Does the directors' fiduciary duty to act in the best interests of the company undermine other stakeholders' interests? : a comparative assessment of corporate sustainability
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: 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.
- Full Text:
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: 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.
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Reconfiguring international pharmaceutical patent protection principles to combat linkage evergreening :|b'de-linking the evergreen' and proposing a solution for developing countries
- Authors: Omino, Akinyi Melissa Anne
- Date: 2016
- Subjects: Patent medicines--Developing countries Drugs--Developing countries Patent laws and legislation--Developing countries
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/11663 , vital:39094
- Description: Recent remarks made by the current South African Minister of Health describing as a plot to ‘genocide’ a leaked document allegedly authored by a group of multinational pharmaceutical companies in response to the country’s Draft IP Policy is evidence of the importance of both pharmaceutical patents and the national intellectual property policies underpinning their legislative landscape. The proliferation of linkage evergreening provisions through multilateral agreements has also recently become a trend globally. Evergreening has been described as the various ways in which pharmaceutical patent owners use the law and related regulatory processes to extend the patent term of their high profit-making pharmaceuticals. The evergreening phenomenon has also been referred to as patent evergreening, which involves the practice of obtaining multiple patents that cover different aspects of the same product. Linkage evergreening however specifically refers to the phenomenon where generics pharmaceutical manufacturers cannot receive regulatory approval or marketing authorization for developing a pharmaceutical product that is still protected by a patent. The evergreening phenomenon is achieved through Free Trade Agreements (FTAs) which require participating nations to incorporate linkage and other intellectual property provisions in their national patent systems in exchange for preferential trade terms. These agreements generally provide for stronger provisions than the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and are thus referred to as “TRIPS Plus". Not surprisingly, these “TRIPS Plus” FTAs are negotiated outside the purview of the World Trade Organization (WTO). This thesis examines the role, legality and impact of bilateral free trade agreements which include wide ranging provisions that allow the proliferation of linkage evergreening and thereby frustrate and delay generic medicines’ market entry, prolong and expand patent protections and constrain the exercise of TRIPS flexibilities intended to support access and promote public health. The free trade agreements discussed include the North American Free Trade Agreement (NAFTA), the US - Australia Free Trade Agreement (AUSFTA) and the US - Korea Free Trade Agreement (KORUSFTA). This study also examines the Economic Partnership Agreements (EPAs) in the context of access to medicines and linkage evergreening in developing countries and LDCs in Africa, with a focus on the recently concluded EU – SADC EPA and the EU-EAC EPA still under negotiation. Relevant legislation, policy documents and case law from South Africa, India, the EAC and ARIPO are also explored in this study to gauge their potential to effectively address the challenges of access to medicines and evergreening. This thesis offers a solution to evergreening through the recommendation of guidelines which show law and policy makers how to curtail linkage evergreening. More specifically, it is hoped that the said guidelines as well as the discussion and analyses presented in this thesis will assist in the development of national and regional intellectual property policies, amendment of national and regional legislative instruments as well as the negotiation of regional trade agreements aimed at securing the interests of LDCs and developing countries. It is further hoped that the recommendations made will contribute to ongoing efforts to improve access to affordable medicines in the developing world.
- Full Text:
- Authors: Omino, Akinyi Melissa Anne
- Date: 2016
- Subjects: Patent medicines--Developing countries Drugs--Developing countries Patent laws and legislation--Developing countries
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/11663 , vital:39094
- Description: Recent remarks made by the current South African Minister of Health describing as a plot to ‘genocide’ a leaked document allegedly authored by a group of multinational pharmaceutical companies in response to the country’s Draft IP Policy is evidence of the importance of both pharmaceutical patents and the national intellectual property policies underpinning their legislative landscape. The proliferation of linkage evergreening provisions through multilateral agreements has also recently become a trend globally. Evergreening has been described as the various ways in which pharmaceutical patent owners use the law and related regulatory processes to extend the patent term of their high profit-making pharmaceuticals. The evergreening phenomenon has also been referred to as patent evergreening, which involves the practice of obtaining multiple patents that cover different aspects of the same product. Linkage evergreening however specifically refers to the phenomenon where generics pharmaceutical manufacturers cannot receive regulatory approval or marketing authorization for developing a pharmaceutical product that is still protected by a patent. The evergreening phenomenon is achieved through Free Trade Agreements (FTAs) which require participating nations to incorporate linkage and other intellectual property provisions in their national patent systems in exchange for preferential trade terms. These agreements generally provide for stronger provisions than the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and are thus referred to as “TRIPS Plus". Not surprisingly, these “TRIPS Plus” FTAs are negotiated outside the purview of the World Trade Organization (WTO). This thesis examines the role, legality and impact of bilateral free trade agreements which include wide ranging provisions that allow the proliferation of linkage evergreening and thereby frustrate and delay generic medicines’ market entry, prolong and expand patent protections and constrain the exercise of TRIPS flexibilities intended to support access and promote public health. The free trade agreements discussed include the North American Free Trade Agreement (NAFTA), the US - Australia Free Trade Agreement (AUSFTA) and the US - Korea Free Trade Agreement (KORUSFTA). This study also examines the Economic Partnership Agreements (EPAs) in the context of access to medicines and linkage evergreening in developing countries and LDCs in Africa, with a focus on the recently concluded EU – SADC EPA and the EU-EAC EPA still under negotiation. Relevant legislation, policy documents and case law from South Africa, India, the EAC and ARIPO are also explored in this study to gauge their potential to effectively address the challenges of access to medicines and evergreening. This thesis offers a solution to evergreening through the recommendation of guidelines which show law and policy makers how to curtail linkage evergreening. More specifically, it is hoped that the said guidelines as well as the discussion and analyses presented in this thesis will assist in the development of national and regional intellectual property policies, amendment of national and regional legislative instruments as well as the negotiation of regional trade agreements aimed at securing the interests of LDCs and developing countries. It is further hoped that the recommendations made will contribute to ongoing efforts to improve access to affordable medicines in the developing world.
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The legal protection of foreign direct investment in the new millennium :a critical assessment with a focus on South Africa and Zimbabwe
- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
- Full Text:
- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
- Full Text:
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