Filip Gregor
Head of the Responsible Companies Team
We are at a moment in history when we need our corporate businesses more than ever to help us cope with the challenges ahead. We, as a society, though, need to be clear in our understanding of the basis upon which society grants the privileges that now accompany the modern corporate form.
The maximising shareholder value theory, that came to dominate our thinking and policy-making in last several decades, has been linked, as a causative factor, to the recent financial crises. It has been blamed for some of the worst excesses in corporate behaviour, and academics are now broadly questioning the basic tenets upon which it was built. Policy makers are alive to one of its manifestations, short-termism, and are seeking ways to mitigate that type of thinking. A problem in that regard is that they often simply seek to fix the problem by deploying solutions which serve to further entrench shareholder primacy. They never think to ask the fundamental question: "Does this paradigm actually work?"
The reason that the notion that the purpose of the corporation is to create wealth for shareholders is so problematic is concisely set out in the work of Law Professor, Joel Bakan. Professor Bakan argues that:“Corporations are created by law and imbued with purpose by law. Law dictates what their directors and managers can do, what they cannot do, and what they must do. At least in the United States and other industrialized countries the corporation, as created by law, most closely resembles Milton Friedman’s ideal model of the institution [one in which the only social responsibility of business beyond obeying the law is to increase its profits]: it compels executives to prioritize the interests of their companies and shareholders above all others and forbids them from being socially responsible-at least genuinely so”.[1]
There is now ample evidence that the shareholder value paradigm is flawed economically, legally and socially. What is lacking is a platform for the development of a coherent vision for a new paradigm of corporate governance which will be more beneficial for society than the present one but which will still allow corporations to remain profitable, to provide jobs and innovative solutions to society’s growing needs. In order for such a beneficial paradigm shift to occur in this area there will need to be collaboration between academics (across a number of disciplines), business leaders, policy makers and civil society.
The Environmental Law Service therefore launches the Purpose of the Corporation Project which aims to create a safe and apolitical space for the relevant actors to explore these important issues.
A key challenge, in this process of consideration, will be avoiding the exercise simply dividing along political/ideological lines. The major questions will include:
For more information, please see the attached document.
Endnotes:
[1] Bakan, J. (2005). The Corporation. London: Constable & Robinson. p. 35.
New reporting rules require certain large EU companies to include in their management report a non-financial statement. These companies need to begin gathering and auditing information in order to be prepared to publish the required information within good time after the end of the 2017 financial year. Frank Bold recently published a short guide on the Non Financial Reporting Directive that identifies who will be affected and explains how to comply with the new reporting requirements.
On September 28, Frank Bold will hold the Creating Sustainable Companies Summit gathering leading thinkers, businesses, policymakers and civil society in Brussels to chart the way to the next generation of corporations and future of corporate governance.
The Brussels office of the public interest law firm Frank Bold is currently recruiting a Legal Research Intern to start immediately full-time, for a period of two months, with the possibility of a four-month extension.
