Die Corporate Governance der Bankaktiengesellschaft

The regulation of banks' internal corporate governance is characterized by an interplay between banking supervisory law and corporate law. This book examines the resulting special corporate law of banks from a legal-doctrinal and functional-economic perspective. First, the economic specifics of the corporate governance of banks are examined. Then, the current legal framework is analysed and the corporate objective of banks – as a guiding principle for directors’ duties – is determined. Finally, the special corporate law of banks is subjected to a functional analysis against the backdrop of the regulatory objectives – risk prevention in the public interest – and corresponding reform proposals are made.

Digitalization of Institutions of Corporate Law: Current Trends and Future Prospects

Digital technologies have been integrated into all aspects of public life, including politics, law, finance, business, education, science, and society. As a result of the use of digital technologies by various subjects, a transformation has occurred of the economic relations existing in society, including corporate relations. This study analyzes the impact of digitalization on individual institutions of corporate law. The authors investigate the following aspects of the digitalization of corporate law: (1) digital legal personality of the corporation (online registration (e-residency) of corporations and the digital footprint that companies leave in public registers); (2) digital corporate governance; and (3) digital (network or decentralized) autonomous organizations. The purpose of this research is to identify trends and directions of transformation of individual institutions of corporate law in a digital society. The authors conclude that the digitalization of institutions of corporate law will result in: (1) the reinterpretation of certain concepts of corporate law, such as corporation and corporate governance; (2) the improvement of the legal mechanisms of corporate governance following the introduction of AI into the collegial executive bodies of corporations; (3) the digitalization of corporate assets; and (4) the emergence of new subjects of corporate and other relevant relations.

Accent Bias and Perceptions of Professional Competence in England

Unequal outcomes in professional hiring for individuals from less privileged backgrounds have been widely reported in England. Although accent is one of the most salient signals of such a background, its role in unequal professional outcomes remains underexamined. This paper reports on a large-scale study of contemporary attitudes to accents in England. A large representative sample ( N = 848) of the population in England judged the interview performance and perceived hirability of “candidates” for a trainee solicitor position at a corporate law firm. Candidates were native speakers of one of five English accents stratified by region, ethnicity, and class. The results suggest persistent patterns of bias against certain accents in England, particularly Southern working-class varieties, though moderated by factors such as listener age, content of speech, and listeners’ psychological predispositions. We discuss the role that the observed bias may play in perpetuating social inequality in England and encourage further research on the relationship between accent and social mobility.

Business, Human Rights and the Environment—Using Macro Legal Analysis to Develop a Legal Framework That Coherently Addresses the Root Causes of Corporate Human Rights Violations and Environmental Degradation

This article applies ‘macro’ legal analysis to the challenge of legal reform related to corporate responsibility for human rights violations and degradation of the environment. It recognises that the approaches from different communities of lawyers to the negative impacts on human rights and the environment caused by companies, sometimes operate in isolation from each other, are not always mutually supportive, can lead to a fragmentation of effort, and may not address the root causes of the problem. In particular, this article analyses the extent to which existing approaches tend to address symptoms of the issues, rather than the root causes themselves. It makes the case that in this regard specific root causes exist within the frameworks of corporate law in all jurisdictions and various aspects of international economic law too. To carry out the study, it employs macro legal analysis, a methodology not previously applied in this field, as a means of developing an understanding of the legal frameworks that, it argues, influence corporate decision making that can affect human rights and the environment. It undertakes an analysis that incorporates relevant corporate law, World Trade Organisation (WTO) law, international investment law, the law relating to multilateral development banks (MDBs), and international insurance law. By using this form of anlaysis it is possible to show how legal frameworks can operate in unison, reinforcing each other providing a cumulative effect that can influence corporate decision makers. Finally, based on the results of the analysis, it suggests a possible strategy of macro-level reforms that could be applied to the re-design of relevant legal frameworks to better facilitate the full protection of human rights and to achieve net zero degradation of the environment. As a result it seeks to demonstrate how this approach can be strategically applied by both human rights and environmental lawyers as a common pathway towards effective legal reform.

Menstrual Capitalism, Period Poverty, and the Role of the B Corporation

This Essay considers the profit to be made in virtue signaling solely for the purpose of attracting customers and driving sales: Pro-female, woke menstruation messaging that may merely be an exploitative and empty co-optation. Feminists should expect more of menstrual capitalists, including a commitment that firms operating within this space address the diapositive issue of period poverty and meaningfully assist those unable to meet basic hygiene needs who may never be direct consumers. This Essay serves as a thought piece that first presents, in Section I, the B Corporation as a relatively new direction in corporate law that redefines the corporation as a potential agent of social change. Section II considers the way in which B Corporation certification may serve as an implicit sorting device to distinguish companies performing hollow virtue signaling from those menstrual capitalists committed to socially responsible pro-female business practices.

Companies and the Constitutional ‘Right to Life’: A Critical Analysis of the Companies Act 71 of 2008

Corporate law is founded on the fictitious principle of the separate legal personality of a company. This principle entails that a company is a juristic person, separate and distinct from any persons involved with the company. Because of their juristic nature, companies can acquire rights and incur liabilities in their own capacity. This corporate-law principle is rooted in section 8(4) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) which expressly provides the Bill of Rights applies to juristic persons subject to the stated considerations. The fact that companies as juristic persons, similar to natural persons, are entitled to the rights and freedoms contained in the Bill of Rights reveals that the Constitution recognises companies as ‘persons’. In this light, the article investigates how the Companies Act 71 of 2008 (hereafter the Companies Act) has embraced the constitutional right to life of companies as juristic persons as provided for in section 11 of the Constitution. To achieve this aim, the author applies the doctrinal legal research methodology – a legal research model which entails an examination of so-called ‘black-latter law’ with the Companies Act being the principal instrument. The results show that, although companies to do not enjoy the right to life in the same manner as natural persons, the literature examined reveals that the Companies Act recognises company’s constitutional right to ‘life’. In many instances, the right to continued existence of companies is promoted in various ways, including the introduction of the novel concept of business rescue by the Companies Act as a way of promoting the right to ‘life’ of companies. Received: 20 August 2021 / Accepted: 7 October 2021 / Published: 5 November 2021

Shareholder Oppression as Corporate Conduct Repugnant to Public Policy: Infusing the Concept of Ubuntu in the Interpretation of Section 163 of the Companies Act 71 of 2008

The concept of ubuntu continues to exert considerable influence on the development and the general application of post-independence jurisprudence in South Africa. While ubuntu undoubtedly permeates the interpretation of a plethora of contemporary legal disciplines in South Africa, this article contends that the reception of the concept in corporate law remains constrained. Identifying shareholder relationships as an important feature of the corporate firm, the author presents a persuasive case for the infusion of ubuntu and its underlying equity considerations in the interpretation of the oppression remedy which is currently provided under section 163 of the Companies Act 71 of 2008. The article discusses the remedy from different legal perspectives which find synchrony in the concept of ubuntu. The contribution adds to emerging legal scholarship advocating the alignment of South African corporate law with constitutional principles.