Dissertations / Theses on the topic 'Corporate governance – Law and legislation – China'

The essence of running an enterprise which is defined as a system by which the companies are lead and compared is generally set in priority terms. For some, they favour in the first instance to secure the economic efficiency then to scope with the social problems at a later stage---'Shareholder model'. Others are inclined to consider that the priority lies into an environmental, sharing and caring society etc.---'Stakeholder model'.
Where the evolution of the corporate governance is going to lead to? And how does it affect the directors' responsibility?
After a thorough study of its European evolution in particular in France and England, we figure out that raising the black flag of the stakeholder theory will end up into an ideology completely false dislodging the concept of the natural reality around us. On the other side, claiming the predominance of the sole shareholder system will become a dangerous apprehension opposing the objective of this theory: In our perspective we see that the ultimate global wealth of the enterprise in the long run is closely linked to the consideration and the deep satisfaction of the needs and the interests of the different parties joining the enterprise.

The thesis is about the re-incorporation of women, on feminist terms, in corporate law and structure. Working from the idea of feminism as a theory about exclusion, the thesis endeavours to include women's voices in how the dominant discourse shapes corporations and the securities markets. Moreover, it attempts to capture the feminist continuum and use it as a critique of the existence of the separate entity of the corporation and limited liability. The thesis also joins the corporate governance debate on feminist terms, reshaping its scope to include feminist aspirations. The market for securities and insider trading are also subject to a feminist analysis and the problems in policing and preventing insider trading are rethought through a feminist lens.

The thesis addresses the paradigm shift of education governance in China through a study of the policymaking process of two legislation episodes in China: the 1986 Compulsory Education Law and the 2006 Compulsory Education Law Amendment. The research started with two broad initial research questions: how was the Compulsory Education Law made and amended? Why was the Law made and amended? Using ethnographic interviews and documentary analysis as the main research methods, more specific questions on the 1986 and 2006 legislation were later delved into as the research evolved in depth: What were the driving forces behind the 1986 and 2006 legislation? What values of compulsory education were assumed in the central decisions of the 1986 and 2006 legislation? What was the institutional rationale underpinning the 1986 and 2006 legislation? The data was collected through ethnographic interview with some forty informants involved in the policymaking process. The research findings were analyzed and presented on three levels. First, the findings were presented on the basis of narration analysis. Second, the policymaking process of the legislation was analyzed from three paradigms: agenda-setting, decision-making and organizational behavior. Finally, by examining the results of the previous stages of analysis and further comparing the two cases, the research arrived at a theoretical framework for education governance that embraces three essential elements: political ideology, perceived value of education, and institutional rationale. The analysis of the two legislation episodes identified that the political ideology, which shifted from efficiency-oriented economic well-being to equity-oriented social cohesion, steered the agenda-setting of the compulsory education legislation. The perceived value of education reflects the role that education plays in development, changing from economic value to social value. The institutional rationale essentially determines strategies by which compulsory education materializes, with a variance from governing by goal and mobilization to governing by accountability and regulation. In conclusion, education governance in China witnessed a paradigm shift from “economic instrumentalism” toward “social rationalism” over the twenty-year period from the mid-1980s to 2006.
published_or_final_version
Education
Doctoral
Doctor of Philosophy

Corporate governance of Thailand has been developed and reformed, particularly after 1997 Asian financial crisis. However, problems regarding director’s responsibilities are still entrenched in company law and corporate practices. The challenges of Thai corporate governance on director’s responsibilities are found in the areas of director’s accountability and minority shareholders protection. Legal provisions on director’s fiduciary duties and director’s duty of care and skill are unable to regulate director’s misbehaviors. Directors are not fully aware of their proper responsibilities to the company. They tend to act for their own interest or interest of their group, the controlling shareholders. In addition, legal enforcement on director’s responsibilities is not effective in practice. Shareholders litigation or other actions against directors who are in breach of their duties is rare, though there is derivative action provided as remedy for minority shareholders. In finding solutions for those problems, all relevant aspects should be brought into consideration. Corporate governance on director’s responsibilities is related to law, business and ethics. Director’s responsibilities are matters concerning human conducts, actions, behaviors as well as practices. They are related to ethics of each company director and ethics of the board members as a whole. In addition to legal and business aspects, ethical aspect should also be considered in the reform of corporate governance on director’s responsibilities of Thailand. This thesis is the study of Thai corporate governance on director’s responsibilities and ethics in order to find appropriate ethical theory where good corporate governance principles will be built on. Among relevant ethical theories i.e. utilitarianism, Kantian ethics, virtue ethics and contractualism, virtue ethics of Aristotle is the most appropriate ethical theory to be applied to corporate governance on director’s responsibilities of Thailand. It is suitable for the nature of corporate governance on director’s responsibilities, the conditions underlying its problems, and the understanding and practices of people in Thai society. Virtues and means of virtue ethics should be applied as complements to fiduciary principles for enhancing director’s accountability. The doctrine of mean of virtue ethics should be applied as complement to derivative action for enforceability and effectiveness of minority shareholders protection. In this regard, some related regulations and codes of best practices will be prescribed by adopting appropriate virtues or means, and the relevant regulators i.e. the Securities and Exchange Commission (the SEC) and the Stock Exchange of Thailand (the SET) will be given authority to interpret and apply such regulations and codes of best practices on a case by case basis.
published_or_final_version
Law
Master
Doctor of Legal Studies

This thesis examines the ways in which the role of the National People’s Congress (NPC) has evolved within the political system of the People’s Republic of China (PRC), as well as the implications for the formulation and deliberation of educational policy. This research reported herein compared the revision of the PRC’s Compulsory Education Law, which the National People’s Congress’ Standing Committee (NPCSC) adopted in 2006, with the Compulsory Education Law adopted in 1986, with special reference to the education finance issues underlying the country’s compulsory education provisions. Underlying this research is an attempt to identify and understand new governance emerging in China. The findings of a careful study of documents and data obtained from in-depth interviews suggest that the NPC played a qualitatively different role in the 2006 revision of the Compulsory Education Law than in the original. First, in this revision, where necessary, the NPCSC and its working committees provided a legal platform that was used for negotiation, bargaining, and compromise among ministries of the Central People’s Government and local people’s governments. Second, the NPC was used as a way to hold the latter accountable to the former on this particular issue. Third, through the platform provided by the NPCSC and its working committees, the NPC became a key actor in deliberating on, formulating, and monitoring the finance-related policies in the 2006 revision. In the aggregate, as this thesis argues, this constitutes a fundamentally different legal approach to formulating these policies. The emphasis is now placed on legally and mutually binding agreements between the Central and local people’s governments, and hence on the implementability (可操作性) of finance-related policies based on a clear division of responsibility among the parties concerned. This change in legal approach would render a different model of policy implementation and monitoring, with a relative tightening of control by both the State Council (SC) and the NPC over local administrations’ power to organize and administer China’s educational system. Based on the findings presented in Chapters five and six, this research refined a new institutional approach to depicting policy-making in contemporary China. As the Chinese polity becomes more complex, the dynamic relationship between the NPC and the SC must be redefined in light of changes in the distribution of decision-making power between the two. It is argued in this thesis that the NPC’s substantial involvement in the relationship between the Central and local people’s governments not only indicates changes in the dynamics of the institutional relationship among the central legislature and the Central and local people’s governments, but also reflects changes in the modality of governance adopted by the Chinese Communist Party. Finally, this thesis argues that regulation-oriented concept of governance, rather than a general concept of governance initially developed in the West, may offer a better understanding of new governance emerging in China.
published_or_final_version
Education
Doctoral
Doctor of Philosophy

Foreign direct investment (FDI) was unknown to Chinese people before the opening policy in 1979, but since then China's economy has been surging ahead in the past twenty eight years. As one aspect of the FDI policy, I focused on the corporate taxation field to be my research interest, and the topic of my thesis. In the thesis, the reader will learn how FDI developed in China and degree of FDI development. Also, I provide the reader with China's tax system and policy-oriented in as much detail as possible, most of which is the tax incentive policy towards the FDI in China. However, the policies and incentives raise some issues. As the result of offering FDI tax preference, Chinese government tax revenue as a percentage of GDP has been declining steadily. Problems such as tax avoidance and evasion, and local "fake" FDI entities are getting serious. The new Corporate Income Tax Law of the People's Republic of China (CIT Law) was passed by the PRC National People's Congress on March 16 2007 and will take effect on January 2008. When China entered into the World Trade Organization (WTO) in 2001, compliance with the general rules required China improve its tax system as soon as possible. The CIT law section in the thesis includes the policy-changing behind the legislation and expected influence on the FDI in China in the future. As a result of the changes to be brought about by the CIT Law, foreign and domestic business in China must adapt to the new tax regime, and I offer some recommendations in that regard.
Law, Peter A. Allard School of
Graduate

Thesis (LLM. (Labour Law)) --University of Limpopo, 2014
This mini-dissertation discusses the application of the principles of corporate governance in the Musina Local Municipality. It further discusses the legislative framework and the institutions of government which are responsible for the effective implementation of corporate governance in the local government sphere. It further discusses the challenges faced by Musina Local Municipality which are ranging from fraud and corruption and poor financial management and this result in poor service delivery.

The purpose of this thesis is to study the role of corporate social responsibility (hereinafter ‘CSR’) in corporate governance in the context of employment. This is done through a comparative study of the United Kingdom (hereinafter ‘UK’) and China in which it is determined whether Chinese companies can adopt UK companies’ CSR practices in employment. The thesis begins with an overview of the theory of corporate governance and the necessity of CSR in corporate governance. The different models and principles of corporate governance and CSR, and how the main corporate organs operate in corporate governance and apply CSR in decision-making to meet stakeholders’ needs are introduced. The study then demonstrates the rationale behind the emergence of CSR, the legal impact of CSR on stakeholders and the global application of CSR initiatives, especially the techniques and mechanisms adopted in the UK and China. The research specifically presents CSR practices in employment in the UK and China against a theoretical background. This comparative study is mainly dependent on companies’ information disclosure, since all data were collected from their official CSR reports. The quality of the information disclosure is assured through effective monitoring as stated in the various reports. The implication of the comparative research on the information disclosure collected demonstrates the difference in CSR implementation in employment between UK and Chinese companies. The thesis analyses the possibility of adopting UK CSR practice in employment in Chinese companies in terms of the economic, social and political barriers to, and current situation of, CSR in China. As China has opened up the global market, overseas companies have invested in the Chinese market. This comparative study of CSR implementation in the context of employment in the UK and China, and the analysis of the current status of Chinese CSR practices also provide foreign enterprises experience to relate their CSR policies in corporate governance to Chinese context.

The protection of minority shareholders is one of the important topics in company law. The two major oppression of minority shareholders are from the management and the majority shareholders. In this thesis, I seek to study the two oppression and the minority protection under the company law in Hong Kong and China. This thesis discusses: (i) Whether the Hong Kong common law system provides better protection to minority shareholders than is found in the Chinese civil law system? (ii) Whether the high degree of concentrated corporate ownership leads to the poor protection of minority shareholders in Hong Kong and China? (iii) What are the transplantation effects of foreign company laws on the protection of minority shareholders in Hong Kong and China? (iv) Whether the existing legal remedies to minority shareholders in Hong Kong and China are adequate? and (v) What are the problems of minority shareholders protection in Hong Kong and China? A comparative study of corporate governance and the protection of minority shareholders in Hong Kong and China is to identify the similarities and differences in the two systems for the purposes of legal reform. This thesis argues that mere adoption of Hong Kong common law system according to the legal origin theory could not improve corporate governance and minority shareholders protection in China; Chinese corporate governance and minority shareholders protection reform must include both legislative and structural aspects and these aspects are shaped by the initial paths according to the path dependence theory. This thesis argues that the high concentration of corporate ownership does not necessarily lead to poor legal protection of shareholders in Hong Kong, and the weak protection of minority shareholders in China is not due to its civil law origin but its structures relating to the rule of law principle. This thesis examines the theoretical debates between the legal origin theory and the path dependence theory and applies them to Hong Kong and China. This thesis contends that the basic company law has already achieved a high degree of uniformity in Hong Kong and China and the base of divergence between Hong Kong and China is in the structural and institutional differences. This thesis argues that the success of legal transplantation and minority protection in Hong Kong is dependent upon its initial structures which have been locked-in to the current structures. This thesis concludes that the issues of minority shareholders protection in China are in its socialist market economy, state intervening policy, public ownership, relation-based tradition, rule by law culture, corruption practices, dominant role of the CCP and non-independent judiciary; and the Chinese minority protection reform, in a broader sense, involves not only the legislative issue but also the structural issues which relate to the rule of law principle. This thesis proposes that the transplantation of foreign company law will not necessarily improve the protection of minority shareholders and hence the corporate governance in China. This thesis also confirms that direct transplantation of foreign law is not always suitable for countries with less developed structures. These findings are also relevant to other emerging economies and developing countries in understanding the limitations on the use of foreign law to improve corporate governance and the protection of minority shareholders.

Thesis (MBA)--Stellenbosch University, 2014.
ENGLISH ABSTRACT: Newspaper headlines have continued to shock investors and society by exposing corporate scandals and by highlighting the overall decline in moral fibre of the modern employer and/or employee, locally and internationally. The King III Report on Governance aims to improve organisations’ sustainability by providing principles to enable sound decision-making for any organisation, irrespective of its size and/or structure. The objective of this research report was to investigate the challenges experienced with the application of these principles, with a specific focus on the guidance provided to enable the independence of directors. Firstly, this investigation aimed to establish whether there was a belief that the application of these principles would necessarily lead to sustainability; and secondly, whether the application of these principles were practically possible for all organisations, irrespective of their size and/or structure. The investigation was conducted by combining the results from a literature review on corporate governance with a specific focus on director independence and a survey conducted with twelve individuals involved in different capacities at board level. Based on the information obtained from the literature review and the results obtained from the questionnaire, overwhelming support exists that indicates that the application of the King III principles would contribute to improve the sustainability of an organisation. However, it was discovered that it would not necessarily be feasible for all companies, of any size and/or structure, to effectively apply these principles. Various recommendations were made to address the challenges identified for the effective application of the King III principles relating to the independence of directors.

Consumer protection policy measures can enable consumer behaviour shifts in favour of more sustainable choices. Whilst government is responsible for developing consumer protection policy in a particular country, business is central in the implementation of such policy. In South Africa, there is disassociation in consumer protection policy and environmental policy where consumer protection policy is the responsibility of the Department of Trade and Industry, whilst sustainability is located under the Department of Environmental Affairs. As a result, South African consumer protection policy does not holistically incorporate sustainability. A six-step qualitative research process was adopted to develop a framework to implement sustainability into consumer protection policies. First, a theoretical framework for incorporating sustainability into consumer protection policy was developed to structure the qualitative research. Four dimensions for incorporating sustainability into consumer protection were then identified. Qualitative data was collected using an open-ended questionnaire and also content analysis of existing data. Two sets of experts further reviewed and critiqued the proposed framework. The results of the qualitative enquiry, in particular, showed that for all the countries examined, some at least had sustainability consideration elements in their policies, but this was evident to a lesser extent in African countries, particularly those with less-developed economies. On the other hand, policy mechanisms that promoted sustainability were more evident in the policies and laws of developed countries. In the case of most African countries, basic needs were foregrounded as the primary concerns of consumers, ahead of sustainability concerns. Further, poverty limited consumer choices, particularly if more sustainably produced and eco-efficient goods came at a higher price. The research also underscored the importance and centrality of consumer education and stakeholder engagement for achieving sustainability policy intentions. It further confirmed that the basic needs of poor consumers in South Africa, and the impact of poverty on sustainability policy intentions must underpin the proposed framework. Factors that created an enabling environment for the implementation of the framework were identified as policy harmonisation within government policy domains, joined-up government, good corporate governance and shared value that considered the needs of future generations and consumer education. These factors would create an enabling environment for policy implementation. Consumer policy could play a key role in the choices that consumers make and, if well-designed and implemented, could direct consumer spending in support of the goal of sustainability and sustainable consumption. The proposed framework provides a foundation on which to futher refine and develop consumer protection policy that incorporates the well-being of consumers and social justice. Using consumer spending to drive sustainability requires a deliberate intention on the part of policy makers to move away from the more conventional framing of consumer policy, which has tended to focus on the economic interests of consumers, such as price, quality, choice and redress. However, modern business is shifting towards a more holistic conceptualisation of sustainability, as a value that needs to be deliberately and consciously built into the design and essence of a business. Doing so is not only good corporate citizenship, but offers a competitive advantage, which could drive product demand and attract consumers.

This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.

China's different economic environment, government infrastructure, and legal system might cause different management buyout procedures and results from management buyout procedures in the United States. Management buyout was originally created to increase efficiency and reduce agency cost in the United States in the 1960s; but management buyout in China is merely a tool to provide incentive programs for current management teams and reduce state-owned corporate shares.

This dissertation examines three distinctive issues that concern the regulators and policy makers in the development of financial markets. It contains three stand-alone research projects within the context of law, finance and economic growth. Chapter 2 examines the dynamic relationship between banks and economic growth from the points of view of market efficiency and asset pricing theory. Publicly traded banks are broadly representative of a country???s banking sector, so that banking industry stock prices will broadly reflect the performance of a country???s banking sector. Because previous research has established that the institutional framework, as well as the aggregate size, of the banking sector can significantly affect economic growth, this chapter investigates whether the stock returns on a country???s banking sector contain information about future economic growth, and whether the specific country and institutional characteristics that affect the functioning of the banking system and market efficiency also influence this relationship. Using the data from 18 developed and 18 emerging markets, the chapter finds a significant and positive relationship between bank excess return and future economic growth in both the time-series and panel analyses. The chapter also finds that this positive relationship is significantly strengthened by the enforcement of insider trading law, by banking crises, by bank disclosure regulations and financial development, but is weakened by government ownership of banks. Chapter 3 investigates the role of bank idiosyncratic volatility in economic growth and systemic banking crises. Using the same dataset from Chapter 2, this chapter finds an ambiguous relationship between bank volatility and economic growth in the time-series studies, which suggests that the effect of bank volatility on economic growth is more country-specific. In the panel analyses, the chapter finds a negative but very weak relationship between bank volatility and future economic growth. This negative relationship is magnified by banking crises and bank disclosure standards, but is alleviated by the government ownership of banks, the enforcement of insider trading law and financial development. The chapter goes further to examine whether bank volatility leads to the occurrence of systemic banking crises, and finds that the marginal effect of bank volatility on the probability of banking crises is very weak for the sample of all markets, and this result is mainly driven by the data from the emerging markets. However, bank volatility is a significant predictor of banking crises even after being controlled for macroeconomic indicators, which implies that market forces are more powerful in promoting the soundness of the banking system in developed markets. We also find that those macroeconomic and banking risk management indicators have different impacts on the probability of banking crises for the emerging and developed markets. Therefore, caution needs to be taken in interpreting the cross-country results of the studies on banking crises. Chapter 4 studies the corporate governance issues in China, a significant developing country that has been neglected by the current law and finance literature. Incorporated with the legal environment and ownership structure of China???s listed companies, the chapter develops a simple game model to study a neglected aspect of current corporate governance literature: the expropriation arising from the mixture of weak investor protection, ownership concentration coexisting with ownership dispersion, and the absence of a controlling shareholder. The last two chapters find that government ownership undermines the positive link between bank excess return and economic growth, but alleviates the negative impact of bank volatility on growth as well. This chapter shows that government ownership is also a two-edged sword in corporate governance in China: it leads to a double-agency problem; however, the strong legal protection of State assets also increases the cost of expropriation. Using the data from 1996 to 2003, the chapter finds the empirical evidence consistent with the model. By analysing the puzzles in China???s stock market, the chapter suggests that improving the legal protection of investors is the key issue in the future development of the financial market.

The purpose of this dissertation is to investigate the effect of U.S. firms’ geographic location, whether urban or rural, on their corporate disclosure and governance practices. An “urban” firm is one that is headquartered in a large metropolitan area; whereas, a “rural” firm is one that is headquartered some distance from any metropolitan area. Specifically, the study examines whether there are different stock market reactions to urban and rural firms around key event dates relative to the enactment of the Sarbanes-Oxley Act (SOX) on July 30, 2002. Also, the readability and linguistic style in the Management Discussion and Analysis (MD&A) section of public company’s annual reports (Form 10-K) to the Securities and Exchange Commission (SEC) are investigated to determine whether urban and rural firms communicate information differently to investors.

This dissertation is composed of three essays related to Financial Architecture.

The first essay, analysed in the first chapter of the thesis, contributes to the literature on Efficient Market Hypothesis and in particular in understanding several issues associated with how prices are determined for individual stocks. The chapter, in particular, provides further evidence of price and volume effects associated with index compositional changes by analysing the inclusions (exclusions) from the French CAC40 and SBF120 indices, as well as the FTSE100. I find evidence supporting the price pressure hypothesis associated with index fund rebalancing, but weak or no evidence for the imperfect substitution, liquidity and information hypotheses. The results improve on recent evidence from the S&P500 index. The evidence for the FTSE100 additions shows, in particular, that markets learn about an imminent inclusion and incorporate this information into prices, even before the announcement date.

The other two essays of this thesis relate to Corporate Governance issues. Chapters 2 and 3, in particular, analyze some aspects of two corporate governance mechanisms: ownership concentration and managerial labour market.

Chapter 2 provides an overview of the evolution of control in listed Slovenian corporations and evaluates the impact of the current changes in ownership on firm performance. Ownership and control has been concentrating in most transition countries. This consolidation of control introduces changes in the power distribution within privatised firms and, most importantly, redirects the corporate governance problem to a conflict between large and small shareholders. The chapter evaluate the ownership changes in Slovenian privatised firms through an analysis of stock price reactions to the entrance of a new blockholder (the shared benefits of control) and through an estimation of the premiums paid for large blocks (the private benefits of control). It provides evidence and discuss the reasons for the failures of the privatization investment funds in implementing control over firm managers and in promoting the restructuring of firms in the first post-privatization years.

Chapter 3 concentrates on one specific aspect of the managerial labour market: monetary remuneration schemes. The purpose of this chapter is to examine the interconnection between pay and corporate governance approaches with respect to the different rules found across European legal systems. The research data on reported pay practices for 2001 among FTSE Eurotop300 companies reveal a reliance on performance-based pay generally and a somewhat variable adoption of share options programs and other equity-based incentive contracts, which generate difficulties in dispersed ownership systems. Furthermore, on the basis of the regulation on executive remuneration disclosure discussed in this chapter and on the basis of the disclosure practices resulting from the data collected for the FTSE Eurotop300 constituents, I construct some disclosure indicators and analyse empirically how country and firm characteristics affect remuneration disclosure.

Doctorat en sciences économiques, Orientation économie
info:eu-repo/semantics/nonPublished

"October 2008"
Thesis (PhD)--Macquarie University, Division of Society, Culture, Media and Philosophy, Dept. of Sociology 2009.
Bibliography: leaves 273-293.
Introduction -- Patterns of corporate activity as patterns of corporate dominance: legal, organisational, and economic features of corporations -- Representations of corporate dominance in insidious injuries -- The legal basis of corporate dominance: History of the corporation -- Legal individualism and corporate personhood -- Theories of the corporation -- The legal regulation of corporations - corporate liability laws -- Conclusion.
Corporations are no longer simply a type of business structure; they are dominant social institutions. As institutions, corporations are archetypes of contemporary complex social organisation and should, therefore, be a central concern for sociology. Yet with few notable exceptions, sociologists have failed to address their increasingly dominant position in contemporary societies. In this thesis I argue the importance of a renewed sociological interest in corporations. This must acknowledge, but go beyond, the political-economic outcomes of corporations to address the profound consequences of the legal foundations of the corporate form. Corporations are created and regulated by legal doctrine; it is only with a legal mandate that corporations are able to act as employers, suppliers and investors. On this basis, I claim that any understanding of corporate dominance and its effects must commence with an appreciation of the laws that enable the corporation to exist and operate. -- While contributing significantly to wealth creation, corporate dominance also increases the potential for harm to occur to individuals and communities who fall within a corporation's scope. The contemporary proliferation of industrial illnesses is a prime example of this and is examined through a case study of the operations of an Australian asbestos corporation, James Hardie. This case study is timely and unique in its specification of the link between corporate activity and law in contemporary society. -- I argue that corporate activity such as that in the case study is enhanced and legitimated by the legal description of the corporation that assigns to it the capacities of a human individual through corporate legal personhood. Corporate personhood is examined as an example of the legal individualism endorsed in liberal common law countries. By exploring accounts of corporate structure, decision-making and work processes, I explain how the individualised description of the corporation is at odds with its collective realities; the largest and most successful corporations are collectives of human and monetary resources. -- In light of this, I question the extent to which the effective regulation of corporations can be achieved within existing legal frameworks. Building upon research into workplace health and safety in the United Kingdom, the regulation of workplace deaths in Australia is examined to demonstrate the various approaches to regulating corporations and to identify their shortcomings. This is a striking example of the problems law faces in regulating corporations by virtue of its individualistic design. -- The thesis concludes with an affirmation that sociology needs to grapple with issues of corporate activity and that an understanding of the legal basis of the corporation is the foundation of such studies.
Mode of access: World Wide Web.
295 leaves

The Retail Distribution Review (RDR) was introduced by the Financial Services Board (FSB) to change the distribution and remuneration practices in the financial services industry in an attempt to ensure that clients receive fair treatment when purchasing financial products. The FSB aims to ensure that clients are sold products which are suitable for their financial needs and objectives; that clients receive appropriate advice which is not biased and not subject to product supplier influence in particular and that there is full transparency in the sales process. The current distribution of financial products and some financial advisor remuneration models are noted as contributing factors to the poor outcomes of current product selling practices. The impact of RDR on the sustainability of the South African financial services industry and advisor force is expected to be substantial, especially in terms of advisor remuneration, the reduction in qualified experienced advisors and a growing advice gap. This study reviewed the research conducted in the UK and Australia where RDR has been implemented and the impact thereof on the financial planning industry in these countries. This study aimed to determine if the South African advisors have started changing their business models to ensure that they are ready for the implementation of RDR and to reduce the impact of RDR on their practices. An environmental scan was conducted in order to identify and understand other factors specific to the South African context which will impact the financial services industry in the future. Research was conducted via online questionnaires as well as personal interviews to determine the perception of clients pertaining to the trustworthiness and professionalism of financial advisors and what they perceive as value in terms of financial planning, their knowledge of RDR and the changing environment. Industry experts were given the opportunity to share their views regarding the impact of RDR on the industry as well as their proposals in terms of the implementation and roll-out of RDR.

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The several crises and many scandals occurred in the recent history of the Financial Market, brings about discussions concerning audit work aiming auditing report issuance. Therefore, this research aims to determine the level of regulatory compliance relating to the audit report established by Resolutions n??. CFC 1.231/09 - ISA 700, CFC n?? 1.232/09 - ISA 705, CFC n??. 1.233/09 - ISA 706 on the auditing reports issued by companies of information technology sector, available on the website of BM&FBovespa. To reach the proposed goal we have performed a study based on the technique of document analysis and content analysis, in which we have attempted to identify the content of the reports of selected audits adequacy, determined by the existing rules for the issuance of the auditing report. The research is descriptive and qualitative approach have been used, checking the contents of 25 audit reports of companies in the information technology industry in which we have compared the mandatory content established by the standard with the contents of the reports. It has been found that: the reports issued by independent auditing firms on the financial statements of the Information Technology companies for the period 2010-2012. It can be concluded that the reports analyzed, show adequacy to the regulations currently in force, in 10 of the 16 mandatory items established by those rules. However, it has been verified inadequacy as to the way exception is presented in the reports, i.e., through an emphasis paragraph, when it should be in an specific paragraph for exceptions. All the information collected is described and analyzed in the development of this work
A hist??ria recente do mercado financeiro por for??a das crises e dos muitos esc??ndalos corporativos traz ?? tona discuss??es a respeito dos trabalhos de auditoria, que t??m por finalidade a emiss??o do relat??rio de auditoria. Diante de tal exposto, esta pesquisa tem como objetivo a verifica????o do n??vel de adequa????o ??s normas relativas ao relat??rio de auditoria definidas pelas resolu????es CFC n??. 1.231/09 - NBC TA 700, CFC n??. 1.232/09 - NBC TA 705, CFC n??. 1.233/09 - NBC TA 706, dos relat??rios de auditoria emitidos pelas empresas do setor de tecnologia da informa????o, as quais disponibilizam suas informa????es no s??tio da BM&FBovespa. Para atingir o objetivo proposto, realizou-se um estudo baseado na t??cnica de an??lise documental e an??lise de conte??do, com as quais se buscou identificar, no conte??do dos relat??rios das auditorias selecionados a adequa????o determinada pelas normas em vigor para emiss??o de relat??rios. A pesquisa tem car??ter descritivo e utilizou a abordagem qualitativa, para averiguar o conte??do de 25 relat??rios de auditoria das empresas do setor de tecnologia da informa????o, tendo-se comparado o conte??do obrigat??rio institu??do pela norma com o conte??do dos relat??rios. Constatou-se que: os relat??rios emitidos pelas firmas de auditoria independente acerca das demonstra????es cont??beis das empresas de Tecnologia da Informa????o relativos ao per??odo de 2010 a 2012 apresentam adequa????o ?? norma vigente em 10 itens dos 16 itens obrigat??rios institu??dos pela referidas normas. Verificou-se inadequa????o quanto ?? forma de ressalva apresentada nos relat??rios, visto que a ressalva se d?? pelo par??grafo de ??nfase, quando o correto seria em par??grafo espec??fico de ressalva. Todos os dados coletados s??o descritos e analisados no desenvolvimento deste trabalho

This thesis examines a crisis of governance in the Republic of South Africa (RSA), a crisis which threatens Constitutionally guaranteed intergenerational rights to water, meaning these rights are unlikely to be upheld. RSA's post-1994 Constitution incorporated a number of historically unparalleled human rights, based on fundamental principles of human dignity and equality. This includes the right to water resources for current and future generations - making RSA one of a few countries to enshrine intergenerational rights in law. Under law, Government acts as fiduciary trustee with duties to protect the water resources for current and future generations of citizens. The thesis asserts that influences of Emmanuel Kant, John Rawls and Edith Brown Weiss are reflected in the Constitution and subsequent laws. However, historical and on-going impacts from extractive industries in the province of Gauteng are negatively impacting upon intergenerational water rights. Acid mine drainage is an acidic wastewater produced as a by-product of mineral extraction - particularly gold. It is polluting ground- and surface-waters across the province. A lack of effective government response to this issue has meant that AMD is acting as a catalyst accelerating the country's already problematic governance processes to a crisis level. As it has no long-term management plan, the government is neglecting its intergenerational responsibilities and abrogating Constitutional purpose. This situation is exacerbated by multiple, often conflicting, understandings in different sectors of society of the significance of intergenerational equity, further reinforcing the governance crisis. Due to lack of government response, non-State agents, specifically the mining and financial sectors, are becoming increasingly involved in political decision-making and governance. This has positive short-term effects in ensuring that the rights of communities that were previously affected by water shortages and pollution are upheld. Yet there are potential serious long-term repercussions for democracy in RSA as a result: non-State actors are not best equipped to determine outcomes of governance, and this may result in procedures of deliberative democracy being contravened. Robert Dahl's theories inform this thesis's understanding of deliberative democracy. Consequently, although RSA's Constitution guarantees intergenerational equity in theory, it is hard to achieve in practice. This is due to the governance crisis that has been precipitated by acid mine drainage, so that intergenerational rights to water are an unlikely long-term outcome for this developing nation.

Orientador: Carlos Gustavo Poggio Teixeira
Banca: Lucas da Silva Tasquetto
Banca: Flávia de Campos Mello
O Programa de Pós-Graduação em Relações Internacionais é instituído em parceria com a Unesp/Unicamp/PUC-SP, em projeto subsidiado pela CAPES, intitulado "Programa San Tiago Dantas"
Resumo: O termo governança global tomou nova forma na Governança da Internet, onde a maior parte das instituições utiliza-se do modelo multistakeholder, formando espaços de diálogo e processos decisórios com diversos atores, sejam estes estatais, privados, civis ou acadêmicos. Propõe-se então a análise do estudo de caso da ICANN, instituição responsável pela administração dos contratos relacionados à regulação do uso dos Nomes e Números, o DNS. Por meio de leitura acadêmica, jornalística, pesquisa de campo, participação em conferências e entrevistas com pessoas relevantes à área. Procedeu-se a elaboração, utilizando-se do material dessas diversas fontes, de um panorama da contextualização da revolução tecnológica que levou à Internet atual, e também da governança global. Posteriormente, passou-se para o ecossistema de Governança da Internet como conceito e prática. Assim, o estudo de caso está inserido em um contexto maior, de modo que se possa compreendê-lo em seus intrincados pormenores. Ao contrário da maioria das instituições transnacionais, que acabam por ter caráter recomendativo, na ICANN as decisões são realmente efetuadas. Apesar de o modelo multistakeholder propor igualdade entre os atores, alguns possuem maior influência. Antes da Transição IANA, os Estados Unidos tinham um peso muito maior, agora largamente ocupado pelo setor privado. A Governança da Internet é única dentro da governança global. Esta deve sua distinção a algumas possíveis razões, como o desenho técnico da... (Resumo completo, clicar acesso eletrônico abaixo)
Abstract:The term global governance has taken a new form in Internet Governance, where most institutions use the multistakeholder model, forming spaces for dialogue and decisionmaking processes with various actors, including states, companies, civil society or academia. An analysis of the ICANN case study, the institution responsible for administering contracts related to the regulation of the use of Names and Numbers, the DNS, is then proposed. The research was done through academic reading, journalism, field research, participation in conferences and interviews with people relevant to the area. With the material from these various sources, it was elaborated a panorama of the technological revolution contextualization that led to the Internet as it is today, as well as to global governance. Subsequently, we moved on to the Internet Governance ecosystem as a concept and practice. Thus, the case study is embedded in a larger context, so that one can understand it in its intricate details. Unlike most transnational institutions, which are deliberation bodies, ICANN decisions are actually carried out. Although the multistakeholder model proposes equality among the actors, some have greater influence. Prior to the IANA Transition, the United States had a much greater weight, now largely occupied by the private sector. Internet Governance is unique within global governance. It owes its distinction to some possible reasons, such as the technical drawing of the Internet. Therefore, there is a great possibility that this is not a reproducible model in other areas. The multistakeholder model presents a divergent way of assessing the relations between actors in the International System and the limit of state power. Even if there is no continuity in the current model, the field of study is extensive and still far from reaching maturity.
Mestre

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Os bancos públicos representam, historicamente, importante instrumento do governo federal no âmbito da formulação e implementação de políticas públicas. A relevância das ações materializadas por eles, principalmente, em relação ao desenvolvimento econômico e social, por meio da utilização de vultosos recursos oriundos do tesouro nacional, desperta a atenção da sociedade interessada em conhecer mais sobre as operações de empréstimos. A política de transparência torna-se central à luz de relevantes conceitos de democracia e de desdobramentos importantes de publicidade, prestação de contas e Accountability, principalmente após a Constituição de 1988 pela necessidade de efetivação de mecanismos democráticos. Desta forma, esta pesquisa busca contribuir tanto para a discussão teórica quanto para a base empírica do tema de transparência nos bancos públicos. Com a realização de pesquisa documental estruturada para levantamento de dados e informações, foi possível analisar os fatores apresentados a partir dos casos do Banco do Brasil (BB), da Caixa Econômica Federal (CEF) e do Banco Nacional de Desenvolvimento Econômico e Social (BNDES), avançando no debate da transparência dos bancos públicos. Esta pesquisa exploratória explica, além de outros fatores, como o conceito de transparência aplicado ao objeto de banco público no Brasil assume a característica de “conceito essencialmente contestado” (GALLIE, 1956).
Historically, public banks represent important instrument of the federal government as part of the formulation and implementation of public policies. The relevance of actions materialized for them, especially in relation to economic and social developments, through the use of significant resources from the national treasury, arouses the attention of the society interested in learning more about the loans. The policy of transparency becomes the central about the relevant concepts of democracy and important developments of advertising and accountability, especially after the 1988 Brazilian Constitution by the need for effective democratic mechanisms. Thus, this research aims to contribute both to the theoretical discussion as to the evidence base theme of transparency in public banks. With the completion of documentary research for structured data collection and information, it was possible to analyze the factors presented cases from the Bank of Brazil (BB), Caixa Economica Federal (CEF) and the National Bank for Economic and Social Development (BNDES), advancing the discussion of transparency of public banks. This exploratory research explains, among other factors, how the concept of transparency applied to public database object in Brazil takes on the characteristic of "essentially contested concept" (Gallie, 1956).

This dissertation analyzes the development of the Islamic Society of North America (ISNA), a Muslim-American religious association, from the Iranian Revolution to the inauguration of our nation's first African-American president. This case study of ISNA, the largest Muslim-American organization in North America, examines the organization's institution-building and governance as a way to illustrate Muslim-American civic and religious participation. Using nonprofit research and theory related to issues of diversity, legitimacy, power, and nonprofit governance and management, I challenge misconceptions about ISNA and dispel a number of myths about Muslim Americans and their institutions. In addition, I investigate the experiences of Muslim-Americans as they attempted to translate faith into practice within the framework of the American religious and civic experience. I arrive at three main conclusions. First, because of their incredible diversity, Muslim-Americans are largely cultural pluralists. They draw from each other and our national culture to develop their religious identity and values. Second, a nonprofit association that embraces the values of a liberal democracy by establishing itself as an open organization will include members that may damage the organization's reputation. I argue that ISNA's values should be assessed in light of its programs and actions rather than the views of a small portion of its membership. Reviewing the organization's actions and programs helps us discover a religious association that is centered on American civic and religious values. Third, ISNA's leaders were unable to balance their desire for an open, consensus-based organization with a strong nonprofit management power structure. Effective nonprofit associations need their boards, volunteers and staff to have well-defined roles and authority. ISNA's leaders failed to adopt such a management and governance structure because of their suspicion of an empowered chief executive officer.

自20世纪90年代起，金融及法律界学者逐渐提出到境外发达资本市场上市可以发挥其 “捆绑“作用：企业可以通过跨越本国薄弱的法律机制，受制于发达国家的法律以及监管，实现公司治理的提高。“捆绑理论起源于美国, 但随后也被运用于全球市场的其他角落。 问题关键在于本国市场与境外市场之间是否存在一个"质量差距", 因为只有在“质量差距“存在的情况下，“捆绑“的作用才有可能产生。
源于“香港“英文拼写中的第一个字母H，到香港上市的中国企业被统称为H-股公司。自“青岛啤酒“于1993成功于香港上市，至今香港联交所已有169 间H-股公司。其中，2002至2006 是到港上市的高峰期. 此期间，中国资本市场混乱，难以发挥为企业融资的作用。鉴于此，中国政府鼓励国内企业到香港上市，寄予通过香港更好的治理机制，实现对本土企业治理实践的提高。
当前，人们普遍认为香港上市可以顺利提高中国企业的治理实践。如若事实如此，我们有理由相信中国本土市场与香港市场之间存在明显的“质量差距“。也就是说香港市场的治理体系优于国内市场。此文以中小股东保护为出发点，于以下几个方面探讨两地之间是否存在“质量差距“：信息披露，独立董事，金融中介机构的“看门人“作用，证券法的公力救济，以及公司法，证券法的私力救济。
In the 1990s, finance and legal scholars gradually proffered the view that cross-listing in a developed market functions as a "bonding" mechanism: a firm may improve governance practices in spite of the home country's weak legal institutions by subjecting itself to the legal and regulatory regime of the developed market. Initially developed in the context of overseas companies listed in the US, this bonding effect has been applied to other places of the global market as well. Critical to this scenario is the existence of a "quality gap" between the home and the foreign markets, which must exist for generating the bonding effect.
Chinese companies listed in Hong Kong are known as H-share companies for the first letter of the listing locality. Since the birth of the first H-share company, Tsingtao Beer, in 1993, a total of 168 H-share companies have floated on the Stock Exchange of Hong Kong. A majority of these companies were listed between 2002 and 2006. Around this period, the two domestic exchanges were highly volatile and failed to provide an efficient fund-raising device for Chinese companies. Against this backdrop, the Chinese government adopted the strategy of encouraging domestic companies list in Hong Kong, which is perceived to be a better governance regime, thereby bonding the governance practices of Chinese companies to a superior standard.
It is current conventional wisdom that the governance practices of Chinese companies can be enhanced indeed through pursuing a listing on the SEHK. If conventional wisdom so holds, we should believe there is a quality gap between these two markets. In other words, the governance regime of the Hong Kong market must be superior to that of China. Focusing on the level of protection for minority shareholders, this study questions the conventional wisdom in five areas: information disclosure, board independence, the gatekeeping role played by financial intermediaries, public enforcement of securities law, and private enforcement of corporate and securities law.
Detailed summary in vernacular field only.
Detailed summary in vernacular field only.
Detailed summary in vernacular field only.
Meng, Fanpeng.
Thesis (Ph.D.)--Chinese University of Hong Kong, 2012.
Includes bibliographical references (leaves 300-331).
Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web.
Abstract also in Chinese.
INTRODUCTION --- p.1
INFORMATION DISCLOSURE --- p.3
INDEPENDENT DIRECTOR --- p.4
GATEKEEPER --- p.4
PUBLIC ENFORCEMENT --- p.5
PRIVATE ENFORCEMENT --- p.5
OVERALL BONDING EFFECT --- p.6
Chapter CHAPTER I --- OVERVIEW --- p.7
INTRODUCTION --- p.7
Chapter 1.1 --- THE SOE REFORM --- p.7
Chapter 1.1.1 --- Pre-1949 Era --- p.8
Chapter 1.1.2 --- Leninist Model of State-Syndicate --- p.10
Chapter 1.1.3 --- Power Delegating and Profit Sharing (PDPS) --- p.11
Chapter 1.1.4 --- Corporatization --- p.12
Chapter 1.2 --- THE ESTABLISHMENT OF THE CHINESE STOCK MARKET --- p.14
Chapter 1.3 --- THE VOLATILITY OF THE CHINESE STOCK MARKET --- p.16
Chapter 1.4 --- HONG KONG: A CAPITAL MARKET WITH CHINESE CHARACTERISTICS --- p.21
Chapter 1.5 --- THE ROAD TO THE HONG KONG BOURSE --- p.26
Chapter 1.6 --- AN ECONOMIC ANALYSIS OF CROSS-LISTING --- p.34
Chapter 1.7 --- CONCEPTUAL FRAMEWORK --- p.39
Chapter CHAPTER II --- LITERATURE REVIEW --- p.45
INTRODUCTION --- p.45
Chapter 2.1 --- CONCEPT OF CORPORATE GOVERNANCE --- p.47
Chapter 2.2 --- AGENCY COST --- p.51
Chapter 2.3 --- CONVERGENCE --- p.55
Chapter 2.4 --- THE BONDING HYPOTHESIS --- p.59
Chapter 2.5 --- CHALLENGING THE BONDING HYPOTHESIS --- p.65
Chapter 2.6 --- CROSS-LISTING IN THE H-SHARE CONTEXT --- p.68
Chapter CHAPTER III --- INFORMATION DISCLOSURE --- p.72
INTRODUCTION --- p.72
Chapter 3.1 --- GENERAL DIFFERENCES OF THE TWO DISCLOSURE REGIMES --- p.74
Chapter 3.1.1 --- Rulemaking --- p.74
Chapter 3.1.1(A) --- China --- p.75
Chapter 3.1.1(B) --- Hong Kong --- p.75
Chapter 3.1.2 --- Disclosure Medium --- p.76
Chapter 3.1.2(A) --- China --- p.76
Chapter 3.1.2(B) --- Hong Kong --- p.77
Chapter 3.1.3 --- Disclosure Language --- p.78
Chapter 3.1.3(A) --- China --- p.78
Chapter 3.1.3(B) --- Hong Kong --- p.79
Chapter 3.2 --- PROSPECTUS --- p.79
Chapter 3.2.1 --- Financial Report --- p.80
Chapter 3.2.1(A) --- China --- p.80
Chapter 3.2.1(B) --- Hong Kong --- p.81
Chapter 3.2.2 --- Business Activities, Products, and/or Services --- p.81
Chapter 3.2.2(A) --- China --- p.82
Chapter 3.2.2(B) --- Hong Kong --- p.83
Chapter 3.2.3 --- Shareholding Structure --- p.83
Chapter 3.2.3(A) --- China --- p.84
Chapter 3.2.3(B) --- Hong Kong --- p.85
Chapter 3.2.4 --- Development Plan --- p.85
Chapter 3.2.4(A) --- China --- p.85
Chapter 3.2.4(B) --- Hong Kong --- p.86
Chapter 3.3 --- PERIODIC REPORTING --- p.86
Chapter 3.3.1 --- Accounting Standards --- p.87
Chapter 3.3.1(A) --- Accounting Harmonization --- p.87
Chapter 3.3.1(B) --- China --- p.88
Chapter 3.3.1(C) --- Hong Kong --- p.89
Chapter 3.3.1(D) --- Harmonization Between China and Hong Kong --- p.90
Chapter 3.3.2 --- Mandatory Quarterly Reporting (MQR) --- p.91
Chapter 3.3.2(A) --- China --- p.91
Chapter 3.3.2(B) --- Hong Kong --- p.92
Chapter 3.4 --- AD HOC DISCLOSURE --- p.94
Chapter 3.4.1 --- PSI --- p.94
Chapter 3.4.1(A) --- China --- p.95
Chapter 3.4.1(B) --- Hong Kong --- p.96
Chapter 3.4.2 --- Disclosure of Connected Transactions --- p.97
Chapter 3.4.2(A) --- China --- p.98
Chapter 3.4.2(B) --- Hong Kong --- p.102
Chapter 3.4.3 --- Disclosure of Notifiable Transactions --- p.106
Chapter 3.4.3(A) --- China --- p.106
Chapter 3.4.3(B) --- Hong Kong --- p.108
CONCLUSION --- p.111
Chapter CHAPTER IV --- INDEPENDENT DIRECTOR --- p.113
INTRODUCTION --- p.113
Chapter 4.1 --- AGENCY COST, BOARD INDEPENDENCE, AND CORPORATE PERFORMANCE --- p.116
Chapter 4.2 --- INDEPENDENT DIRECTORS IN CHINA --- p.119
Chapter 4.2.1 --- Regulatory Rules --- p.119
Chapter 4.2.1(A) --- Guidelines for the Articles of Association of Listed Companies --- p.120
Chapter 4.2.1(B) --- Guiding Opinions on the Establishment of Independent Director System for Listed Companies --- p.121
Chapter 4.2.1(C) --- Principles of Corporate Governance for Listed Companies --- p.123
Chapter 4.2.2 --- Implementation of the Institution of Independent Director --- p.125
Chapter 4.2.3 --- Empirical Results --- p.126
Chapter 4.2.4 --- A Wrong Prescription for the Governance Disease --- p.127
Chapter 4.3 --- INDEPENDENT DIRECTORS IN HONG KONG --- p.132
Chapter 4.3.1 --- Regulatory Rules --- p.132
Chapter 4.3.1(A) --- Listing Rules --- p.133
Chapter 4.3.1(B) --- Code on Corporate Governance Practices --- p.134
Chapter 4.3.2 --- The Same Wrong Prescription --- p.136
Chapter 4.4 --- INDEPENDENT DIRECTORS OF H-SHARE COMPANIES --- p.140
Chapter 4.4.1 --- Regulatory Rules --- p.141
Chapter 4.4.2 --- Comparison of the Minimum Mandatory Requirements --- p.142
Chapter 4.4.3 --- Sample Study --- p.143
Chapter 4.4.3(A) --- Employment of INEDs --- p.143
Chapter 4.4.3(B) --- Specialized Committee --- p.144
Chapter 4.4.3(C) --- Occupational Background of INEDs --- p.145
CONCLUSION --- p.146
Chapter CHAPTER V --- GATEKEEPER --- p.148
INTRODUCTION --- p.148
Chapter 5.1 --- SPONSOR --- p.151
Chapter 5.1.1 --- China --- p.152
Chapter 5.1.2 --- Hong Kong --- p.157
Chapter 5.2 --- AUDITOR --- p.163
Chapter 5.2.1 --- China --- p.163
Chapter 5.2.2 --- Hong Kong --- p.168
Chapter 5.3 --- CORPORATE ATTORNEY --- p.173
Chapter 5.3.1 --- China --- p.173
Chapter 5.3.2 --- Hong Kong --- p.177
Chapter 5.4 --- CRA --- p.182
Chapter 5.4.1 --- China --- p.183
Chapter 5.4.2 --- Hong Kong --- p.189
CONCLUSION --- p.192
Chapter CHAPTER VI --- PUBLIC ENFORCEMENT --- p.196
INTRODUCTION --- p.196
Chapter 6.1 --- PUBLIC ENFORCEMENT IN CHINA --- p.199
Chapter 6.1.1 --- CSRC --- p.199
Chapter 6.1.1(A) --- The Primitive Stage --- p.200
Chapter 6.1.1(B) --- The Medieval Stage --- p.201
Chapter 6.1.1(C) --- The Modern Stage --- p.204
Chapter 6.1.1(D) --- CSRC Sanctions --- p.204
Chapter 6.1.2 --- Stock Exchange Self-Regulation --- p.207
Chapter 6.2 --- PUBLIC ENFORCEMENT IN HONG KONG --- p.213
Chapter 6.2.1 --- Hong Kong Government --- p.213
Chapter 6.2.2 --- SFC --- p.214
Chapter 6.2.3 --- MMT --- p.219
Chapter 6.2.4 --- SEHK --- p.221
Chapter 6.2.5 --- The CITIC Pacific Case --- p.223
Chapter 6.2.6 --- Maintenance of the Non-statutory SEHK Listing Rules --- p.226
Chapter 6.3 --- EFFECTS OF REPUTATIONAL SANCTIONS IN CHINA AND HONG KONG --- p.230
Chapter 6.3.1 --- Do Listed Companies Care? --- p.230
Chapter 6.3.2 --- Share Price Reaction --- p.232
Chapter 6.3.2(A) --- Sample --- p.232
Chapter 6.3.2(B) --- Measurement of Cumulative Abnormal Returns (CAR) --- p.233
Chapter 6.3.2(C) --- Results --- p.234
Chapter 6.3.3 --- Collateral Effects --- p.235
Chapter 6.4 --- LIMITED EFFECTS OF REPUTATIONAL SANCTIONS ON H-SHARE COMPANIES --- p.237
CONCLUSION --- p.240
Chapter CHAPTER VII --- PRIVATE ENFORCEMENT --- p.242
INTRODUCTION --- p.242
Chapter 7.1 --- SECURITIES LAW --- p.245
Chapter 7.1.1 --- China --- p.245
Chapter 7.1.2 --- Hong Kong --- p.248
Chapter 7.2 --- CORPORATE LAW --- p.253
Chapter 7.2.1 --- The Common Law Rule in Foss v Harbottle --- p.253
Chapter 7.2.2 --- The New Derivative Action in China --- p.255
Chapter 7.2.2(A) --- Background --- p.255
Chapter 7.2.2(B) --- Locus Standi --- p.257
Chapter 7.2.2(C) --- Standing Requirement --- p.260
Chapter 7.2.2(D) --- Personal Benefit --- p.261
Chapter 7.2.2(E) --- Funding the Action --- p.262
Chapter 7.2.3 --- The Statutory Derivative Action in Hong Kong --- p.265
Chapter 7.2.3(A) --- Member --- p.266
Chapter 7.2.3(B) --- Specified Corporation --- p.267
Chapter 7.2.3(C) --- Misfeasance --- p.268
Chapter 7.2.3(D) --- Preconditions for Leave --- p.269
Chapter 7.2.4 --- Private Enforcement Under the MPAAOs --- p.274
Chapter 7.2.4(A) --- Enforcement by Arbitration --- p.274
Chapter 7.2.4(B) --- Arbitration Procedures --- p.278
Chapter 7.2.4(C) --- Enforcement of Arbitral Awards --- p.281
CONCLUSION --- p.286
CONCLUSION --- p.288
INFORMATION DISCLOSURE --- p.289
INDEDPENDENT DIRECTOR --- p.291
GATEKEEPER --- p.292
PUBLIC ENFORCEMENT --- p.296
PRIVATE ENFORCEMENT --- p.297
OVERALL BONDING EFFECT --- p.299

This dissertation critically analyses the role of disclosure in strengthening corporate governance and accountability to determine whether a prescriptive system of disclosure is of greater efficacy than a voluntary regime. The research undertaken has been done on a qualitative and theory building basis. The purpose of the study is to examine how current and future legal reform can curb corporate governance shortcomings and contribute to a new more dependable mode of corporate governance. This requires a comparative analysis of the South African and English models which are voluntary ('comply or explain') regimes compared to the prescriptive American model of corporate governance ('comply or else'). The foundational basis, definition and jurisdictional evolution of corporate governance is examined and analysed to ascertain the role of disclosure in relation to good governance. To facilitate this investigation a critical review of the legislative framework and reforms enacted locally (and offshore where applicable) is also undertaken. Disclosure as a concept is probed in terms of both a mandatory disclosure and voluntary disclosure regime to determine the more prudent mode of dissemination and how it impacts the efficacy of corporate governance and accountability. To ensure a holistic VIew of the role of disclosure is comprehensively critiqued its influence on corporate social responsibility is embarked upon. It is contextualized against the shareholder (contractarian) theory of governance versus that of the stakeholder (communitarian) theory of governance. This will involve a study of the competing requirements of disclosure in terms of these two theories and its impact on securing accountability. The tenuous relationship between shareholders and directors is considered to determine whether corporate governance regimes safeguard shareholder rights and how these measures contribute to strengthening governance. The codified role of directors in enhancing disclosure to shareholders is also undertaken. To exatrune the interplay between these concepts corporate governance failures are dissected to determine the shortcomings of disclosure practice. The recommendation of this dissertation is that a mandatory disclosure regime is of greater efficacy in strengthening corporate governance and accountability but to remedy recurring corporate governance shortcomings a disclosure regime that is holistic and principles based is required. It should also be supported by a dedicated and empowered regulatory system with sufficient penal measures to curb fraudulent behaviour but sufficient flexibility so as not to curtail industrial fortitude.
Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2010.

Thesis (LLM.) -- University of Limpopo, 2017.
The introduction of the King reports on corporate governance in South Africa introduced good corporate governance principles to be applied by companies and entities; public, private and state-owned companies. The lxxvpurpose of King I, II, III and draft King IV on corporate governance is to provide and promote a good transitional process in companies in order for them to showcase the principles of accountability, sustainability and transparency; which are the fundamental aspects of which every company has to adhere to in order for it to be a good corporate citizen of the state. Ethics as mostly dealt with in draft King IV being the founding principles of good corporate governance. The trends across the domains show a lack of good corporate governance between the shareholder, board and management with displacement of the controlling and managing abilities between the parties. Despite continued upheavals, repeated disappointment and financial shortcomings the government continues to bail state-owned airlines from a state of insolvency. This study aims to analyze the application of the corporate governance principles in the aviation sector looking closely into state-owned airlines.

Thesis (LLM. (Development and management law)) -- University of Limpopo, 2012
This mini-dissertation highlights corporate governance initiatives in South Africa, focusing on the proposed governance reforms. An analysis of the major corporate governance reform is done including, statutory reforms, development of codes of conduct and practice and institutional reforms. The evolution of South Africa’s corporate structure and forces driving corporate governance is examined. It is noted that corporation in South Africa cannot shield themselves from the global movement shaping the standard principle governing corporations. Therefore the global principle corporate governance are examined concerning how they can serve as models for enhancing corporate governance standard in South Africa. The analysis is based on the need to bring South Africa’s corporate governance in line with international accepted standard but considering the best interest of South Africa and its citizen.

The right to education is entrenched in the Constitution of the Republic of South Africa, 1996. The Constitution, together with various policy documents, provides guiding principles for the transformation of higher education in South Africa. Several universities were placed under administration, before and after the attainment of democracy in South Africa. The independent assessors reports on these institutions have one thing in common, namely that they point out poor administration and ineffective corporate governance practices. Despite many commendable initiatives by Government since 1994 to improve an apparently flawed higher education system, some aspects could be enhanced further, especially concerning corporate governance and governance accountability. Council members and the executive management of higher education institutions are subject to common law fiduciary duties and duties of care and skill. However, their accountability for breaches of these duties is not always clear and is seldom enforced. There is a need to balance effective accountability and the exercise of discretionary powers that are integral to effective governance and management. This thesis considers how corporate governance and compliance in higher education can be improved further, taking into account various legislative changes to the Higher Education Act 101 of 1997, direction provided by the Companies Act 71 of 2008 and the Banks Act 94 of 1990 in respect of the regulation of directors’ duties. An in-depth investigation into the relevant provisions of these Acts was not intended nor undertaken. Rather, the thesis draws from these Acts so that the problems concerning corporate governance in the higher education sector may be dealt with. The regulation of higher education in the foreign jurisdiction of the State of Georgia in the United States of America and in the Canadian province of Ontario was also considered. Based on the research undertaken, specific amendments are proposed to the Higher Education Act of 1997 and the Regulations for Reporting by Public Higher Education Institutions 2014, which are aimed at improvin higher education.
Die reg op onderwys word in die Grondwet van die Republiek van Suid-Afrika 1996 verskans. Riglyne vir die transformasie van hoër onderwys in Suid-Afrika word in die Grondwet en verskeie ander beleidsdokumente vervat. Voordat en nadat ‘Suid-Afrika demokraties geword het, is verskeie universiteite onder administrasie geplaas. Luidens die onafhanklike assessore se verslae, het hierdie instellings een ding gemeen gehad: swak administrasie en ondoeltreffende korporatiewe regering. Ondanks talle prysenswaardige stappe van die regering sedert 1994 om die probleme in die hoëronderwysstelsel te ondervang, kan bepaalde aspekte steeds verbeter, in die besonder korporatiewe regering en regeeraanspreeklikheid. Raadslede en lede van die uitvoerende besture van hoëronderwysinstellings is verplig om hulle gemeenregtelike fidusiêre pligte en hulle sorgvuldigheids- en kundigheidsplig na te kom. Hulle verantwoordingspligtigheid in geval van pligsversuim is egter dikwels vaag en word selde afgedwing. Die juiste ewewig moet gevind word tussen doeltreffende verantwoordingspligtigheid en die uitoefening van diskresionêre magte wat onlosmaaklik deel is van doeltreffende korporatiewe regering en bestuur. In hierdie tesis word gekyk hoe korporatiewe regering en nakoming in hoër onderwys verbeter kan word met inagneming van verskeie wysigings van die Wet op Hoër Onderwys 101 van 1997, riglyne in die Maatskappywet 71 van 2008 en in die Bankwet 94 van 1990 aangaande die pligte van direkteure. Geen grondige ondersoek na die toepaslike bepalings in hierdie wette is beoog of gedoen nie. Hulle word eerder gebruik om oplossings vir die probleme met korporatiewe regering in hoër onderwys te vind. Hoe hoër onderwys in die Amerikaanse deelstaat Georgia en die Kanadese provinsie Ontario gereël word, is eweneens in ag geneem. Wysigings van die Wet op Hoër Onderwys van 1997 en die Regulations for Reporting by Public Higher Education Institutions 2014, wat poog om verantwoordingspligtigheid en voldoening in hoër onderwys te verbeter, word voorgestel.
Ilungelo lokufunda liqukethwe uMthethosisekelo woMbuso waseNingizimu Afrika, wangonyaka ka 1996. UMthethosisekelo, kanye neminye imibhalo eyahlukahlukene yemigomo, inikeza umhlahlandlela wemigomo yokuguqulwa kwamaziko emfundo ephakeme eNingizimu Afrika. Amanyuvesi ahlukahlukene amiswa futhi, ngaphambili nangemuva kokuthola idemokhrasi eNingizimu Afrika. Imibiko yabaphenyi bamanyuvesi abazimele inophawu olufanayo, lokuthi iveza ukungahanjiswa kahle kohlelo lokuphatha kanye nokungalandelwa kwezingqubo zokuphatha amabhizinisi. Yize kunemizamo eminingi encomekayo evela uHulumeni kusukela ngonyaka ka 1994, imizamo yokuthuthukisa uhlelo lwemfundo ephakeme olwehlulekayo, ezinye zezimpawu zaqhubeka nokuqiniswa, ikakhulu lezo ezimayelana nokuphathwa kwamaziko kanye nokuziphendulela kwamaziko. Amalungu omkhandlu kanye nesigungu sabaphathi bamaziko emfundo ephakeme bayaphoqeleka ukulandela umthetho ngokuthi benze imisebenzi ngokuthembeka okuyimisebenzi emayelana nokunakekela kanye namakhono okusebenza. Yize-kunjalo, ukuziphendulela kwabo uma bephula imithetho kaningi akucaci kahle kanti le mithetho ayivamisile ukuqiniswa. Kunesidingo sokulinganisa uhlelo olusebenzayo lokuziphendulela kanye nokusebenzisa amandla okuphatha onikezwe wona, okungamandla ayinsika ekuqiniseni uhlelo lokuhanjiswa kahle kwamaziko kanye nokuphathwa. Le thesis iqonde ekutheni ngabe uhlelo lokuphathwa kwamaziko kanye nokulandelwa kwemithetho emazikweni emfundo aphakeme kungathuthukiswa kanjani, uma kubhekwa izinguquko zomthetho ezahlukahlukene, kuMthetho 101 weMfundo Ephakeme ka 1997, uma kubhekwa indlela enikezwa uMthetho 71 weziNkampani ka 2008 kanye noMthetho 94 wamaBhange ka 1990 mayelana nomthetho wemisebenzi yabaqondisi. Akukaze kube nenhloso futhi kwenziwe uphenyo olujulile mayelana nemithetho efanele yale Mithetho. Kunalokho, ithesisi yencike phezu kwaleMithetho ukuze izinkinga ezimayelana nokuphathwa kwamaziko emkhakheni wemfundo ephakeme zidingidwe kahle. Umthetho wemfundo ephakeme esiyingini somthetho sangaphandle se-State of Georgia ngase-United States of America kanye nasesifundazweni saseCanada ngase-Ontario nawo uye wabhekwa. Ngenxa yocwaningo olwenziwe, sekuye kwaphakanyiswa ukuthi kube nezinguquke ezithile eMthethweni weMfundo ePhakeme ka 1997 kanye naseMithethweni yokuBika yamaZiko eMfundo ePhakeme oMphakathi ka 2014, okuyimithetho ehlose ukuthuthukisa izinga lokuphatha okunokuziphendulela kanye nokulandela umthetho wemfundo ephakeme.
Mercantile Law
LL. D.

In the context of transition, where the Chinese enterprises are seeking good models for the corporate governance, one Anglo-American corporate governance model, the agency model, seems to shed some light on enterprises that used to be privately-owned and have transformed into public corporations. Although the agency model might be a solution to the public corporations, it never the less fails to match the Chinese context in many respects. In light of the nature of the agency model and potential mismatches with the Chinese context, this thesis examines theoretical reasons that could account for the discrepancies between the two. It is argued that, despite the foreign nature of this model and the need for amendment, the Chinese public corporations are still be able to establish good corporate governance structure via it.

Thesis (LLM.) -- University of Limpopo, 2017.
Good corporate governance is essentially about effective, responsible leadership. This is characterized by the ethical values of responsibility, accountability, fairness and transparency, which values underpin good corporate governance. After the promulgation of the Kings Code, amendment of the Companies Act and the promulgation of the Public Financial Management Act, it has been shown that most of the leadership and board of directors in state owned entities have not been following the guidelines and principles provided in these legislations and that’s why most of them are in disarray. It is, therefore, the objective of this research to help restore the integrity and confidence in state owned entities and the need to a draw the line between personal interest and that of the company. An appropriate approach will be to conduct training or a workshop, whereby appointed persons can be reminded of how to discharge their rights and duties before they are instated into a particular post.

Traditionally, the corporate governance scholarship has emphasized heavily the "dispersed shareholder regimes" in the United States and the United Kingdom, although "controlling shareholder regimes" constitute the vast majority of the world's economy. Since there have been few systematic studies concerning controlling shareholder regimes (in particular, controlling shareholder regimes in developing countries), they have remained in a black box. With this concern in mind, in this dissertation, I proposed various analytical frameworks for understanding the corporate governance of controlling shareholder regimes that, improperly, have been overlooked for a long time. In the first chapter of my dissertation, entitled Reenvisioning the Controlling Shareholder Regime: Why Controlling Shareholders and Minority Shareholders Embrace Each Other, I proposed theories to explain why controlling shareholders and minority shareholders "voluntarily" embrace each other in an emerging capital market while the legal system in that jurisdiction does not require controllers to protect investors. In the second chapter, entitled Controlling Shareholders - "Roving" v. "Stationary," I explored two types of controlling shareholders (i.e., "roving" and "stationary" controllers) and delved into why an economy with stationary controllers is better in terms of corporate governance and more likely to be prosperous than an economy with roving controllers. In the third chapter, entitled Transplanting a Poison Pill to a Controlling Shareholder Regime, I analyzed how a poison pill would affect the market for corporate control and the corporate governance of controlling shareholder regimes. In this dissertation, I have proposed many unconventional analyses and views on controlling shareholder regimes (in some cases, the concepts may be counterintuitive from the perspective of the conventional corporate governance scholarship). I hope that my research will guide scholars in a theoretical way to understand the various aspects of law and economics related to corporate governance that mostly have not been recognized or that have been misunderstood in the standard scholarly studies of corporate governance.

by Wang Xiao Ling.
Thesis (M.Phil.)--Chinese University of Hong Kong, 1998.
Includes bibliographical references (leaves 70-73).
Abstract also in Chinese.
Abstract --- p.i
Acknowledgment --- p.ii
Table of Contents --- p.iii
List of Tables --- p.v
List of Figures --- p.vi
Chapter I --- Introduction --- p.1
Chapter 1.1 --- Introduction --- p.1
Chapter 1.2 --- Objective of the Study --- p.3
Chapter 1.3 --- Outline of the Study --- p.4
Chapter II --- Background --- p.5
Chapter 2.1 --- China's Enterprise Reform and the Development of Capital Markets --- p.5
Chapter 2.2 --- Board of Directors in China --- p.13
Chapter 2.2.1 --- Legislation on Board - The Company Law --- p.13
Composition of the Board of Directors --- p.16
Functions and Powers --- p.18
Regulations and Requirements --- p.19
Chapter 2.2.2 --- The Board of Chengdu Brilliant Development Inc --- p.21
Chapter 2.2.3 --- Difference between Board in China's Company Law and that in Hong Kong Company Ordinance --- p.24
Chapter 2.3 --- Chapter Summary --- p.26
Chapter III --- Literature Review --- p.27
Chapter 3.1 --- Theoretical Background --- p.27
Chapter 3.2 --- Empirical Studies --- p.30
Takeover Evaluation --- p.30
Management Buyout --- p.31
Adoption of Poison Pills --- p.32
CEO Turnover --- p.32
Financial Performance --- p.33
Chapter IV --- Testable Hypotheses --- p.35
Chapter V --- Research Methodology --- p.37
Chapter 5.1 --- Variables and Sample --- p.37
Chapter 5.2 --- Empirical Results --- p.43
Board Composition and Corporate Performance with Full Sample --- p.43
Excluding IPO Firms --- p.51
Insider Dominated Board and Outsider Dominated Board --- p.51
Alternative Measures for Firm Performance --- p.55
Cross-sectional Test --- p.58
Financial Distress --- p.60
Industry Classification --- p.62
Chapter 5.3 --- Discussion --- p.64
Chapter VI --- Conclusion and Implications --- p.67
Chapter 6.1 --- Conclusion and Implications --- p.67
Chapter 6.2 --- Suggestions for Further Research --- p.69
Bibliography --- p.70
Appendix Legislation on the Board (The Company Law in PRC) --- p.74

Thesis (M. Dev.) -- University of LImpopo, 2017.
The new democratic government of South Africa came into power in 1994 and it inherited a dysfunctional municipalities. In fact it inherited a country with high levels of poverty, growing levels of inequality and also social dysfunctionality. The local government sphere was established in South Africa with the main aim of addressing inequality, segregation, inequity, discrimination in the provision of municipal services and eradication poverty within communities. However, ever since the establishment of local government sphere in South Africa, the sphere of local government is fraught with many challenges which make it impossible for municipalities to render proper municipal services to the members of the public. This is evident from the protests which were observed in the country ever since the year 2008 were communities demanded better services from their municipalities. This mini-dissertation therefore discusses the application of the principles of corporate governance in delivering and improving municipal service in South Africa. It further discusses the legislative framework and the institution of government which are responsible for the effective implementation of corporate governance in the local government sphere. Pursuant to that it also explains the concept of Corporate Governance within the local government. Furthermore, it discusses the parameters of the challenges that are faced by the municipalities which are ranging from fraud, nepotism, corruption and poor financial management which result in poor service delivery.

碩士
南台科技大學
財經法律研究所
98
Influenced by the globalization, ownership and management right have increasingly become separate in the governance structure of corporations. Plenty of minority shareholders do not participate in the management of corporations directly, and it thus leads to that managerial decision-making rights are controlled by the management level or controlling shareholders who often violate minority shareholders' interest through their superior status. The flawlessness of corporate governance system affects not only corporate performance but also national financial order. Within recent years, countries around the world tended to strengthen shareholders' interest with regard to corporate governance -- to protect minority shareholders' interest and facilitate the exercise in particular, more significant for a sound corporate governance. Taiwan and China joined in WTO in Dec. 2001 and Jan. 2002; in order to fulfill their commitments made as they joined in it, they amended related corporation law in 2005 and 2006 and particularly focused on the issues of corporate governance and the protection of minority shareholders in the hope to meet the trend of corporate governance under globalization. This study discussed issues related to corporate governance and the protection of minority shareholders' interest based on 3 dimensions. First, modern and new concepts of corporate governance included corporate social responsibility, therefore whether corporations should take the social responsibility for other stakeholders and whether corporation owners should be responsible only for shareholders will affect shareholders' interest. Hence, this study discussed the content and evolution of corporate social responsibility from the traditional perspective of shareholders' interests come first and further investigated the harmonizing of these two opposing concepts and finally discussed the implementation and legislation of corporate social responsibility in countries around the world, Taiwan and China. Next, this study discussed the content of corporate governance in order to know the current status and trend of corporate governance worldwide and in international economic organizations, and analyzed the influence of different shareholding structures on corporate governance rules under different legal systems to further understand the influence of different corporations' governance status on minority shareholders' interest, and finally investigated what the necessity of the protection of minority shareholders' interest was. Furthermore, Taiwan and China inevitably cannot be bystanders because the issue of the protection of minority shareholders' interest in corporation law was valued by each country and international economic organizations. As a consequence, it was necessary to discuss systems related to the protection of minority shareholders' interest under Taiwan and China’s corporate law. With regard to the above issues, this study conducted the analysis through academic research and proposed the conclusion and suggestions in the end after the integration of different comments.

The degree to which a country’s public entities observe basic principles of good corporate governance is an increasingly important factor for attracting investment capital, maintaining economic stability and encouraging growth. Zimbabwe is faced with the challenge of restructuring for greater efficiency and creating an investment-friendly environment, therefore practicing good corporate governance in public entities is crucial for success and economic growth. As business entities, public entities need to be managed effectively by a competent board, which is able to construct and implement strategies that are in the best interests of the entity and all stakeholders. This study focuses on the corporate governance initiatives, laws and regulations aimed at enhancing the effectiveness of boards of public entities in Zimbabwe. The key question addressed is whether or not the corporate governance initiatives and legal and regulatory reforms in Zimbabwe are sufficient to enable boards of public entities to effectively discharge their duties and meet internationally accepted corporate governance standards. A comparative analysis of Zimbabwe’s public entities corporate governance framework to that of South Africa (a developing country like Zimbabwe) and Australia (a developed country with similar common law heritage) is also conducted. Recommendations are made on how best to enhance the effectiveness of boards of public entities in order to promote good corporate governance practices in Zimbabwean public entities. The research established that the existing corporate governance framework has not been effective in improving the effectiveness of Zimbabwe public entity boards due to lack of commitment and consistency, political interference, weak enforcement mechanisms, corruption and general disregard for the rule of law. The research found that South Africa and Australia have performed better than Zimbabwe in terms of creating conducive environments for boards of public entities to effectively discharge their duties. To improve the effectiveness of public entity boards, it was found that boards should be properly empowered, government intervention should be minimised, board appointment processes should be transparent and merit-based, boards should be properly composed, board remuneration should be fair and performance related, the performance of the board should be regularly evaluated and effective enforcement mechanisms should be put in place.
Mercantile Law
LL. D.

As a company is a juristic person it can only act through human agency. A question that arises because of this fact is under what circumstances a company can be held to a contract by a third party where its representative was unauthorised to enter into such contract. There should be a careful weighing and balancing of the interests of the shareholders and the company on the one hand and the contracting third party on the other. It is further important to have legal certainty on the validity and enforceability of contracts concluded by and with companies as the absence of certainty can hamper business dealings with companies which would have an impact on the economy. The common-law principles of agency form the foundation upon which representation within the context of company law takes place. The law of agency has been adapted in the context of company law to satisfy the unique needs that have originated in this regard. One such adaptation is the creation of the Turquand rule by the English courts which rule was taken over by the South African courts. One of the primary reasons for creating the Turquand rule was due to the harsh effect that the common-law doctrine of constructive notice had on third parties dealing with a company. In this study an examination of the current legal position regarding representation of a company in South Africa was undertaken. The history and development of the common-law principles of agency and doctrines that are unique to representation in a company law context are analysed and the relevant sections of the Companies Act 71 of 2008 are discussed. The integration of the common-law principles with the relevant provisions of the Companies Act 71 of 2008 is considered and recommendations are made in respect thereof. In support of the analysis, a comparative study was undertaken of the history and development of this subject matter in England. It was concluded that South African company law, with all its shortcomings and uncertainties is still to be preferred above the position in England.
Aangesien ‘n maatskappy ‘n regspersoon is, kan dit slegs deur middel van natuurlike persone as agente optree. ‘n Vraag wat as gevolg van hierdie feit ontstaan is onder watter omstandighede ‘n maatskappy deur ‘n derde party gebonde gehou kan word aan ‘n kontrak waar die maatskappy se verteenwoordiger nie gemagtig was om die kontrak aan te gaan nie. Daar behoort ‘n versigtige afweging te wees tussen die belange van die maatskappy en sy aandeelhouers aan die een kant en ‘n derde party wat met die maatskappy kontrakteer aan die ander kant. Dit is verder belangrik om regsekerheid te hê oor die geldigheid en afdwingbaarheid van kontrakte wat met maatskappye aangegaan word aangesien die afwesigheid daarvan besigheidsverkeer met maatskappye kan kortwiek wat ‘n impak op die ekonomie tot gevolg sal hê. Die gemeenregtelike beginsels van verteenwoordiging vorm die basis waarop verteenwoordiging binne die konteks van maatskappyereg plaasvind. Verteenwoordigingsreg is aangepas binne die konteks van maatskappye om voorsiening te maak vir die unieke behoeftes wat in hierdie verband ontstaan het. Een sodanige aanpassing is die skepping van die Turquand reël deur die Engelse howe, welke reël deur die Suid-Afrikaanse howe oorgeneem is. Een van die hoofredes vir die skepping van die Turquand reël is die onregverdige uitwerking wat die gemeenregtelike leerstuk van toegerekende kennis op derde partye gehad het wat met ‘n maatskappy onderhandel. ‘n Studie van die huidige regsposisie rakende verteenwoordiging van ‘n maatskappy in Suid-Afrika is hierin gedoen. Die geskiedenis en ontwikkeling van die gemeenregtelike beginsels van verteenwoordiging en leerstukke eie aan verteenwoordiging in die konteks van maatskappyereg is geanaliseer. Die betrokke artikels van die Maatskappywet 71 van 2008 word bespreek. Die integrasie van hierdie gemeenregtelike beginsels met die betrokke bepalings van die Maatskappywet 71 van 2008 is oorweeg en aanbevelings in verband daarmee gemaak. Ter ondersteuning van die analise is ‘n vergelykende studie van die gekiedenis en ontwikkeling van hierdie onderwerp in Engeland onderneem. Daar is tot die slotsom gekom dat die Suid-Afrikaanse maatskappyereg, met al sy tekortkominge en onsekerhede nogsteeds bo die posisie in Engeland te verkies is.
Mercantile Law
LL. M.

This research looks at the need and enforceability of legal warranties that companies include in contracts and/or public displays/notices to limit the company’s liability exposure to third parties. It also discusses the liability incurred by a company and that of its directors in their personal capacities (if any) should the legal warranty implemented be found to be unenforceable. The liability that may be incurred by the company and/or its director/s is dependent on whether the legal warranty which it implemented is enforceable or not and therefore it is important to establish what would constitute an enforceable legal warranty. In order to determine what is likely to constitute an enforceable legal warranty the study looks back at what has previously been deemed to constitute an unenforceable legal warranty. This is done by analysing the common law principles of contract, being the freedom to contract and the sanctity of contract, and its development in accordance with our constitutional dispensation through case law precedents. The provisions of the Consumer Protection Act 68 of 2008 that apply to legal warranties are also analysed in order to determine the anticipated outcome of future case law where the Consumer Protection Act 68 of 2008 may be applicable to a dispute involving legal warranties. Once what constitutes an unenforceable legal warranty is established, the study will discuss the legal position of a third party, and that of the company, where a third party has suffered damages as a result of the company’s acts or omissions and the company is unable to raise a legal warranty as a defence against such liability, as the legal warranty is found to be unenforceable. Thereafter the study will discuss the measures available to the company where the company is found liable to the third party for the aforementioned damages and the company wishes to mitigate its losses in this regard. Such measures shall include director insurance as well as the recovery of such liability against a director, in the director’s personal capacity, where the company either does not have director insurance or is unable to enforce the director insurance due to the actions of a director. In order to determine the director’s accountability to the company in this regard an assessment is made of the duties imposed on a director in terms of the common law and Companies Act 71 of 2008 to establish whether such duties are wide enough to include a duty on the director to ensure legal warranties he/she plays a part in implementing are enforceable.
Mercantile Law
LL. M. (Corporate Law)