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This chapter considers rules applicable in the UK to shareholders exercising power in their own interests, rather than the interests of the company, and asks whether these create any problems for private equity investors, in theory and in practice. It also looks at other ways in which shareholders and directors can be held liable for the actions of their companies, including Bribery Act rules, health and safety laws, competition law rules and tortious liability.
This chapter examines how the duty of directors to act in good faith in the best interests of the company could be used to promote sustainability in the four Asian jurisdictions. Forceful critiques have been put forward that shareholder primacy – often defined as the maximisation of share price – is a considerable impediment to promoting sustainability.
Chapter 2 analyses sociological and psychological research pertaining to same-sex parenting. This chapter builds on as it uses the relevant research to guide the application of the best interests principle. This research is used to inform the demands of the principle and to reduce the indeterminacy and subjectivity of decision-making as it relates to the children of gay and lesbian families. Existing sociological and psychological studies are assessed to determine whether children’s best interests can be served by same-sex parents and, consequently, whether legal recognition of these family relationships is desirable. This approach is also used to assess the application of specific laws in terms of their impact on the best interests of the child.
This chapter sets out the importance of a children’s rights focused inquiry into the human rights obligation of business enterprises by drawing insights from various disciplines, including philosophy, psychology, sociology and medical sciences. It sets out childhood as a stage of rapid development, the disproportionate and different effects of harms during childhood and children’s rights as a remedy to children’s invisibility, lack of public voice and consultation. The characteristics of a children’s rights focus for businesses as human rights duty-bearers are sketched out and linked to the so-called general principles of children’s rights.
The chapter considers the impact on family law of adopting the concept of the relational self. In particular, it explores the role of family law, the definition of families, financial orders on separation, the definition of parenthood, the concept of parental responsibility and the nature of children's welfare. It explores how a relational self model would ensure that family law protected and promoted valuable relationships.
This chapter considers how adopting a model of the relational self might impact on medical law. In particular, it considers how the issues of ownership of bodies and bodily material; the concept of mental capacity; the law's understanding of best interests; and the notion of personhood would be affected by understanding the self in a relational way.
Who should have the ultimate say over a child's medical treatment? A series of high-profile withdrawal of care cases have highlighted the full extent of the courts’ authority to make decisions on behalf of children in the medical context. In both the Charlie Gard and Alfie Evans litigation, the courts have made clear that they have the power to make medical decisions for children at the point that child's welfare is engaged. All courts involved in both cases affirmed the orthodox position that the threshold for judicial intervention in disputes about medical care of children is the welfare of the child, often referred to as the “best interests” approach (referring to both the threshold and the test applied to determine what should be done). While no new point of law has been decided in these cases, they are important in that they confirm just how expansive the inherent jurisdiction of the courts in such cases is, extending as far as to prevent parents from removing their child to another jurisdiction to pursue alternative treatment. In this paper, we argue that the current threshold for intervention is too low. We argue that prima facie decision-making authority about a child's medical care should rest with the child's parents, affording them the ability to choose between the range of medical options available. This authority should yield only where the parents’ decision carries a “serious risk of significant harm” to the child, at which point the court then has the authority to intervene. When it does so, the court should then apply the best interests approach.
This article reviews a 2017 Court of Protection case which assessed and decided issues relating to the Islamic faith and the Mental Capacity Act 2005. The case involved a 39-year-old Muslim man with learning difficulties. It centred on his ability to make decisions about two specific aspects of his faith – capacity for fasting and for the removal of pubic and axillary hair. The judgment describes how s.4 of the Act was applied in deciding these decisions under the doctrine of best interests. In doing so, it elucidates key principles which can be applied to similar cases of this and other faiths.
The best interests rule – the central fiduciary duty of company directors in a number of common law jurisdictions – encapsulates loyalty between director and company. Its multifaceted nature means that it is employed to impose a number of requirements, as demonstrated in the multi-jurisdictional analysis in this article. Contemporary commentary and cases (such as Moulin Global Eyecare Holdings Ltd. v Mei (2014) 17 HKCFAR 466, recently analysed in this Journal) have, however, doubted the fiduciary classification of the rule. This article defends the rule's fiduciary classification. After examining key facets of the rule, it demonstrates that, although flexible, the rule cannot be stretched to protect stakeholder interests independently of corporate benefit.
Use of the best-interests test as the legal standard to justify medical treatment (or its cessation) in respect to legally incompetent adults or minors has come under sustained critique over the years. “Best interests” has variously been alleged to be indeterminate as well as susceptible to majoritarian ideology and inherent bias. It has also been alleged to be inferior to rights-based approaches. Against the background of several particularly hard cases involving minors discussed by Gillett in a prior article in this journal, this article considers some of these critiques. It concludes that these critical accounts make significant contributions to enabling a more procedurally and substantively robust consideration of what might be in a child’s best interests. However, it is argued that none of these accounts alone provide a superior framework that would justify jettisoning the concept of best interests. Further, it is suggested that best interests still has an important role in achieving patient-centered decisionmaking in this context. It concludes by suggesting a taxonomy of considerations when determining best interests.
The Convention on the Rights of the Child, and the best interests principle codified in Article 3 in particular, is playing an increasingly significant role in decisions involving the admission or removal of a child from a host State. This article examines the extent to which the best interest principle may provide an independent source of international protection. That protection may, for instance, proscribe the removal of a child from a host State notwithstanding that the child is ineligible for protection as a refugee or protection under the more traditional non-refoulement obligations in international human rights law.
What would Terri Schiavo have wanted? That remains an unanswered
question for many who followed the media frenzy that attended the
extraordinary court and legislative battles that preceded her death 13
days after her feeding tube was removed for the last time. What would she
have directed her physicians to do if she had “miraculously”
regained capacity and awareness of the consequences of her cardiac arrest
that left her in a persistent vegetative state? Who would she have wanted
to make that decision for her if she were unable to do so? How are we to
understand the meaning of statements that she purportedly made about
life-sustaining treatments approximately 20 years ago, and how can we
apply them to the current situation? This article reflects on those
questions from the perspective of two small exploratory studies. These
studies considered the meanings and interpretation of statements by
terminally ill patients concerning desire for hastened death and the
relevance of previously made statements to their current clinical
The concept of the best interests of the child pervades legislation to do with children and guidelines for psychological assessment. In this paper, we critically evaluate the way that courts and psychologists employ this concept of the best interests of the child. Difficulties in operationalising the concept are explored. Cultural biases are identified. Procedures to minimise individual and cultural biases and to make the process more transparent are proposed.