

146. See Grace v Biagioli [2006] BCC 82 CA. I am grateful to Chris Riley for suggesting that I use this example.

147. Drury, above n 123, at 222.

148. See eg Re a Company [1986] BCLC 376; Re Saul D Harrison & Sons plc [1995] 1 BCLC 14 (CA).

149. [1999] 2 BCLC 1 (HL).

150. On this construct generally, see Riley, C ‘Contracting out of company law: Section 459 of the Companies Act 1985 and the role of the courts’ (1992) 55 Mod L Rev 782;CrossRefGoogle Scholar Goddard, R ‘Enforcing the hypothetical bargain: Sections 459–461 of the Companies Act 1985’ (1999) 20 Company Law 66.Google Scholar

151. Boyle, AJ Minority Shareholders’ Remedies (Cambridge: Cambridge University Press, 2002) p 110.CrossRefGoogle Scholar

152. >Ibid, p 95.

153. Kershaw, above n 20, p 684. See also ibid, p 98, suggesting that Lord Hoffman's observations ‘do not amount to a restatement of the pre-existing body of case law. Earlier decisions are not overruled. It neither extends nor restricts the range of circumstances which may amount to unfair prejudice.’

154. Re Kenyon Swansea Ltd [1987] BCLC 514.

155. Re Aztec (Bsr) plc [1999] BCC 59; Re Blue Arrow plc [1987] BCLC 585; Re Postgate & Denby (Agencies) Ltd [1987] BCLC 8. See also Alcock, A ‘Who controls the fat controller?’ (2001) 16 Denning L J 1, 4. The author observes that it has been made clear by the courts that, except in the most egregious cases, dissatisfied shareholders of publically quoted corporations should not resort to law.Google Scholar

156. Attenborough, above n 10, at 27, submitting that ‘[u]nder EMV the corporation has an obligation to safeguard the non-contractual legitimate interests of constituent groups or individuals that might be affected directly or indirectly by corporate activity’.

157. Goddard, R ‘Taming the unfair prejudice remedy: Sections 459–461 of the Companies Act 1985 in the House of Lords’ (1999) 58(3) Cambridge L J 487, 490. The author poses the question that in respect of the conservative approach to remedies adopted by the courts, in light of Civil Procedure Rules, ‘one might ask whether, in the balance between certainty and discretion, the courts have, in recent times, placed too great an emphasis upon certainty’.Google Scholar

158. Dean, J Directing Public Companies: Company law and the Stakeholder Society (London: Cavendish, 2001) p 158.Google Scholar

159. Boyle, above n 151, p 94.

160. Denning MR in Moorgate Mercantile Co. Ltd. v Twitchings [1976] KB 130. Other authorities may be noted: Pickard v Sears (1837) 6 Ad. & El. 469, per Lord Denman CJ; Freeman v Cooke (1848) 2 Exch. 654 at 663, per Parke B.

161. This point has also been made in respect of the function of estoppel. On this discussion, see generally Cooke, E ‘Estoppel and the protection of expectations’ (1997) 17(2) Legal Stud 258;CrossRefGoogle Scholar Thompson, above n 142.

162. Logsdon, JM and Yuthas, K ‘Corporate social performance, stakeholder orientation and moral development’ (1997) 16 J Bus Ethics 1213, 1202.CrossRefGoogle Scholar

163. Fairfax, L ‘The rhetoric of corporate law: the impact of stakeholder rhetoric on corporate norms’ (2006) 31 J Corp L 675, 690–698.Google Scholar

164. Keay, The Corporate Objective, above n 9, p 258. The author goes on to acknowledge that this wording is reminiscent of the category of persons who were able to apply under s651 of the Companies Act 1985 for an order declaring the dissolution of a corporation to be void.

165. Typically, this might include those investing in corporate equity, a creditor that has an ongoing business relationship with a particular organisation, or a worker who is employed by the entity.

166. For example, a consumer who provides loyalty and custom to an organisation, or an environmental group campaigning on behalf of a particular community, either of which might be affected by wrongful behaviour or actual or proposed mismanagement.

167. Discrete transactions are generally brief and each interaction is unrelated to previous or future transactions. See Bhattacharya, CB, Korschun, D and Sen, S ‘Strengthening stakeholder–company relationships through mutuality beneficial corporate social responsibility initiatives’ (2009) 85 J Bus Ethics 257, 259.CrossRefGoogle Scholar

168. In contrast, relational exchange is characterised as longer in duration, reflecting an ongoing process, and viewed by both parties with respect to previous exchanges and the potential for future exchanges. Ibid, at 260.

169. Argandoña, A ‘The stakeholder theory and the common good’ (1998) 17 J Bus Ethics 1093 CrossRefGoogle Scholar, 1099. The author astutely observes that the duties of a construction company that occasionally builds up a block of flats in the town will be very different from those of an animal feed factory that has its premises actually in the town and works mainly for local customers using local employees and local capital; or those of an automobile spare parts factory operating on an industrial estate on the outskirts of the town and selling to companies based in other countries, using qualified personnel from outside of town.

170. This may mean that the burden of proof of non-contractual expectations is a higher one for those internal and external constituents not residing at the relational exchange end of the continuum. See ibid.

171. This requirement reflects the arguments of Mill on the justification for the use of legal rules. See Mill, above nn 92.

172. Dean, above n 158, p 160; Keay, The Corporate Objective, above n 9, p 269, referring to modern case law to support this proposition. Civil Procedure Rules are also intended to enable judges to seek to control the length of hearings and the evidence that is presented. Cf Parkinson, above n 13, p 94.

173. Mäkelä, H and Näsi, S ‘Social responsibilities of Mncs in downsizing operations’ (2010) 23 AAAJ 149, 150.Google Scholar

174. The corporation is usually more powerful to make its own decisions, despite the wishes or demands of its internal and external constituents. These might include goods and services suppliers, customers, government, employees and the general environment.

175. Argandoña, above n 169, at 1099.

176. This is a legitimacy gap between the corporation's stated policy choices and its actual conduct.

177. This example is based upon Nash, J ‘Consuming interests: water, rum, and Coca-Cola from ritual propitiation to corporate expropriation in highland Chiapas’ (2007) 22(4) Cult'l Anthropology 621.CrossRefGoogle Scholar

178. King, J and Stabinsky, D ‘Biotechnology under globalisation: the corporate expropriation of plant, animal and microbial species’ (1999) 40 Race and Class 73.CrossRefGoogle Scholar

179. Nash, above n 177, at 636. Professor Nash observes that the alliances between corporate and government leaders to secure water rights without equitable redistribution of profits remain ‘the most pernicious effect of privatization and monopolization of this precious resource’.

180. Fairfax, above n 163, at 691–694.

181. Dean, above n 158, p 168, submitting that direct compensation ‘would amount to redistribution from the shareholders (profits available for distribution) to others where the correct balance had not been achieved by directors’.

182. Picciotto, above n 42, p 108.

183. Mitchell, above n 29, at 642.