In recent years, shareholder driven climate activism has focused attention on “universal owners and managers” – asset owners and managers with significant stakes in all or nearly all public companies. Advocates push these asset managers to prioritize enhancing overall portfolio value over maximizing individual company value, promoting "systemic stewardship" even when it involves sacrificing individual firm value for the benefit of the overall portfolio. This chapter assesses whether universal owners can and should pursue such a strategy. Our analysis is pessimistic for three main reasons. First, inducing individual portfolio firms to reduce their carbon output to address environmental concerns may trigger a competitive response that will reduce gains for other portfolio companies. Second, current corporate law has a "single firm focus" that conflicts with the potential "multi-firm focus" of large portfolio investors and exposes corporate fiduciaries to potential liability if they sacrifice firm value for the benefit of investors’ other holdings. Third, universal owners, managing diverse portfolios for various clients, face conflicts with fiduciary duties and their multi-client business model when implementing a tradeoff strategy. Given these challenges, systemic stewardship strategies that entail substantial tradeoffs are unlikely to have any significant impact on mitigating climate change.

This chapter explores the intersection of transnational law with contemporary corporate governance laws and principles. Corporate governance, with its complex array of public and private actors, fits naturally within the modern concept of transnational law as a species of law that "can no longer be viewed through a purely national lens." Financial markets today are global and interconnected and events, such as the 2007-2009 global financial crisis and the COVID-19 crisis, exemplify the risk of contagion across those markets. Not only can corporate governance problems transcend national boundaries, so too can their solutions, which often involve regulatory efforts that operate at a transnational level. The chapter explores, from a transnational perspective, the transmission of laws and norms that are designed to constrain directors’ conduct and enhance corporate accountability. It focuses on two key examples of such accountability mechanisms-fiduciary duties and corporate codes. The chapter examines, for example, the global transmission of corporate governance and shareholder stewardship codes. These codes, which are a relatively recent phenomenon, play an important role as “norm creators.” The chapter assesses the transmission of laws and norms against the backdrop of convergence and path dependence theories of corporate governance.

In both common and civil law jurisdictions, fiduciary duties (in the broadest sense) have long been recognized as a key element of the relationships between financial intermediaries and their customers. If one defines fiduciary relationships as including “important social and economic interactions of high trust and confidence that create an implicit dependency and peculiar vulnerability of the beneficiary to the fiduciary” (to borrow a definition suggested by Leonard Rotman),1 a broad range of financial services clearly match the description.2 From a comparative – and, particularly, from a Trans-Atlantic perspective – a useful starting point for analysis can be found in the statutory definitions of financial activities subject to specific prudential and conduct-of-business regulations. Wherever intermediaries hold money or other assets on behalf of clients in connection with transactions carried out on their behalf,3 or agree to provide expert advice with regard to investments4 or the conditions of a loan taken out by a customer,5 the existence of both a high level of trust and a high level of dependency and vulnerability on the part of the client is not just a characteristic feature of the intermediary-customer relationship, but provides the very rationale for public intervention, particularly in the form of conduct-of-business regulation. From a common law perspective, such activities usually will be qualified as agency relationships, which, given the functional nexus between fiduciary law and the law of agency in common law generally,6 helps explain why common law courts have frequently held that financial intermediaries are under fiduciary duties of loyalty and care, as well as duties to disclose certain information, to their customers.7 This doctrinal analysis can be backed up by an economic analysis of the agency problems between the intermediary (acting as “agent” for less knowledgeable investors) and the customer (as a “principal” who, almost by definition, can hardly protect himself against the fallout from information asymmetries and conflicts of interest on the part of the former).8 Even in civil law jurisdictions, where the legal basis for financial services contracts usually consists of, or is derived from, statutory categories of general contract law,9 the concept of fiduciary duties increasingly has come to be accepted as an analytical framework.10 For a number of reasons to be explored in detail later, both the substantive laws pertaining to the provision of financial services and, indeed, their doctrinal interpretation can be seen to have converged in a large number of jurisdictions over the last few decades.

Proponents of stakeholder capitalism claim that it can be implemented simply by modifying the fiduciary duties of directors so that they can take into account the interests of stakeholders rather than being legally limited to considering shareholder value maximization. Such claims fundamentally misunderstand how deeply embedded shareholder value maximization is in corporate law. Only shareholders get to vote, which means directors get to keep their jobs only if they please shareholders. A web of director and officer fiduciary duties inclines them to shareholder value maximization, as does the law of executive compensation.

Following the publication of a U.S. News and World Report article about ICN’s CEO, Panic, entitled “Sex and the CEO” detailing the pharmaceutical company’s expansive cover-up of workplace sexual harassment, a shareholder, White, filed suit against Panic for breaching his fiduciary duty by using corporate funds to resolve sexual harassment claims. The feminist rewrite finds that Panic and ICN’s board failed to exercise valid business judgment and did breach their fiduciary duty. The lack of diversity on ICN’s all-male boardroom is noted as a factor that led to the acceptance of Panic’s workplace sexual harassment and the allowance of corporate funds to actively conceal it. The examination refuses to sanitize the legal analysis to only rules and processes and instead chooses to analyze the case for its full revealing facts. The rewritten opinion views ICN’s board’s repeated decision to use corporate funds to settle sexual harassment cases as a proof of the fact that the board did in fact have actual knowledge of the persistent sexual harassment of its employees by Panic. Using precedent available at the time of White v. Panic, the feminist rewrite is able to come to the conclusion, which has become more common twenty years later in the post-#MeToo world.

This Chapter outlines the broader Brazilian stewardship framework by assessing both the public and private rules applicable to investment and pension funds considering their fiduciary duties. It analyses the background and rules of the first and only Brazilian Stewardship Code, launched in 2016 by AMEC. Note that the Brazilian companies have historically concentrated ownership amongst a few companies with managerial control and institutional investors are usually minority shareholders, with a limited influence on the investee companies’ corporate governance. The chapter argues that despite the existence of various stewardship initiatives, there is no sound effort by public and private regulators to monitor and to enforce these rules and principles. There is also no clear endeavour from the public and private regulators to align their norms in relation to stewardship related duties.

Stewardship codes comprise a small but important element of the institutional framework supporting a transition towards a more sustainable financial system. By encouraging investors to incorporate environmental, social and governance factors into their investment decisions, these codes can encourage longer-term financial horizons. This chapter explores both the potential of and the challenges for stewardship codes as a tool for improving the sustainability of finance through analysis of twenty-five stewardship codes. It concludes that, by supporting a progressive interpretation of the legal duties of pension fund trustees and company directors, stewardship codes can help harness the financial clout of large investors in steering business towards a more sustainable future. They have the potential to infiltrate the complex modern investment chain, extending the influence of those who think to the long term. Although each code is limited in its enforceability, together stewardship codes have an important role to play within a wider network of mutually reinforcing regulatory instruments pursuing the common goal of sustainable development and securing transparency and accountability.

This chapter considers the institutional implications of the multi-factoral model in national law. Given its involving an ineliminable need for judgment, this chapter argues for an approach to law reform that focuses on enhancing the quality of decision-making within the corporation surrounding its fundamental rights obligations. Doing so, I argue requires focusing much attention on reforms to corporate law that can help ‘constitutionalise’ fundamental rights within the basic legal structure of the corporation itself. I propose a series of law reforms that include expanding the diversity of the directors; developing a new fiduciary duty specifically relating to fundamental rights; enhancing disclosure requirements; developing a new enforcement action allowing directors to be sued in their personal capacity for rights violations; creating regulatory fines and financial penalties for rights violations; implementing an enhanced framework for shareholder obligations; rejecting the business judgment rule where fundamental rights are involved; and the utilisation of dialogical remedies by courts.

The stockholder/stakeholder dilemma has occupied corporate leaders and corporate lawyers for over a century. In addition to the question of whose interests should managers prioritize in discharging their fiduciary duties, the question of how those interests could or should be balanced has proven equally difficult. To address the latter challenge, this paper advances a doctrinal innovation that is both new and time-honored—to implement a duty of impartiality with regard to directors’ discretion over stakeholder interests. A sub-component of trustees’ duty of loyalty, the duty of impartiality regulates settings in which several beneficiaries have conflicting interests without dictating substantive outcomes, especially not equal treatment. This paper proposes an analogous process-oriented impartiality duty for directors to consider the interests of relevant stakeholders. Stakeholder impartiality is a lean duty whose main advantage lies in its being workable. It can be implemented in legal systems that have different positions on the objectives of the corporation, from Canada’s and India’s open-ended stakeholderist approaches to Delaware’s staunch shareholderism.

The regulation of mutual funds in the United States arguably contains the world’s most extensive system of fiduciary protection, buttressed by elaborate liability rules and a host of procedural protections and mandatory disclosure requirements designed to facilitate investor protection and choice. The intensity of this regulatory structure is a subject of perennial debate, as officials and analysts attempt to balance the cost of compliance and oversight against benefits to investors. Government officials have made numerous accommodations to ameliorate the system’s costs and facilitate industry innovations. But, the burdens of this enhanced system of fiduciary protections for mutual funds remain significant and have encouraged industry participants to evade these legal requirements in a number of ways, such as the creation of alternative vehicles for collective investments and the imbedding of regulated mutual funds into other legal structures that escape the full application of the enhanced system of fiduciary protections for mutual funds. This chapter suggests areas where aspects of mutual fund regulation might appropriately be extended to functionally similar investment vehicles.

This introduction traces aspects of the history of fiduciary duties in business law and scholarship. Despite fiduciary law’s centrality to business law, the chapter describes how the contractarian revolution of the 1980s contributed to the marginalization of fiduciary duties, both in theory and doctrine. However, subsequent developments, both in case law and in scholarship, have questioned some of the core assumptions of the early wave of contractarian theory. The introduction outlines three critiques that scholars have levied against the early contractarians’ view of fiduciary duties, and connects these critiques to the eighteen chapters in the volume. The introduction also provides a roadmap of our contributors’ arguments.

In this Chapter, we survey the common law’s adventures with creditor protection over the course of American history with a special focus on Delaware. We examine the evolution of the equitable doctrines that judges have used to answer a question that arises time and again: What help, if any, should the common law be to creditors that suffer losses due to the purported carelessness or disloyalty of corporate directors and officers? Judges have struggled to answer that question, first deploying Judge Story’s “trust fund doctrine” and then molding fiduciary duty law to fashion a remedy for creditors. This reached a high point in the early 2000s as judges flirted with recognizing a “deepening insolvency.” Delaware’s judges effectively abandoned this project in a series of important decisions around the time of the financial crisis. In this “third generation,” judges told creditors to look to other areas of law to protect themselves from opportunistic misconduct, such as bankruptcy law, fraudulent transfer law, and their loan contracts. The question has arisen time and again and today’s “settled” law is unlikely to represent the end of history in creditor protection.

This chapter, along with Chapters 5 to 6, examines the legal duties that constrain accumulation once a charity has been created. Controller duties (e.g. directors’ duties and trustee duties) are the focus of this chapter. Clearly, duties of loyalty, good faith and of care and diligence can potentially play a restraining role in relation to agency costs, the risk of which can be heightened by accumulation. Further, controller duties also raise the possibility of regulating the retention and distribution of charity assets by controllers, thus affecting the intergenerational distribution of benefits. The chapter provides an overview of the controller duties arising from each of the main legal forms adopted by charities and analyzes the impact of those duties on accumulation. Particular attention is paid to duties arising on the exercise of discretionary powers, such as the duties to act upon genuine consideration and to act impartially. Examples are provided primarily from Australia, the United Kingdom and the United States.

As a form of artificial intelligence in the financial markets, robo-advisory has grown rapidly to provide automated investment services along with human advisors. Automated investment advice firms have brought significant benefits by improving the delivery of high-quality, less-biased financial advice. However, robo-advisors also bring risks due to the high dependence on technology. In the area of robo-advisory services, China has several advantages, such as strong consumer demand and a rapidly rising middle class, as well as disadvantages such as regulatory risks and low-level service quality. The over-demanding and inconsistent entry threshold, insufficient asset management powers of robo-advisors, weak fiduciary duties and inadequate information disclosure duties have hindered the development of robo-advisory services in China. By analysing the overseas experiences and local conditions, this chapter makes relevant suggestions for further improvement of the Chinese regulatory regime.

This chapter discusses venture capital (VC) fundraising, the very first stage of the VC life cycle, in the Chinese VC market. The general practice of VC fundraising has been discussed in fair detail in the existing literature: investors and experienced professionals partake in an investment venture, with the former contributing capital and the latter contributing expertise. In other words, capital that is pooled from investors is entrusted to specialised professionals for investment into specific portfolio companies. This fundraising process creates a number of legal problems, which have been analysed by academics. Most notable among these issues are the potentially divergent interests between investors and professionals and the best methods by which to address resulting conflicts. In developed VC markets such as the United States (US), several legal solutions are available to address this problem, including the use of specialised investment vehicles, such as the limited partnership, which demarcates distinct rights and responsibilities of investors (as limited partners (LPs)) and managers (as general partners (GPs)) in order to manage the investor–manager relationship and the imposition of fiduciary duties on managers.

There has been a proliferation of stewardship codes around the world. There are eighteen jurisdictions in different parts of the world that have adopted stewardship codes in one form or another.1 The four common law jurisdictions in Asia are no exceptions. The Malaysian Code for Institutional Investors (MCII) was issued in 2014, the Hong Kong Principles of Responsible Ownership (HKPRO) in 2016 and the Singapore Stewardship Principles for Responsible Investors (SSP) in 2016.

Political (Dis)Trust and Fiduciary Government analyzes the relationship between two key ideas in modern political thought: political trust and fiduciary government. The chapter begins with fiduciary government. Miller distinguishes ‘thick’ from ‘thin’ variants on the idea of fiduciary government. Thick variants place substantial normative weight on the idea, claiming, for example, that it solves the problem of political authority and provides an independent normative basis for the recognition of specific legal rights. Thin variants make much more modest claims. Miller’s own thin account, deployed here, suggests that fiduciary government articulates conditions under which the conduct of government can be understood as truly representative. By comparison with this thin conception of fiduciary government, an understanding of political trust as a particularized (or focused) and objective (or manifest) form of trust shown (or withheld) by citizens in public officials does distinct work. Briefly: it illuminates understanding of the political conditions and activity on which fiduciary government depends. That said, Miller also notes that ideals of fiduciary government and of political trust, where instantiated, dovetail: demands of fiduciary government enable public officials to prove trustworthy in ways that promote political trust, while also creating space for constructive forms of political distrust.