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9 - Embedding the Multi-Factoral Approach in Corporations: The Role of Corporate Law

from Part III - The Institutional Implications of the Multi-Factoral Approach

Published online by Cambridge University Press:  29 October 2021

David Bilchitz
Affiliation:
University of Johannesburg
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Summary

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

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Publisher: Cambridge University Press
Print publication year: 2021

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