Abstract

The current socio economic business model creates an overabundance of wealth for businessmen, shareholders and CEOs. Scarcity of natural resources necessitate the role of corporations to go beyond stakeholder capitalism prevalent in the Environment, Social and Governance (‘ESG’) policy today. The reasons behind social disorder, energy crises and corporate bank failures are ‘as clear as day’ yet perpetually unseen by a few. This dissertation examines whether it has now become imminent to impose an affirmative duty of ‘Consumer Wealth Maximisation’ as an integral part of the corporate purpose in the global context. The socio-legal method of research would be conducted, relying on primary and secondary sources in comparative international jurisdictions to identify whether the relevant private and public regulatory authorities are fit for purpose to implement the central ideas of this dissertation.

Key words: consumer welfare, corporate governance, shareholder primacy, stakeholders, ESG, affirmative duty, corporate purpose.

Introduction

The world yearns for real, sustainable and permanent change. A change in the way we conduct business, treat the environment and build a better future for the coming generations. Governance can aid the corporation[2] to become a source of benefit to society and diminish the likelihood of harm caused to its citizens. Initially, formed in Ancient Rome, as a ‘societas publicanorum’, to contract public services due to the distrust of the ancient roman bureaucrats.[3] The corporation possessed a distinct legal personality but has endured political upheaval,[4] economic misconceptions[5] and divergent legal theories[6] impacting its illusory corporate purpose in society.

In 2018, Professor Colin Mayer in his highly influential book, Prosperity,[7] draws an analogy between the ages of the corporation with Shakespeare’s seven ages of man.[8] The corporation has entered its sixth age as a ‘mindful corporation’ adopting to fundamental shifts in its nature from public to private, to family, to stock-market listed, to international organisation.[9] The realm of corporate power has expanded beyond the expectations of Adam Smith, who doubted the functionality and management[10] of the joint-stock company predicting its premature death which never occurred.[11] Today, the ‘grocery store is larger than the government’ but it arguably does not owe any corporate duties to the public.[12] The corporation is an extraordinary institution with immense potential to create remarkable benefits.[13] It is the organisation that provides us with employment, delivers new technologies, fulfils our desires, and provides sustenance for millions of households. In parallel, it is the ‘source of inequality, deprivation and environmental degradation’.[14]

The orthodox shareholder primacy model has been rejected across the Atlantic but the alternatives to solve the ultimate issues related to prosperity and consumer welfare need further examination. The citizen has merely become a consumer with no active participation in the decision making process. The consumer is deprived due to profit maximisation at each stage of the interaction between the individual, state and the corporation. 

This dissertation argues that the global corporate governance framework has to impose an affirmative duty of consumer wealth maximisation through prescriptive mandatory rules and best practices to redefine the corporate purpose on an immediate basis. Any legal or economic theory is not codified in the regulatory framework but shareholder primacy has become the de facto mens rea[15] for corporate control and disregard of consumer welfare.[16] In fact, academics see this interaction between economics and law as an opportunity to build a new corporate purpose that may lead to global prosperity.[17]

Initially, chapter one will discuss the geopolitical transformation of the global financial markets and trace the origins of the modern regulatory framework for corporate governance since publication of UK’s Cadbury report[18] and the US Sarbanes-Oxley Act.[19] Particularly, influence of the neoclassical economists, shareholder primacy theory[20] and stakeholder theory,[21] in the legal and economic paradigm would be elaborated to assess the role of corporations in reforming society and its impact on the welfare of the consumer.

Thereafter, the rise of ‘Big-Tech’ corporations post the fourth industrial revolution and the corporate governance failures coinciding with the ‘Dot-Com’ bubble crash would be explained. Finally, the battle for consumer protection, led by Lina Khan, current chair of the Federal Trade Commission (‘FTC’) and the recent prominent developments of the EU competition commission would be highlighted.

 Chapter two will critically analyse the Environment Social Governance (‘ESG’) criteria that has become an integral part of the corporate governance reporting standards. Subsequently, against the backdrop of environmental calamities caused by corporations, the importance of ESG activism, through institutional investors and asset managers would be deliberated.

Thereafter, it will be argued that an affirmative duty of consumer wealth maximisation must be imposed on global corporations beyond the perfunctory ESG model. The global corporations are compelled to calculate unaccounted loss and relinquish profits by legal, corporate governance and public-private sector reforms in the interest of the consumer. Specifically, the distinction between costs and profits is demonstrated to clarify the meaning of ‘fake’ and ‘fair profits’ in terms of ESG. Finally, the recent debate between Mayer and Davies on implementation of the corporate purpose is discussed.

Chapter three will initially propose the agenda of change and propose specific recommendations for judicial reform applicable to both Global North and South corporations. Three sets of reforms addressing welfare creation, climate change and responsible management & control of the corporation would be specified. Thereafter, the German codetermination system, Public Benefit Corporation (‘PBC’) and case studies of the Mars catalyst think tank would be discussed. The requirement of new global standards for sustainability and ring fencing public infrastructure projects in the light of establishing trust would also be argued. Finally, based on the research and findings of this dissertation a conclusion would be provided.

Chapter 1.   Evolution of the Corporate Purpose

A. The role of corporate governance to reform society

 I. Corporate governance framework

The development of the corporate governance framework is examined to highlight the significant legal and economic influences on the draftsman. According to Katelouzou and Zumbansen, the emergence of corporate governance as a subfield of corporate law cannot be understood without considering the ‘larger institutional and geopolitical transformation since the 1974 oil crisis, end of the Bretton Woods system, and the unfolding of global financial markets’.[22] In their opinion, welfare state regimes were transitioning to a large scale delegation of public services and responsibilities to the private sector, therefore the corporation became a key institution in this context. By the 1990s, the redistributive functions of the state, established during the ‘New Deal’ and expanded during the ‘Great society, had steadily shrunk, particularly in the US and the UK.[23] Policy makers remained reluctant to introduce mandatory provisions in the field of corporate governance, instead softer regulatory strategies were adopted that ‘nudge’ different corporate actors, including managers, shareholders, and to some extent, other stakeholders.[24]

The influential 1992 Cadbury code defines corporate governance as the ‘system by which companies are directed and controlled’.[25] The ‘comply or explain’ principle, specified therein, has since been exported to the European Union (‘EU’), Asia, Australia, Mexico, Canada and to a limited extent the United States (‘US’).[26] Subsequently, the Code of corporate governance in the UK[27] and the EU,[28] the stewardship codes[29] for institutional investors and codes of conduct for international organisations demonstrate a growing consensus of an indirect self-regulatory approach towards regulation.[30] In the US, the Sarbanes-Oxley Act of 2002, mandated strict reforms to the existing securities regulations, largely, public listed firms comply with default rules, issued by NASDAQ and NYSE related with director independence, board composition, regulation of ‘dual-class’ stocks and special voting rights.[31]

Katelouzou and Zumbansen further observe that, ‘non-statist’, ‘non-binding’, ‘soft-law’ techniques are distinctive features of these corporate governance codes with a scope for flexibility and opt-out.[32] While the corporation generally is protected from proactive legal intervention by the state, the times of financial or socio-economic crisis pose a challenge. The economic downturn, during the 2007-2008 financial crisis[33] and the Covid-19 pandemic attracted a public backlash against ‘fat cats’[34] and other ‘corporate excess’ or scandals which become the focus of stricter regulation on a temporary basis. The debate between ‘law’ and ‘norms’, ‘soft-law’ and hard-law’,[35] or the separation between law and morality[36] remain a continuing discussion in corporate governance. The persuasive argument remains in favour of the ‘enabling’ rather than ‘mandatory’ form of corporate governance.

However, it seems puzzling that corporate law is distanced from the corporation’s actual life and impact on society, except where the interest of the shareholder is at risk due to a director’s business judgement[37] or in relation to the technicalities of a merger.[38] Katelouzou and Zumbansen argue that the corporation lives in a world of largely abstract jurisprudence, influenced by ‘crude rudimentary economics’ which requires a closer scrutiny of how ‘theories, doctrines, and policies of corporate law and corporate governance depict the corporation’.[39]

 II.  Economic theory of the firm

The economic theory looks at the best methods of allocating available resources to reach efficiency, unlike moral or normative concerns which are associated with legal jurisprudence. The neoclassical view of the firm is founded on a theory of equilibrium achieved in markets characterised by perfect competition,[40] based on the Pareto[41] optimality a ‘state of affairs where resources cannot be reallocated so as to make one person better off without making someone else worse off’.[42] Allocative and productive efficiency is used to determine when a particular type of conduct or institution is justifiable.[43] Broadly, Neo-classicists study the firm by using three theoretical assumptions,[44] first, that distribution of production factors within the firm is according to the classical price theory, which also applies to market coordination.[45]

It is pertinent to note, that in such a scenario, the role of management, if any, is passive rather than active. Second, relying on the classic axiom that all economic actors seek to maximise profits, the single minded objective of the firm is profit maximisation.[46] Additionally, the relation between ‘short term’ and ‘long term’ profits is ‘harmonious and firms pursue their goals without being conscious of other firms’ reactions.[47] Third, according to the ‘global rationality’ assumption the firm operates in perfect certainty with full knowledge (present and future) of circumstances affecting its operations.[48] The lack of ‘informational asymmetry’ excludes any uncertainties or externalities and enables the firm to make rational decisions in line with the goal of profit maximisation.

Furthermore, any alternative strategies are compared and evaluated with certainty so that the most suitable profit maximising option may be chosen.[49] Dignam and Galanis conclude that ‘Neoclassicism is antithetical to the regulation of corporate activity’ by the state or any other regulator in favour of a laissez-faire[50] approach.[51]  

III.   Birth of Managerialism

The second industrial revolution required large scale Public-Private Partnerships (‘PPP’) for the establishment of infrastructure for utility ventures, such as railways, the telegraph and mining. The managerial firm emerged in the late 19th century as one of the ‘by-products’ of the industrial revolution.[52] Large corporations changed the nature of management from the owner-entrepreneur model to one with a managerial hierarchy and an extensive salaried workforce with limited capital. Chandler claimed that the ‘visible hand’ of the managerial hierarchy replaced the ‘invisible hand’ of Adam Smith’s market.[53]

Berle and Means published ‘The Modern Corporation and Private Property’, the first systematic study on the separation of ownership and control.[54] A company could either be viewed as a real entity, a natural person with its separate legal rights and interests or in the nominal sense, it would seem like a legal object. Advancing the real entity view, the Aggregate theory, originally developed by 19th century European theorists von Jhering and de Vareilles-Sommieres considered only human beings as the ‘real persons’ with the ability to be legal subjects.[55] Contrarily, the Corporate Realism theory advocated by German scholar Otto von Gierke. Argued that the entity was not a ‘legal fiction’ but a real person independent from its members.[56]  

Berle and Dodd scrutinized the dilemma of separation of ownership and control,[57] Dodd approached the trade-off between individualism and collectivism through the inclusion of Corporate Social Responsibility (‘CSR’) in the realism doctrine. Successively, Ronald Coase in his famous article ‘The Nature of the Firm’[58] evaluated the firm’s nature by looking at the reasons for intra-firm as opposed to market coordination.[59] He introduced the concept of ‘marginal costs’[60] which arise from drafting, negotiating and enforcing contracts because natural prices of goods are not automatically known to the transacting parties. The firm could now be seen as a hierarchical structure with a series of relationships, directing resources by the entrepreneur.[61]

Since the ‘Coase theorem’ of marginal costs scholars began to develop models of the firm primarily focused on efficiency and its role as a device to minimise transaction costs within production processes.[62] This line of thought was further refined by Jensen and Meckling[63] who expanded the ‘nexus of contracts’ or ‘Contractarian theory’ by providing explanations about manager’s motivation reinvigorating the orthodox economic analysis. Earlier, Alchian and Demsetz,[64] asserted that the firm itself is a market and therefore, the management function is reduced to a mere contract renegotiation process. In their opinion, no ‘hierarchy or authority-based relationships’ exist within the firm.[65]

In Mayer’s opinion economists have since been ‘fixated with only one aspect of the firm’, the ‘Agency problem’, aligning the interest of managers running the firm with their shareholders.[66] The principal-agent relationship relies on the assumption that because all individuals want to maximise their utility, agency costs are to be minimised because the agent will not act in the interest of the principal.[67] Therefore, the role of management (managerial input as a commodity) is limited to prevent undervaluation of the firm to prevent a hostile takeover and avoid their own replacement due to poor performance.[68] In the context of modern corporate governance standards in the Global North,[69] this is done by ex-ante monitoring through the use of audits, independent directors, incentive compensation schemes etc.[70]

 IV.         Shareholder primacy vs. Stakeholder theory

The ‘nexus-of-contracts’ model legitimises the idea of shareholder wealth maximisation, asserting that only people have responsibilities rather than corporations as fictional entities.[71] The role of law is also limited to provide contractual terms to reduce the agency costs. The notion that market forces and individual choice determine efficiency also obviates the need for mandatory corporate law.[72] Since the late 1970s, politicians adopted deregulatory policies and the primary aim of corporations became the increase in shareholder value and profit maximisation.[73] Resultantly, various statutes, rules, and codes that now make up the body of corporate law are enshrined in the western democratic model based on political and economic liberalism.[74] The economic agenda of privatisation and removing capital controls in the Reagan and Thatcher era were in the wake of political crises. The successive oil crises[75] and end of the Bretton Woods agreement[76] welcomed a new wave of shareholder primacy in the United States as well as in Britain. Therefore, the shareholder lies at the heart of the corporation based on the assertion that shareholders own the corporation and hire managers to run it for them.[77] In UK, the Hutton case[78] of 1883, and the Greenhalgh case,[79] are often cited to affirm the shareholder primacy theory. In Dodge v Ford Motor Company, a US case of 1919, it was held that ‘A business corporation is organised and carried on primarily for the profit of the stockholders’.[80]

Milton Friedman in his book, Capitalism and Freedom[81] and later in the infamous ‘New York Times’ article, titled ‘The Social Responsibility of Business Is to Increase Profits’[82] presented the ‘Friedman doctrine’, which completely resurrected the neoclassical free market enterprise in the interest of the shareholder. In Friedman’s words:

There is one and only one social responsibility of business- to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.

The Friedman doctrine has been ‘a powerful concept which has defined business practice and government policies around the world’ for half a century.[83] Mayer identified the fundamental defect in the Friedman doctrine to be the ‘unrelenting pursuit of profits’ to maximise shareholder value at all times, ‘intensified by the fear instilled in corporate boards by hostile takeovers and short-term institutional activism’.[84]

In summation, shareholder interest is prioritised in board decision making and a high degree of direct accountability is enforced through strong shareholder governance.[85] Professor Lucian Bebchuk, argues that ‘stakeholderism’, is only an enlightened form of ‘shareholderism’.[86] However, Mayer, skilfully refutes this viewpoint by laying emphasis on corporate purpose and value as yardsticks that must be set for managing directors to attain long term success.[87]

In broad social terms, the ‘Stakeholder theory’ can be traced back to the German sociologist Althusius,[88] however it became a concern for E. Merick Dodd in his verbal battles with Adolf Berle in the 1930s.[89] Dodd identified that advancing the interest of stakeholder groups, such as the customers, employees and community seemed to be less abnormal than shareholder primacy.[90] In recent times, the theory developed after the publication of Edward Freeman’s seminal book, ‘Strategic Management: a stakeholder approach’,[91] as a call for rethinking of business organisations. Essentially, it is ‘a theory of organisational management and ethics’, highlighting the inherent value of stakeholders to the corporation and calls for ‘appropriate treatment in the management of the affairs of the corporation’.[92]

The stakeholder approach is based on the notion that an inclusive approach towards all contributors is valuable from a social, economic and political perspective.[93] The directors are viewed as mediators between stakeholders, who do not have contractual protection or fiduciary duties, and the interest of the shareholders. The duty of corporate managers in such a scenario is to create ‘optimal value for all social actors who might be regarded as parties who can affect or are affected by a corporation’s decisions’.[94] In similar vein, Blair and Stout’s team production model perceives the company as a team to which different persons contribute and expect returns.[95]

John Kay, draws an analogy between the guiding objective of a successful corporation and a doctor.[96] A comparison is drawn between the way a good doctor is innovative and responsible in the application of medical science to serve their patients.[97] Similarly, the goals of a successful corporation should include satisfying the needs of its customers, meeting reasonable expectations of employees and the development of their capabilities.[98] Kay argues that the theory incorporates moral values as a critical aspect of the strategic management process. Emphasis on trust and fairness rather than efficiency makes the corporation a complex ‘network of relationships’.[99] According to Daniel, ‘A world dominated by the pursuit of economic efficiency is often lacking in grace and kindness...’[100]  

 Critics of the stakeholder theory claim that it ‘undermines private property, denies agents’ duties to principals and destroys wealth’.[101] In the words of Easterbrook and Fischel ‘a manager told to serve two masters…has been freed of both and is answerable to neither’.[102] Furthermore, it is emphasised that the meaning of ‘stakeholder’ is not definite[103] and that some stakeholders are more important than others but there is no guidance to determine their importance,[104] as opposed to the clear objective of shareholder primacy.

The Company Law Review Steering Group[105] while conducting a comprehensive review of UK’s company law opposed the stakeholder theory (referred to as ‘pluralism’) because it would impose a distributive economic role on the directors. This would occur while managing the benefits and burdens of company’s resources. Furthermore, it was stressed that if such director’s duties or discretion remain uncontrolled it would consequently, overburden the judges with the same distributive role, once it becomes an enforceable obligation for all interested parties.[106] The Hampel Report reaffirmed the same opinion by stating:

‘there would be no clear yardstick by which to judge their performance. This is a recipe for neither good governance nor for corporate success.’[107]

Nevertheless, the pendulum started oscillating from the orthodox shareholder primacy to the pluralist stakeholder model[108] as the corporation, its purpose and role in society rapidly transformed due to advancement in the information technology sector.

B. Competing with Price- harmful effects of Big-Tech Monopsony Power

 I.    Monopsony power in ‘Big-Tech’

The turn of the millennium, in Thomas Friedman’s words, saw a few significant ‘world flattening events’.[109] Technological advancement through inter alia, workflow software, uploading, off-shoring, outsourcing, supply chaining[110] and in-sourcing brought a third wave of globalisation.[111] Now, the individuals, entrepreneurs and start-ups started gaining instant financial independence, decision making authority and ultimately began to impact consumer welfare.

This form of globalisation endured the crash of the ‘Dot-com’ bubble[112]. The advice of IMF and Alan Greenspan, then chairman of the US Federal reserve,[113] addressing the Global South to follow globally acceptable good governance practices did not seem compelling after a few years.[114] Since, the Enron scandal,[115] an energy company with 64 billion dollars in assets going bankrupt,[116] and accounting scandals at WorldCom and Tyco,[117] BHS, Carillion and Patisserie Valerie, etc.[118] Corporate governance failures were frequently reported in media, precipitating lawsuits and calls for resignation.[119] Resultantly, The US Sarbanes Oxley Act of 2002,[120] was introduced to protect investors by improving the accuracy and reliability of corporate disclosures and monitoring the management of US public companies.

In parallel, young entrepreneurs became billionaires[121] through the rise of ‘Big-Tech’[122] corporations in a dominance of global consumer electronics, e-commerce, operating & productivity software and social media applications. The fourth industrial revolution transformed the tangible asset economy (plant, machinery, and buildings) into an intangible asset economy (Licences, patents, and research and development) in a manner the world had never seen before.[123] According to recent reports, the ‘magnificent seven’[124] corporations account for 29% of S&P 500 and 61% of the NASDAQ market value.[125]

The unbridled concentration of monopsony power is detrimental to consumer welfare due to privacy invasion, spread of misinformation, low wages and stifling competition.[126] There is growing consensus among legal academics,[127] politicians[128] and economists[129] that the antitrust and competition law framework needs to review the consumer welfare standard, introduced by the Chicago School of Economics in the 1970s.

II.    Consumer welfare standard

Robert Bork’s book ‘Antitrust Paradox’[130] and the Chicago school of economics resurrected the neo classical economics approach in antitrust law through a disguised Consumer Welfare Standard (‘CWS’) that favours low prices and productive efficiencies. Rather than, concerns with monopolisation, market structure or vertical exercises of market power, the judges and policymakers were confounded with a simple microeconomic concept. ‘Neo-Brandeisian’ (sometimes referred to as ‘hipster antitrust’[131]) antitrust theorists strongly advocate replacing the CWS with a new legal standard (including privacy, quality and innovation) true to the original intent of the antitrust legislation.

Bork’s CWS includes the consumer surplus as well as the producer surplus—the area above the supply curve and under the price in the conventional supply demand diagram.[132] That area represents producer profits, or how much the producer earns above its cost of production. In conventional economics, the combined producer and consumer surplus is called ‘total welfare,’ not ‘consumer welfare’. However, the Supreme Court cited Bork in the ‘Reiter v. Sonotone’ decision concluding that ‘Congress designed the Sherman Act as a consumer welfare prescription.’[133] More than 30 years after ‘The Antitrust Paradox’ was published, the 2010 Horizontal Merger Guidelines (HMG), established the CWS as the driving principle of merger evaluation and other antitrust litigation. This was the basis of under enforcement by the US antitrust regulatory authorities[134] fuelled by political deregulatory policies until recent times.

 III.    Chair of the FTC and battle for consumer protection

Lina Khan, rose to prominence with her article, the Amazon’s Antitrust Paradox[135] published in 2017, identifying how the CWS is unequipped to capture the ‘architecture of market power’ in the modern economy. In her own words:

The undue focus on consumer welfare is misguided. It betrays legislative history, which reveals that Congress passed antitrust laws to promote a host of political economic ends—including our interests as workers, producers, entrepreneurs, and citizens. . . . Antitrust law and competition policy should promote not welfare but competitive markets. By refocusing attention back on process and structure, this approach would be faithful to the legislative history of major antitrust laws. It would also promote actual competition—unlike the present framework, which is overseeing concentrations of power that risk precluding real competition.[136]

Furthermore, the article highlights two major reasons why setting prices at unrealistically low levels (‘predatory pricing’) and vertical integration is harmful in digital platforms. First, investors encourage and platforms thrive in the strategy of growth over profits. Due to the overreliance on low prices embedded in the CWS, regulation policy, case law and economic approach, predatory pricing seems highly rational. Second, as online intermediaries, the essential infrastructure required by its own rivals is controlled through integration across the business platforms.[137]

Resultantly, the information collected on companies using integrated services is exploited to forestall and supress competition.[138] In another article titled ‘Sources of Tech Platform power’,[139] Khan observes that ‘gatekeeper power’, ‘vertical integration’, and ‘information asymmetries’ could be used to manipulate the flow of information and enable foreign interference in elections, witnessed in the Trump election campaign.[140] 

Since 15 June of 2021, Khan is serving as the chairperson of the Federal Trade Commission.[141] Along with Jonathon Kanter, at the helm of the Department of Justice, during her tenure, major multibillion dollar antitrust lawsuits have been filed against Facebook (now ‘Meta’), Google, Amazon and Microsoft. The FTC will continue to promote innovation and serve as a measure of deterrence for the Big-Tech corporations.[142] Additionally, the erosion of consumer welfare is being protected through the introduction of bills in the US congress,[143] expanding scope of antitrust legislation beyond the Sherman and Clayton Act and revising merger guidelines.[144] Recent developments at FTC’s official website mention proposals, such as ‘click to cancel’ rule, banning ‘non-compete’ agreements as well concerns on ‘Generative AI’ in this regard.[145]   

In like manner, Margarete Vestagher, The EU commissioner for competition, believes under enforcement as a consequence of ‘underdeveloped theories of harm rather than unreasonably high standards of proof.’[146] Big-Tech corporations have been slapped with heavy fines of up to five billion euros in the battle between Brussels and the Silicon Valley.[147] Europe is leading the way in shaping its digital future through robust regulation due to the inability of competition law, specifically article 102 of the Treaty on the Functioning of the European Union[148]  (‘TFEU’) in dealing with Big-Tech monopolies. On 14 September 2022, the Digital Markets Act (‘DMA’) was unanimously adopted by the European Union to crackdown Big-Tech’s anti-competitive behaviour and provide an objective criteria of qualification for the large online platforms (referred to as ‘gatekeepers’) ensuring consumer choice, fair prices and transparency.

Consumers today are up against a complex ecosystem of tech companies (with colossal data vaults), data brokers and advertisers tracking and monetising every imaginable aspect of their lives.[149] The last antitrust lawsuit against Microsoft and Bill Gates in the 1990s,[150] paved the way for the young entrepreneurs that have now mastered the art of lobbying.[151] This was evident on the 13th of July, 2023, when Lina Khan patiently endured a four hour gruelling questioning at the House judiciary committee oversight hearing.[152] Labelled by the Republicans as a ‘Bully’, targeting harassment against ‘Twitter’ and wasting tax money in a court appeal against the Microsoft-Activision merger.[153] The regulator’s team is understaffed, undercompensated and running out of time. Yet, the real competition is not against ‘Big-Tech’, perhaps, it is against the forty year old case law that echoes Bork’s misguided consumer welfare standard deep rooted in the orthodox neoclassical tradition.

Chapter 2.  The importance of reshaping Corporate Powe

A.   Is the ESG model working?

 I.      Green regulation

The corporate purpose debate illustrates[154] that the introduction of a new regulation for sustainability of the environment could either be assessed through the orthodox shareholder profit maximisation or the pluralist stakeholder theory, protecting long term interests of the firm, its employees and the global community at large.[155] The ‘ESG’ acronym first used in a UN report titled ‘Who Cares Wins’ in 2004,[156] signifies the Environmental, Social and Governance (ESG) criteria used by companies and investors to disclose and assess performance against non-financial measures like a company’s impact on climate change and broader society.[157] The Global Reporting Initiative (GRI) and the Sustainable Accounting Standards Board (SASB) provide frameworks and standards to report on these non-financial dimensions.[158] The UK and the EU have mandatory ESG reporting requirements through various regulations, directives and acts of parliament.[159]

UK is leading the way following its commitment in COP26[160] of net zero greenhouse gas emissions (GHG) by 2050.[161] The Companies (Strategic Report) (Climate-related Financial Disclosure) Regulations 2022 amended certain sections of the UK Companies Act 2006 with specific ESG related requirements in company annual reports.

In Europe, the new EU climate law[162] transformed the EU Green Deal[163] of climate neutrality by 2050 into a binding obligation. Since 2017, large companies (listed with more than 500 employees) are obligated to report environmental and societal issues in annual reports in line with the EU Non-financial Reporting Directive (NRFD).[164] In 2023, it has further been expanded to include listed companies as well as 250 plus employee companies expanding its scope to over 50,000 companies.

On the contrary, in the US despite the existence of an executive order in support of NetZero goals by 2050, ESG reporting is largely not mandatory.[165] In fact, there is a pushback from investors and lawmakers on the Securities Exchange Commission (SEC) to water down the ESG reporting duties in the proposed reporting rules obligating public companies to report climate data costs in audited financial statements.[166]

II.       The Wall Street and ESG activism

 The SEC is the regulator of the Wall Street (‘NYSE’) and NASDAQ, with a market capitalisation of approximately 44 Trillion Dollars.[167] The enforceability of legislation at the US federal level through a divided congress or a regulator threatened by legal action by the most influential public companies lies at the heart of the climate change paradigm shift.[168] The eight block long financial district in lower Manhattan is home to the ‘Big Tech’ (‘Apple’, ‘Alphabet’ [‘Google’], ‘Amazon’, ‘Facebook’ [now ‘Meta’], and ‘Microsoft’), the largest greenhouse polluters (‘Vistra energy’ [95,036,473 metric tons of CO2], ‘Exxon’, ‘Chevron’, ‘BP’, ‘Shell’, ‘Berkshire Hathaway’ etc.), the automakers (‘TESLA’, ‘Toyota’, ‘Porsche’, ‘BYD’ etc.) and the renewable energy providers (‘NextEra Energy’, ‘Brookfield Renewable’, ‘First Solar’, ‘Albemarle’, ‘Ganfeng Lithium’ etc.) trading stocks all at the same time.

Larry Fink, CEO of BlackRock, world’s largest asset manager and investor,[169] in his letter addressed to the clients and CEOs in 2020 highlighted the importance of incorporating ESG and sustainability as the new standard of investing.[170] However, in response to the recent backlash by US conservatives labelling ESG a ‘Woke’[171] term, BlackRock’s support for US shareholder proposals on environmental and social issues fell by nearly half[172] and its CEO has expressed that it will abstain using the term because it is politically ‘weaponised’.[173] The severity of climate change has influenced the global political agenda since the Paris agreement came into force.[174] However, the investor, shareholder and the corporate board room in the US, UK and the major industrialised world still lack the required impetus to transition to low-carbon sustainable economies in the near future.[175]

In 2010, the Deepwater Horizon drilling rig ignited, exploded and spilled approximately five million barrels of oil for eighty seven days into the Gulf of Mexico affecting over eight thousand species that inhabited the spill area.[176] Unfortunately, this was not an isolated incident amongst a long list of monumental environmental calamities caused by corporations.[177] Climate change mitigation is not a choice, neither an incentive for global leadership, it is a call for posterity necessitating accurate monitoring and control of the private sector, effective public private partnerships and strict regulation.[178] The global transformation to a low-carbon economy is expected to require investments of at least US$ 4–6 trillion a year.[179] Bizarrely, the US response has fluctuated between total abandonment of the cause[180] and a peculiar plan of reflecting sunlight to cool the earth.[181]

 III.  Social divergence and portfolio primacyThe social element in ESG relates to income inequality, Human rights and the under realisation of natural capital.[182] Paul Collier argues that both the spatial divergence between the metropolis and provincial towns and cities. As well as, the social divergence in education is due to the ‘third serious derailment of capitalism’.[183] Britain is in the midst of a new ‘winter of discontent’[184] with consistent strikes and walkouts by teachers, train and bus drivers, university lecturers, civil servants and airport staff due to the cost of living crisis.[185] Reasons of the social dilemma faced by Anglo-American and European nations post multiple Bank crises, the Covid-19 pandemic and the Russia-Ukraine war, were identified by Marx and Engels in the mid-19th century. In essence, the antagonistic class struggle imposed by the owners of the means of production or the modern capitalist makes society incompatible for the labourer.[186]

In a quest for transitioning into the Net Zero vision[187] the social condition of workers and communities associated with the fossil based stranded assets, particularly in the Global South would be devastating.[188] Recent evidence suggests that outside of the ‘Big Three’,[189] the institutional investor is typically concerned about governance, which is related with financial returns rather than the environment and social goals of ‘ESG’ investing.[190]

Paul Davies in his critique[191] of Prosperity[192] raises the question about the potential of ESG activism for companies to move beyond the financial reporting and disclosure obligations. Nevertheless, he agrees with Mayer on the assertion that ‘sophisticated profit maximisation has limited the potential of companies to move towards social or communal goals’.[193] Professors Coffee and Gordon present a stewardship theory of widely invested funds with a financial incentive to pursue ESG related goals at the portfolio level.[194] In their opinion systemic risks affecting the whole economy in portfolio investment is the major threat rather than idiosyncratic risk which is firm specific. Gordon identifies three major systemic risks, climate change, social disorder and financial crises.[195]

In the same vein, Tallarita proposes an interesting theory of Portfolio primacy, arguing that diversified portfolios include both companies which externalise climate costs on society and companies that bear such costs. Resultantly, in case of a climate externality a portfolio wide owner would be motivated to curtail those externalities at source.[196] In a nutshell, he emphasises that relying on market-driven corporate action to address climate change would be a mistake and the only plausible way forward is through a central role of external regulation as portfolio primacy might not just be ineffective but actually damaging.[197]

B.  Imposition of an affirmative duty of consumer wealth maximisation on global corporations

 I.     Consumer Wealth Maximisation

 The corporate governance regulatory framework must go beyond subjective judicial interpretation of relevant legislation (i.e. in UK, section 172 of Companies Act 2006)[198] in each jurisdiction. And mere academic debate about the success of modest reforms for realignment of the long term interest of the ‘other’.[199] It has now become imperative that an affirmative duty of Consumer Wealth Maximisation (‘CWM’) beyond the perfunctory ESG model[200] is imposed on corporations for reparation of the damage caused to the global community and prevention of the detriment it will likely cause if its path remains unaltered. In particular, the relationship between costs, distribution of profit between all the actors of the corporation (including shareholders, managers and workers) and the silent consumer.   

The urgency of including communal and social goals in the corporate purpose is not prompted due to climate change alone but seeks to address the root cause of Friedmanite profit maximisation policies that have led to financial crises, climate change and the class divide.[201] The plausible solution does not have to be embarrassingly simple[202] or inextricably complex but rigorous, globally applicable and workable for the reluctant business owner. The goal of corporate law today must be one dimensional, to advance the welfare of all who are affected by a corporation’s activities, including its shareholders, employees, suppliers, and customers, as well as third parties such as local communities and beneficiaries of the natural environment.[203] Mandatory laws[204], both positive and normative in nature need to be clearly stated and responsibilities imposed on the CEOs,[205] proxy advisers and directors to influence corporate behaviour post specific corporate law reforms.

 The law in the US[206], UK[207] and major European nations[208] requires an affirmative shareholder approval to opt out from a default rule as corporations are governed by its own constitutional documents. According to Davies, it would require significant political pressure from directors and managers both to alter that commitment to private ordering and to introduce in its place corporate law rules that mandated the constitutional provisions which resulted from private ordering before the rise of the institutions.[209]

Mayer emphasises on the importance of determining the meaning of success in the corporate purpose. He explains the etymology of the word Profit in Latin ‘proficere’ and ‘profectus’, meaning to advance and progress, namely wealth and welfare creation not wealth or welfare diversion or transfer.[210] The consumer wealth is eroded by the constant decline of freedom to partake in the corporate decision making process. Moreover, its tangible and intangible assets are controlled through legally viable corporate profiteering mechanisms which thrive in times of adversity.[211]

II. The cost and profit distinction

Woodcock proposes a solution to the corporate purpose debate through the lens of antitrust law.[212] In his view, a duty of profit minimisation can be imposed on corporate boards but there is a vital distinction to be made between costs and profit. Any firm generates profit from the consumer and maximisation of the profit implies the minimisation of the share of surplus generated by production that consumers can keep for themselves.[213] In essence, long term profit maximisation whether for the shareholder or managers and workers of the firm is the redistribution of wealth from the consumers to the firm.[214] Both shareholder primacy and CSR/ESG advocates fail to acknowledge that in a prehistoric economy, a firm produced goods for its own consumption[215] but in today’s market economy, wealth is derived always from a negotiation with consumers.[216]

According to Woodcock, profits are the revenue generated by firms or corporations in excess of what is necessary.[217] It is not compensation for any shareholder, manager, worker, or creditor to contribute what the firms need to produce. The distribution of profit for consumer welfare is avoided by arguing that unless profit maximisation takes place there will be an insufficient reward for innovation, and the extraordinary era of technological improvement that has improved living standards for the past three hundred years would come to an end.[218]

On the other hand, the CSR/ESG camp argues that unless corporations reinvest profits in long term projects or allocate to its workers, the corporation will not do well in the long run and the workers will not work hard enough to maximise profits.[219] He further argues that surplus properly defined is the value created for consumers after all cost of production have been paid. Profits are a share of that surplus, rather than costs, they are not necessary for the efficient operations of the corporation. As soon as they become necessary, they stop being profits, stop being part of the surplus, and become costs.

The Chicago School of Economics which resurrected the neoclassical economists[220] have dominated antitrust legislation since the late seventies, but in economic terms, it fails to distinguish between profits and quasi-profits (also sometimes referred to as the difference between economic and accounting profits) in its argument about fixed costs. A quasi profit is a portion of the revenue left over after the corporation pays its variable costs, meaning costs associated with specific units or volumes of output.[221] Fixed costs are paid out of this and the residual is the actual profit, its share of the residual from the surplus generated from its production activities. In such a scenario where the duty to price at cost is imposed, then profit maximisation would become illegal, punishable by nominal damages under the law, enforced by the regulator and in Woodcock’s words ‘general opprobrium’ in the court of public opinion.[222]

In like manner, Prosperity highlights that there is no point in changing the purpose of the firm if we continue to measure its performance just in relation to profits.[223] Mayer urges to redefine the existing corporate accounts to incorporate other forms of capital. This would lead to a definition of profits that accounts for the cost of avoiding the deterioration or exploitation of other capitals, which he terms ‘fair profits’. As opposed to the conventionally reported ‘fake profits’ that fail to account for the cost to companies of remedying the damage of their activities.[224]

III.  Implementing the Corporate Purpose

Mayer faces criticism on methods of implementing the company purpose, for its success, any stated purpose should be adopted on a mandatory basis. Davies suggests that such an exercise would be ‘ineffective’ or ‘unnecessary’ without substantial changes in corporate law or in the investment goals of shareholders, effectively downgrading their governance rights which seems improbable to him.[225] However, Davies identifies a viable private ordering solution,[226] particularly relevant for corporations that have set themselves targets to become net-zero emissions energy businesses by 2050.

The ‘Green Pills’ mechanism can be deployed using private law to deliver credible commitments to transition.[227] It is an attractive proposition because no change in corporate law or the ‘lackadaisical’ climate policy would be required for its implementation.[228] Armour suggests that, once the Green pill is in place standard corporate governance mechanisms work to support transition, instead of creating potential obstacles. In case of non-compliance there is a penalty in the case of sustainability-linked bonds, in the form of an interest rate step-up for the corporation that fails to deliver on the climate commitment and it offers to clarify where business really stands on the issue of climate change.[229]

In case of certain NetZero commitments, specifically ‘carbon sinks’, the approach has a similarity with Friedman’s view that the regulatory framework sets firms’ private costs of emissions equal to their social costs, then profit maximisation is aligned with social welfare.[230] The business owner has only been hardwired to analyse a possibility, an occurrence or an externality through the profit motive.[231] Today, climate change is being viewed as the greatest commercial opportunity of our time[232] which may not be a bad incentive for the short term. A tipping point is approaching in the transition to a NetZero economy as the price of renewables goes down and the cost of carbon will go up, a transition will become attractive from the profit maximisation standpoint.[233]     

 In summary, CWM is the collective consciousness of global corporations compelled to structure methods of calculating unaccounted loss and relinquish profits by legal, corporate governance and public-private sector reforms in the interest of the consumer. However, is the object of the draftsman a homo economicus (economic man), a utility seeking individual or a conscientious person committed to the government’s cause and a long term public-private partnership?[234]        

Chapter 3. Recommendations

A.  Reform in corporate sector and regulatory bodies

I.    The Purpose of Corporate Reforms

The specific role of corporate law in reforming society is bound to culminate in failure unless a new construct can displace the prevailing Meme, ‘an idea or a thought…that replicates itself in human social environment’.[235] In Noam Chomsky’s words ‘today the masters of mankind are multinational corporations and financial institutions’ which he considers a ‘state-corporate complex’ a threat to freedom and even survival.[236] The term ‘invisible hand’ appeared in the ‘Wealth of Nations’ only on one occasion which in Chomsky’s opinion is a critique of modern neoliberalism.[237]

Mayer considers that Adam Smith maintained a balance between economic efficiency and ethics[238] through his earlier work, ‘Theory of Moral Sentiments’.[239] Albeit, critics dismissed any such notion,[240] in fact, Hume’s scepticism of reason[241] validated Smith’s rational self-interest and inspired Bentham and Mill to develop Utilitarian moral principles that define global capitalism today.[242] The free market enterprise has always moved through ‘Boom and Bust’ cycles (28 cycles of variable degree since 1929)[243]  rescued through state intervention at the expense of the common man.[244] The welfare of the consumer, trust in business and the environment have all rapidly eroded under the guise of global development, benefitting only ‘the top “one-tenth” of one percent’.[245] According to Michael O’ Sullivan,[246] ‘democracy has peaked’ and the new multipolar regions (Americas, EU and China) would approach economic policy, warfare, technology and society in a different manner.[247] 

II.        Agenda for Change

Initially, recalibration of the moral compass through the ‘economics of mutuality’ is required.[248] The corporate purpose needs to be the driving force for corporations to transcend self-interest and stretch its boundaries.[249] The mutual profit & loss (‘P&L’) statement implemented at Mars in collaboration with Oxford University is a novel approach of redefining management accounting. The process would involve ‘pain point identification’, innovative ESG metrics[250] and ecosystem building to reflect a firm’s impact on human, social, and environmental capital issues.[251] Therefore, ‘mutuality’, is a transformation of business performance for the benefit of people, planet and profit (in that order).[252] In accordance with the stakeholder approach,[253] all the actors, including the economist, academic, jurist, business owner, consumer, regulator and policy maker contribute towards fulfilment of the reciprocally beneficial purpose.

Subsequently, three major areas of reform in the global corporate governance regime must be addressed on a war footing. First, addressing welfare creation, second, climate change and third, responsible management and control of the corporation. The eight principles of a purposeful business mentioned in the British Academy report[254] can serve as a stepping stone for evaluating concerns and determining policy proposals. Judicial reforms would involve proactive corporate leadership, stakeholder and political support to amend existing legislation and propose new laws for the future corporation. However, in the short term the corporate purpose can provide the impetus for climate change risk mitigation, social uplifting and financial realignment.  

 III.        Recommendations for judicial reformThe first set of proposed reforms would ensure consumer wealth maximisation in terms of social wellbeing. There are further two subsets for the scope of application of the laws for critical reorganisation. First, worker rights in corporations shall be protected in both, the Global North and Global South. Mayer observes that ‘Robber Barons’[255] in the past accumulate wealth as much as possible and give it away through philanthropic foundations. In the process, the social inequality gap is widened and irreparable damage persists by unproductive use of capital. The state-corporate complex[256] leads to industrial action and strikes in response to the cost of living crisis[257] but the government’s responsibility to resolve disputes is a legal burden that has to be shared by the private sector.

The relevant stakeholders at both private and public corporations along with civil society groups, non-governmental organisations, social partners and grassroots organisations must constitute a working committee for the worker wealth maximisation.[258] The committee shall periodically report to the relevant ministry of labour for the required legislative changes focusing on current standards for fair pay, minimum wage, social security, mental wellbeing, abusive practices and updating trade union legislation to permit the freedom to protest for equal rights. Upon conclusion of the legislative process and the law of worker wealth maximisation being passed, the human resources (‘HR’) department at both public and private corporations shall ensure compliance and report breach through due process, whereby the state can impose strict penalties on the company Board and the shareholders depending on the severity of the breach or inaction to follow the guidelines.      

Second, consumer rights in the technology sector shall be protected through amendment of the definition of ‘fraud’ in both common law and civil law jurisdictions to facilitate consumer wealth maximisation. The definition of ‘civil fraud’, ‘deception’ and ‘unfair practice’ would be amended to include all sorts of manipulative practices, including but not limited to the use of ‘dark patterns’, ‘Bait and Switch’, ‘Self-preferencing’ and ‘algorithmic manipulation’ permitting the state body/regulator to initiate legal proceedings or a civil suit in the relevant court of law. Furthermore, a legal duty would be imposed by the state regulatory body on Corporations in the IT sector to employ an independently appointed (subject expert) consumer protection officer (CPO).

The technology sector consumer needs to be differentiated from the customer on the basis of being subject of the ill-defined rational choice theory[259] in the digital age. The consumer may not be actually buying any goods or services but the freedom to make an independent choice is curtailed by the lack of consent in decision making as a prospective customer. This is further complicated by the requirement to use consumer data for the rapid advancement of AI systems.[260] The age of Generative AI and use of large language models (LLMs) allow AI to create and self-improve data.[261] IT corporations in the Global North are currently adhering to privacy laws, such as GDPR[262] or CCPA as well as separate proposed AI legislation.[263] The specialised CPO shall ensure transparency, compliance and report violations (in accordance with a pre-approved standard) to the regulatory body. Such as, the FTC, which has recently imposed certain duties regarding collecting of personal information on web operators implementing the Children's Online Privacy Protection Rule (‘COPPA’).[264]

The second set of proposed reforms addresses the threat of climate change which mandates a long term public private partnership (‘PPP’) between the corporation and the state. The urgency of transformative action for climate change cannot be understated. However, in terms of priority for judicial reforms it follows welfare creation reforms because it builds the foundation of trust which is lacking in the current perfunctory ESG model.[265] The recalibration of the moral compass through purpose, mutual P&L statements, the ‘Green Pills’[266] mechanism and the stakeholder approach towards consumer wealth maximisation would expedite the NetZero mission.

Thereafter, there are two proposed subsets of the PPP legislative reform to address the threat of climate change. First, the private or public corporation engaged to provide public goods, utility or infrastructure for renewable energy (including critical raw material & rare earth minerals) shall make licence conditions of their infrastructure operations part of their charter or articles of association.[267] This form of partnership would protect natural capital as a return to its original roots of providing social capital and performing public functions.[268] In Mayer’s opinion, the private provider is operating in a social space which cannot be ignored or dominated otherwise the politicians, competition authorities and the regulators will gravitate towards nationalisation.[269]

Second, the PPP between Global North and Global South corporations shall be formed on three legal prerequisites, ring-fencing utility activities (renewable or non-renewable), technology transfer through temporary IP waivers[270] and social sustainability. The OECD principles on international regulatory co-operation[271] and the EU corporate sustainability reporting directive[272] would provide the acceptable industry standards that would be implemented and monitored by an international network of CWM.             

The third set of reforms are rooted in the stakeholder model of corporate governance to ensure consumer wealth maximisation through effective management and control of the corporation. There are four proposed subsets of judicial reform. First, the regulator shall impose an affirmative duty on the shareholder by inclusion of a default rule in the model articles of association or other relevant constitutional document according to the firm’s jurisdiction. The corporation shall be legally obligated to increase its natural and social capital in accordance with a prior approved ESG standard.

Second, the board of directors under the stewardship of the institutional investor[273] shall ensure that company profits are redistributed after all losses for sustaining the financial and non-financial capital have been compensated. Third, a corporation shall limit its financial contributions for lobbying in inverse proportion to its dominance in the relevant market sector. Accordingly, politicians and public service officials would be barred from acquiring major stakes[274] in corporations leading to a potential conflict of interest and holding or trading individual stocks during their official tenure.[275]

In Chomsky’s opinion, while describing the US ‘social security scam’ a standard technique of privatisation is deployed by politicians through defunding, ensuring things don’t work and frustrating people so that ultimately the services are handed over to the private sector. In case of ESG, this profit maximisation strategy would be countered by the abovementioned measures.

Fourth, the use of AI in corporate boardroom decision making would be expressly prohibited. Initially, ‘robo-directors’ would be encouraged to improve efficiency in regulatory procedures and counter groupthink.[276] However, this would be an autonomous layer in the corporate veil, allowing the shareholder a loyal and smart decision maker without any legal personhood.[277] There are a few corporations that have played an inspirational role in reforming society in the past. Particular attention should be drawn to firms which are following in their footsteps by experimenting with modern sustainable techniques in guiding the way forward.           

B.  Case Studies for the way forward

 I.        Sacrificing self-interest and new outlook for the firm

The direction for changing society cannot be determined without unanimous acknowledgment of practical, ethical and theoretical issues by all its stakeholders. 181 CEOs adopted a new statement of corporate purpose in the business roundtable held in 2019,[278] signalling a definite move away from the shareholder primacy model. Nonetheless, critics of the stakeholder theory challenge its effectiveness on the basis of the ‘Agency problem’,[279] vagueness,[280] reliance on fairness[281] and providing a safe harbour for managers.[282] Essentially, the goal is not to create a monster in the shape of shirking, self-serving managers as a mirror image of the profit maximising shareholder. In the opinion of Blair and Stout, evidence from behavioural theory suggests that people can act altruistically and sacrifice selfish interests to achieve a result that benefits others, and this is consistent with ethical behaviour.[283] The directors must not be seen as opportunistic but require the trust of enlightened shareholders,[284] as good stewards acting in the interest of all stakeholders.

A comparative analysis of the German codetermination structure of corporate governance shows that employee appointed directors can also play a key role to curb risk-taking incentives, encourage board diversity and prevent social division.[285] Bruner observes that German companies with stakeholder councils in advisory capacities, performed much better than its ‘US’ and ‘UK’ counterparts due to its consensus based approach.[286] In similar vein, Senator Elisabeth Warren proposed the ‘Accountable Capitalism Act’, urging firms earning more than One Billion US dollars to identify a public benefit and provide at least forty percent board representation to employees.[287] Other alternatives exist in the form of Delaware’s public benefit corporation (‘PBC’) which has a stated public purpose alongside commercial objectives. Mayer suggests that banks and utility companies can be converted into PBCs or its close French counterpart, société à mission and can also be a potentially advantageous model for health service providers and corporations with significant market power.[288]     

Mayer particularly admires the Quaker family owned businesses in Britain, in his opinion, they were not only enlightened but commercially successful businesses as well.[289] Companies such as Cadbury, Clarks, Fry’s, and Rowntree’s, introduced innovative commercial inventions, such as fixed-price contracts, to replace haggling and offered housing for their employees and built ‘model villages’, such as Bournville and Saltaire.[290] However, in the modern age of dispersed institutional investor ownership most of these business have failed or been taken over. In comparison, Forrest Mars transformed his father’s chocolate manufacturing business in 1930, through expanding the business and it remains family owned till date. The basic tenet of management at Mars Inc. was uniting all members in a coordinated drive to a single objective, ‘profit through faith in the company’s leadership and product.’[291] Mars Catalyst, a think tank of ‘Mars Inc.’ and ‘Oxford University’, jointly put their research to the test through executing a series of case studies on 14 companies to tackle some of the most pressing global challenges. Mayer and Roche, in their analysis conclude that institutional investors are pressured to prioritise profits in the short term. Furthermore, regulation is conventionally viewed in the context of the Friedman doctrine for enforcing rules for shareholder value maximisation.[292] This creates an obstacle between aligning the private purpose with the public interest which can be problematic in the case of infrastructure or utility service providers.

II.        Industrial Foundations, ‘Handelsbanken’ and ‘Novo Nordisk’

Mayer sheds light on the ‘Industrial Foundation’ model that many successful corporations, such as, ‘Bertelsmann’, ‘Bosch’, ‘Ikea’, ‘Novo Nordisk’, ‘Carlsberg’ and ‘Tata’ are effectively utilising to abide by their corporate purpose.[293] There is a major difference between making corporate social responsibility statements and credible commitment to the stated corporate purpose. The industrial foundations that own the company allocate profits to the business and gives surplus to charity.[294] The companies ‘abide by their purpose, principles, and values as set down by their founders.’[295] In case of non-compliance the foundation takes over the responsibility. Such firms have an incredibly high survival rate of at least sixty years compared to similar firms which die on average within twenty years.[296]

Germany and Denmark both have a history of long-term engaged ownership through industrial foundations. However, the process of self-selection of the foundation board members often draws criticism. Mayer suggests this concern may be addressed through a hybrid system of board election by ‘nomination committees’, prevalent in Sweden, that have both ‘internal foundation members and external shareholder members.’[297] Another non-traditional yet resilient model of governance is deployed at the Swedish bank, ‘Handelsbanken’, with a distinctive decentralised decision making structure. The branch managers have been empowered in such a way that the bank has created strong relationships with its customers. In turn, higher levels of satisfaction and ‘loyalty on the customer’s side has increased the overall revenue and financial stability of the bank’.[298]

Mayer illustrates the meaning of having a corporate purpose through the case of a Danish pharmaceutical company, ‘Novo Nordisk’, a leading provider of Insulin in the world. While re-invigorating its corporate purpose, the company realised the problem it is seeking to solve is getting Insulin to  people in low-middle income countries with almost 85% of the world’s type 2 diabetes cases. However, during its interaction with medical practitioners, it became evident that the most effective method of treating type 2 Diabetes did not necessarily involve injecting Insulin.[299]

Instead, proactive engagement with national governments, local communities and health workers made it possible to identify lifestyle changes for prevention of type 2 Diabetes. Resultantly, the purpose of the company became to eradication of Diabetes around the world. Mayer further observes, that even though one might think a noble deed undermines its financial performance, in fact, ‘Novo Nordisk’ became a trusted partner for all the stakeholders and became a ‘source of great growth and commercial success in the company’.[300]

 C.   International network of guidance and support for global consumer wealth maximisation   

I.        The Unholy Trinity and the ‘Edhi’ Foundation

The challenge of addressing climate change and ESG through corporate governance is also closely tied with addressing the failures of capitalism and international democratic institutions. Richard Peet in his book, ‘the Unholy Trinity’, highlights the rise of a hegemony of three international institutions, International Monetary Fund, the World Bank, and the World Trade Organisation.[301] In his view, globalisation increased the power of these institutions massively and they operate undemocratically, promoting neoliberal capitalism aggressively. A recent study sampling 81 developing countries from 1986 to 2016, show that IMF borrower countries experience higher rates of poverty contrary to its objectives.[302]

In fact, the predatory lending practices demand structural adjustments in the borrower nation’s economy, requiring increased privatisation, liberalising trade and foreign investment negatively impacting the social sector.[303] Countries, such as Sri Lanka and Pakistan eventually are bailed out after or at the brink of default.[304] The situation of Pakistan’s economy is peculiar due to the Civil-Military[305] oligarchy or as Hoodbhoy describes the ‘Establishment’, which controls and defines the national interest.[306] The void created through the absence of rule of law and poor governance is only partially filled by eleemosynary or charitable foundations. The largest fleet of private ambulances in the world is operated by ‘Edhi’ foundation from Pakistan, a non-profit organisation, founded by Abdul Sattar Edhi, a quiet revolutionary philanthropist[307] who filled in for the state.[308]

II.        Establishment of trust and global ESG metrics 

In view of the aforementioned socio-political circumstances the corporations have to address multiple ESG challenges, particularly in countries that are most affected by climate change.[309] Therefore, for a better future in the Global South, corporations have to initially, counter the status quo prone towards improving efficiency of the economy at the expense of the environment. Subsequently, establishment of trust is required between all stakeholders of the existing corporate governance framework to include ESG metrics. The Global South corporations will require consistent support and guidance to transform the corporate governance framework geared towards consumer wealth maximisation. The establishment of an International Network for Consumer Wealth Maximisation is imperative, in the footsteps of the UN based System of Environmental-Economic Accounting (SEEA).[310] Another newly formed organisation is the G7 backed International Sustainability Standards Board (‘ISSB’) which also incorporates the ISO 14000 family of standards in line with the sustainable development goals (SDGs) for 2030.[311]

The NetZero challenge, financial and health crises necessitate active involvement of the Global North corporations to provide guidance for accurate measurement of human, natural and social capital. The creation of standardised documentation, in line with the European ESG Template (‘EET’), containing 580, mandatory, conditional and optional fields, prepared by the industry consortium Financial Data Exchange Templates (‘FinDatEx’) is urgently required.[312]

 III.        ‘Ring Fencing’ and ‘tragedy of the commons’

The relevant regulatory authority can draft and publish specific contractual provisions relating to technology transfer, IP waivers, anti-green washing and non-exploitation of human rights as a necessary prerequisite for a PPP. For instance, any large (public infrastructure project) requiring expertise of international consultants in the non-renewable sector would be legally obliged to ring fence the project. Specifically, from any holding company or subsidiaries not directly associated with the work and ensure protection of the assets for the local community. Along with a mandatory requirement of training and IP transfer of basic technological concepts for research and development by the local partner. Additionally, the adverse social and environmental impact of any such project would be curtailed by requiring both the local and international partner to increase the natural, social and human capital in accordance with the abovementioned standards.          

The Hardin’s ‘tragedy of the commons’, explained how short term interest is diametrically opposite to societal good and that demand based on individual interest ultimately ruins the common resources.[313] Mayer, provides a solution to the problem of overgrazing the commons by realising that future generations will only inherit as much of the resources that are allocated by the current generation.[314] The current generation has to be allocated control of the future generation’s natural capital as their custodians who will keep the interest of both current and future generations in mind. A notable example is the ‘Whanganui’ River in New Zealand, the first river to be granted legal status as a Te Awa Tupua, ‘an indivisible’, ‘living whole’.[315] The conundrum that needs to be solved is whether corporations should adopt the prevailing model of shareholder primacy to reach an imaginary state of globalisation or adopt the pluralistic stakeholder model to combat climate change and ensure consumer wealth maximisation.

 

 

 

 

 

 

 

 

 

 

Conclusion

It is an inflection point to realise that the challenge of climate change mitigation has been exacerbated by the self-regulatory approach in the current corporate governance framework. Collective action through modest reforms cannot lead the Corporation into its seventh age as the ‘Trusted Corporation’.[316] The AI revolution can restore trust in governance and realign the corporate purpose to attain normative welfare enhancement for the society at large. A simple online artificial intelligence chatbot has become the fastest growing software application of all time.[317] The invention can either ensure global cooperation for a paradigm shift or to control the lives of the consumer for the benefit of a few privileged individuals. This dissertation identifies clear and definitive methods of imposing an affirmative duty of consumer wealth maximisation through prescriptive mandatory rules and best practices to reformulate the corporate purpose on an immediate basis. The research has shown that shareholder primacy originated in the neoclassical economic perception of the corporation, renewed by the Friedman doctrine is the root cause of the erosion of consumer welfare. Ultimately, implementation of the renewed corporate purpose restores natural capital and wealth of the individual who transforms from a consumer to its rightful place in society as a citizen once again.

Chapter one, identifies the significance of political and economic theories on the development of corporate governance. The fallacy of the free market enterprise has been exposed due to its inability to account for externalities. The role of the regulators, such as the FTC can deter monopsony power but corporations must realise its role in reforming society through embracing the stakeholder theory.

Chapter two, analyses the lackadaisical approach in the implementation of the ESG model for corporate governance and concludes that prescriptive mandatory rules and best practices are required on an immediate basis. The imposition of an affirmative duty of consumer wealth maximisation on the firm is proposed for three main reasons. First, the need to internalise unaccounted loss of natural, social and human capital. Second, to differentiate costs from profit and its redistribution for consumer welfare. Third, to avert the risks of climate change, social disorder and financial crises.

Chapter three, proposes specific recommendations in accordance with the principle that cultural changes in social and moral values must be supported by regulatory intervention. Subsequently, case studies from comparative jurisdictions present unconventional methods of business collaboration. In conclusion, an international network of support and guidance is proposed to establish a global partnership between corporations of the Global North and Global South.

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H.-O. Pörtner and others ‘IPCC 2022: Climate Change 2022: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change’ (Cambridge University Press 2022)

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HM Treasury ‘Greening Finance: A Roadmap to Sustainable Investing’ (HM Government, October 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1031805/CCS0821102722-006_Green_Finance_Paper_2021_v6_Web_Accessible.pdf> accessed 10 August 2023

International Energy Agency ‘Net Zero by 2050 A Roadmap for the Global Energy Sector’ (4th revision, IEA 2021)

UNEP ‘Emissions Gap Report 2022: The Closing Window-Climate crisis calls for rapid transformation of societies’ (UNEP 2022)

 

Books

 

Ahmed T The Cling Effect: A Story of Underdevelopment in Postmodern Times (Book Home, 2021)

Ansary T The Invention of Yesterday: A 50,000-Year History of Human Culture, Conflict, and Connection (Hachette UK 2019)

Berle A and Means G, The Modern Corporation and Private Property (first published 1932, rev. ed., Harcourt, Brace & World 1968)

Berman H Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983)

Bork H R, The Antitrust Paradox (Free Press, 1978)

Chandler A Jr, The Visible Hand : The Managerial Revolution in American Business’ (Belknap Press 1977)

Choudhury B and Petrin M, Corporate Duties to the Public (Cambridge University Press 2019)

Collier P, The Future of Capitalism: Facing the New Anxieties (Harper, 2018)

Dignam A and Galanis M, The Globalization of Corporate Governance (Ashgate 2009)

Freeman E R, Strategic Management: A Stakeholder Approach (Pitman, 1984)

Friedman L T, The World Is Flat: A Brief History of the Twenty-first Century (Farrar, Straus and Giroux, 2005)

Friedman M, Capitalism and Freedom, (University of Chicago Press (1962)

Friedman M, Essays in Positive Economics (University of Chicago Press, 1953)

Hoodbhoy P Pakistan Origins, Identity and Future (Routledge, 2023)

Janis I, Victims of Groupthink: A psychological study of policy decisions of policy decisions and fiascos (Houghton Mifllin 1972)

John Armour, Henry Hansmann, Reinier Kraakman and Mariana Pargendler, ‘What is corporate law?’ in The Anatomy of Corporate Law: A Comparative and Functional Approach (2nd edition Oxford University Press 2009)

Larcker D and Tayan B, Corporate Governance Matters: A Closer Look at Organisational Choices and Their Consequences (1st edn, Pearson Prentice Hall 2011)

Lensink R, Structural adjustment in Sub-Saharan Africa (1st ed., Longman, 1996)

Leslie K, QC, and Roberts C, 'Written Resolutions of Private Companies', Company Meetings and Resolutions: Law, Practice, and Procedure (New York, 2020; online edn, Oxford academic)

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Mayer C, Prosperity (OUP, 2018)

Moore M and Petrin M, Corporate Governance: Law Regulation and Theory (Palgrave 2017) 

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Rickards J Sold Out: How Broken Supply Chains, Surging Inflation and Political Instability Will Sink the Global Economy (1st edition, Penguin Business 2022)

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Smith A, The Theory of Moral Sentiments (Knud Haakonssen ed, Cambridge University Press 2002)

Stigler G, the Theory of Price (Macmillan, 1947)

Sullivan O M, The Levelling: What’s next after Globalisation? (Hachette UK, 2019)

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Black S B, ‘”Is Corporate Law Trivial?” A Political and Economic Analysis’, (1990) 84 Nw. U. L. REV. 542

Blair M & Stout L, ‘a Team Production Theory of Corporate Law’, (1999) 85 VA. L. REV. 247

Blair M & Stout L, ‘Director Accountability and the Mediating Role of the Corporate Board’, (2001) 79 WASH U. L.Q. 438

Bruner M C, 'Corporate Governance Reform and the Sustainability Imperative' (2022) 131 Yale L.J.1229

Business Roundtable ‘Business Roundtable Redefines the Purpose of a Corporation to Promote “An Economy That Serves All Americans”’ (Business Roundtable, 19 August 2019) <https://www.businessroundtable.org/business-roundtable-redefines-the-purpose-of-a-corporation-to-promote-an-economy-that-serves-all-americans> accessed 10 August 2023

Chang C E, ‘The WTO Waiver on COVID-19 Vaccine Patents’ (2022) 70 UCLA LAW REVIEW 74.  (UCLA Law Review, 27 January 2023) <https://www.uclalawreview.org/the-wto-waiver-on-covid-19-vaccine-patents/> accessed 10 August 2023

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Coombes P, and Wong S, ‘Why Codes of Governance Work’ (2004) 2 The McKinsey Quarterly 51; Cydney Posner ‘SEC Approves Nasdaq “Comply-or-Explain” Proposal for Board Diversity’, (Harvard Law School Forum on Corporate Governance, 26 August 2021) < https://corpgov.law.harvard.edu/2021/08/26/sec-approves-nasdaq-comply-or-explain-proposal-for-board-diversity/> accessed 10 August 2023

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Davies P, ‘Shareholder Voice and Corporate Purpose: The Purposeless of Mandatory Corporate Purpose Statements’ (November 1, 2022), European Corporate Governance Institute - Law Working Paper No. 666/2022, <SSRN: https://ssrn.com/abstract=4285770> accessed 10 August 2023

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F de Silanes, J McCahery and P Pudschedl, Institutional Investors and ESG Preferences, ECGI Law Working Paper 631/2022; Gomtsian S, ‘Different Visions of Stewardship: Understanding Interactions between Large Investment Managers and Activist Shareholders’ (2022) 22 J.C.L.S 151

Faccio M and Larry H.P. Lang, the Ultimate Ownership of Western European Corporations, 65 J. financ. econ. 365

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Hansmann H and Thomsen S, ‘The Governance of Foundation-Owned Firms’ (2021) 13 Journal of Legal Analysis 172

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Jensen, M. (2001), Value Maximisation, Stakeholder Theory, and the Corporate Objective Function. European Financial Management, 7: 297-317

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John C. Coffee, Jr., ‘The Coming Shift in Shareholder Activism: From “Firm-Specific” to “Systematic Risk” Proxy Campaigns (and How to Enable Them)’, [2021] Brook J Corp Fin & Com L 45

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Katelouzou D & Siems M, ‘The Global Diffusion of Stewardship Codes’, Global Shareholder Stewardship: Complexities, Challenges and Possibilities (Dionysia Katelouzou & Dan W. Puchniak eds., forthcoming 2021) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3616798> accessed 10 August 2023

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Keay A and Loughrey J, ‘The Concept of Business Judgment’ (2018) 39 Legal Studies 36

Keay A, ‘Ascertaining the Corporate Objective: An Entity Maximisation and Sustainability Model’ (2008) 71 Mod L Rev 671

Keay A, 'Stakeholder Theory in Corporate Law: Has it Got What it Takes' (2010) 9 Rich J Global L & Bus 249

Keay, Andrew R., The Duty to Promote the Success of the Company: Is it Fit for Purpose? (August 20, 2010). University of Leeds School of Law, Centre for Business Law and Practice Working Paper, <https://ssrn.com/abstract=1662411> accessed 10 August 2023

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Khan M L, 'Sources of Tech Platform Power' (2018) 2 Geo L Tech Rev 325

Lobao L and others, ‘The shrinking state? Understanding the assault on the public sector’, (2018) 11 Cambridge J. of Regions, Econ. & Soc’y 389

Low, Kelvin F.K. and Wan, Wai Yee and Wu, Ying-Chieh, The Future of Machines: Property and Personhood (July 22, 2021). Ernest Lim and Phillip Morgan (eds), ‘The Cambridge Handbook of Private Law and Artificial Intelligence’ (Cambridge University Press, forthcoming) <https://ssrn.com/abstract=3895535> accessed 10 August 2023

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Mayer C, ‘Shareholderism versus Stakeholderism – a Misconceived Contradiction. A Comment on “The Illusory Promise of Stakeholder Governance” by Lucian A Bebchuk and Roberto Tallarita’ (SSRN, 2020) <http://www.econis.eu/PPNSET?PPN=1790268575> accessed 10 August 2023

McChesney, F. (1989) 89 ‘Economics, Law, and Science in the Corporate Field: A Critique of Eisenberg’, Colum.L.Rev.’ 1530

Meyers ‘The sweet secret world of Forrest Mars’ (1967); Joseph Needham, ‘The Grand Titration: Science and Society in East and West’ (University of Toronto Press, 1969) 312

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Petrick, J.A. and Scherer, R.F. (2003), "The Enron Scandal and the Neglect of Management Integrity Capacity" 18 AJB 37

Pickl M, ‘The Renewable Energy Strategies of Oil Majors – From Oil to Energy?’ (2019) 26 ScienceDirect 100370

Porter E M and Kramer R M, ‘Creating Shared Value’ (2011) Harv.Bus.Rev. 5

Ramsi A. Woodcock, 'The Antitrust Duty to Charge Low Prices' (2018) 39 Cardozo L Rev 1741

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Strine, Jr, Leo E., ‘Corporate Power is Corporate Purpose I: Evidence from My Hometown’ (2016) Oxford Review of Economic Policy, Forthcoming, U of Penn, Inst for Law & Econ Research Paper No. 16-34, Harvard Law School John M. Olin Center for Law, Economics, and Business Discussion Paper no. 895.<https://ssrn.com/abstract=2906875> accessed 10 August 2023

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Tallarita R, 'The Limits of Portfolio Primacy' (2023) 76 Vand L Rev 511

Thomsen, Steen and Poulsen, Thomas and Børsting, Christa and Kuhn, Johan, Industrial Foundations as Long-Term Owners (March 1, 2018). European Corporate Governance Institute (ECGI) - Finance Working Paper No. 556/2018, <http://dx.doi.org/10.2139/ssrn.2725462> accessed 10 August 2023

Ugo P, 'The crisis of intellectual monopoly capitalism' (2014) 38(6) Camb.J.Econ. 1409

United States Gives Notice of Withdrawal from Paris Agreement on Climate Change (2020) 114 AJIL 132

Woodcock R, 'The Antitrust Case for Consumer Primacy in Corporate Governance' (2020) 10 UC Irvine L Rev 1395

Wright D J, and others, Requiem for a Paradox: The Dubious Rise and Inevitable Fall of Hipster Antitrust (2018) 18-29, Ariz.St.L.J. 2019

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News Articles

 

‘Cambridge Analytica parent firm SCL Elections fined over data refusal’ BBC news (London, 10 January 2019) < https://www.bbc.co.uk/news/technology-46822439> accessed 10 August 2023

Adam K ‘Britain grinds to a halt as a half-million workers go on strike’ The Washington Post (London, February 1 2023) < https://www.washingtonpost.com/world/2023/02/01/britain-strike-unions-cost-of-living/ > accessed 10 August 2023

AFP ‘Europe's battle with Big Tech: billions in fines and tough laws’ The Economic Times (unknown, 14 September 2022) <https://economictimes.indiatimes.com/tech/technology/europes-battle-with-big-tech-billions-in-fines-and toughlaws/articleshow/94190848.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst> accessed 10 August 2023

Amnesty International ‘ ”The Great Hack”: Cambridge Analytica is just the tip of the iceberg’ Amnesty International (London, 24 July 2019) <https://www.amnesty.org/en/latest/news/2019/07/the-great-hack-facebook-cambridge-analytica/> accessed 10 August 2023

Ashton F, ‘Why the Consumer Welfare Standard Is the Backbone of Antitrust Policy’ (American Action Forum, 26 October 2022) <https://www.americanactionforum.org/insight/why-the-consumer-welfare-standard-is-the-backbone-of-antitrust-policy/> accessed 10 July 2023

Baer J ‘BlackRock Now Manages Over $10 Trillion in Assets’ The Wall street Journal (New York, 14 January 2022) <https://www.wsj.com/articles/blackrock-now-manages-over-10-trillion-in-assets-11642162013> accessed 10 August 2023

Birnbaum E ‘Tech Giants Broke Their Spending Records on Lobbying Last Year’ Bloomberg UK (London, 1 February 2023) <https://www.bloomberg.com/news/articles/2023-02-01/amazon-apple-microsoft-report-record-lobbying-spending-in-2022?in_source=embedded-checkout-banner> accessed 10 August 2023

Blumenthal R and Wu T ‘What the Microsoft Antitrust Case Taught Us’ The New York Times (New York, 18 May 2018)

Brooke Masters ‘BlackRock pulls back support for climate and social resolutions’ Financial times (New York, 26 July 2022) <https://www.ft.com/content/48084b34-888a-48ff-8ff3-226f4e87af30> accessed 10 August 2023

Casali C and Sauvaget J ‘A new winter of discontent? UK sees mass strike action amid cost-of-living crisis’ France 24 (unknown, 1 Feb 2023) < https://www.france24.com/en/tv-shows/focus/20230201-uk-workers-on-strike-to-demand-higher-pay-amid-cost-of-living-crisis> accessed 10 August 2023

CFI team ‘Top Accounting Scandals A recap of the top scandals in the past’ (New York, 11 June 2020) <https://corporatefinanceinstitute.com/resources/accounting/top-accounting-scandals/> accessed 10 August 2023

Chowdhury L, Ogwuru C, Jones C, Ainslie D and Vizard T, ‘Impact of increased cost of living on adults across Great Britain: February to May 2023’ (Office for National Statistics, 2023)

Constable S ‘How the Enron Scandal Changed American Business Forever’ Time (New York, 2 December 2021) <https://time.com/6125253/enron-scandal-changed-american-business-forever/> accessed 10 August 2023

Day T and others ‘Corporate Climate Responsibility Monitor 2023’ (New Climate Institute 2023)

Dyer H, Cutler S, Savarese M and Kendrick D ‘Revealed: shares held ‘in secret’ by scores of MPs raise questions about vested interests’ The Guardian (London, 9 July 2023) < https://www.theguardian.com/politics/2023/jul/09/revealed-shares-held-in-secret-by-scores-of-mps-raise-questions-about-vested-interests> accessed 10 August 2023

Eaglesham J and Kiernan P, ‘SEC Considers Easing Climate-Disclosure Rules after Investor Pushback’ The Wall Street Journal (New York, 3 February 2023) < https://www.wsj.com/articles/sec-considers-easing-climate-disclosure-rules-after-investor-pushback-11675416111> accessed 10 August 2023

Editorial ‘the fundamental contradiction of ESG is being laid bare- Profit-seeking companies have too little incentive to save the planet’ The Economist (London, 29 September 2022) <https://www.economist.com/leaders/2022/09/29/the-fundamental-contradiction-of-esg-is-being-laid-bare> accessed 10 August 2023

Essele P, ‘The Russian Invasion of Ukraine: A Lesson in Stakeholder Capitalism?’ (Harvard Law School Forum on Corporate Governance, 16 March 2022)

Feiner L ‘House passes antitrust bill that hikes M&A fees as larger efforts targeting tech have stalled’ CNBC (NewYork, 29 September 2022) <https://www.cnbc.com/2022/09/29/house-passes-antitrust-bill-raising-ma-fees.html> accessed 10 August 2023

Finance and Economics ‘Big tech’s dominance is straining the logic of passive investing’ The Economist (New York, 20 July 2023) < https://www.economist.com/finance-and-economics/2023/07/20/big-techs-dominance-is-straining-the-logic-of-passive-investing> accessed 10 August 2023

Fink D L, ‘2020 Letter to CEOs’ titled ‘A Fundamental Reshaping of Finance’ BlackRock (New York, 14 January 2020)

Frank J, ‘Larry Fink "ashamed" to be part of ESG political debate’ Axios Denver (Denver, 26 June 2023) < https://www.axios.com/2023/06/26/larry-fink-ashamed-esg-weaponized-desantis> accessed 10 August 2023

Friedman M, ‘The social responsibility of business is to increase its profits’, The New York Times Magazine, (New York, 13 September 1970)

Furman J, ‘Unlocking Digital Competition’, (Digital Competition Expert Panel, 2019)

Hargrave S ‘Shining a new light on poverty could help put the ‘S’ back in ESG’ Raconteur (London, 20 October 2022) < https://www.raconteur.net/corporate-social-responsibility/poverty-put-the-s-back-in-esg/> accessed 10 August 2023

Holden E, 'Of course it could happen again: experts say little has changed since Deepwater Horizon’ The Guardian (Washington, 20 April 2020) <https://www.theguardian.com/environment/2020/apr/20/deepwater-horizon-10-years-later-could-it-happen-again> accessed 10 August 2023

Hussain A, ‘Exceptionally high’ economic risks in Pakistan, IMF report’ Al Jazeera (Karachi, 19 July 2023); Syed Abdul Khaliq ‘The IMF and World Bank have lost all legitimacy. We need new alternatives’ (open Democracy, 10 April 2019)

In UK, the ‘Enough is Enough’ campaign mentions on its website ‘Misery forced on millions by rising bills, low wages, food poverty, shoddy housing’ (Enough is Enough, 2023) <https://wesayenough.co.uk/> accessed 10 August 2023

Isabella Weber ‘Could strategic price controls help fight inflation?’ The Guardian (London, 29 December 2021) <https://www.theguardian.com/business/commentisfree/2021/dec/29/inflation-price-controls-time-we-use-it> accessed 10 August 2023

ISO ‘Goal 13: Climate Action Take urgent action to combat climate change and its impacts’ < https://www.iso.org/sdg/SDG13.html> accessed 10 August 2023

Khilji U, ‘Abdul Sattar Edhi: The philanthropist who filled in for the state in Pakistan’ (London School of Economics and Political Science, 15 July 2016)

Krystal Hu ‘ChatGPT sets record for fastest-growing user base - analyst note’ Reuters (London, 2 February 2023) <https://www.reuters.com/technology/chatgpt-sets-record-fastest-growing-user-base-analyst-note-2023-02-01/> accessed 10 August 2023.

Lasarte D ‘The ongoing big tech antitrust cases to watch in 2023’ (Quartz, 24 January 2023) <https://qz.com/antitrust-cases-big-tech-2023-guide-1849995493> accessed 10 August 2023

Lipton A, ‘Benefit Corporations Go Public’ (LPB Network, 18 July 2020) <https://lawprofessors.typepad.com/business_law/2020/07/benefit-corporations-go-public.html> accessed 10 August 2023

Marsh A & Robertson B, Carney Calls Net-Zero Ambition “Great Commercial Opportunity”, (Bloomberg, 9 November 2020), <https://www.bloomberg.com/news/articles/2020-11-09/carney-calls-net-zero-ambition-greatest-commercial-opportunity> accessed 10 August 2023

Martinson J and Elliott L, ‘The year dot.com turned into dot.bomb’ The Guardian (London, 30 December 2000) < https://www.theguardian.com/technology/2000/dec/30/internetnews.business> accessed 10 August 2023

Masko J, UnHerd ‘BlackRock’s tyrannical ESG agenda Is Larry Fink a threat to democracy?’ (Unherd, 2 March 2023) <https://unherd.com/2023/03/blackrocks-tyrannical-esg-agenda/> accessed 10 August 2023

McLaughlin C ‘Union fury over £4bn bonuses for bankers as fat cats profit from Covid pandemic’ Mirror (London, 19 February 2022) < https://www.mirror.co.uk/news/uk-news/union-fury-over-4bn-bonuses-26279713> accessed 10 August 2023

Merrick A, ‘Is the Friedman Doctrine Still relevant in the 21st century?’ , The Chicago Booth Review (Chicago, 24 May 2021)

Moore J, ‘It’s time to make a case for ‘woke capitalism’ Independent (London, 29 April 2023) accessed 10 August 2023

Naughton J ‘“The goal is to automate us”: welcome to the age of surveillance capitalism’ The Guardian (London, 20 January 2019)

Peters J and Warren T, ‘FTC appeals its loss to Microsoft in Activision Blizzard case’ (The Verge, 13 July 2023) <https://www.theverge.com/2023/7/12/23791274/ftc-microsoft-activision-blizzard-appeal> accessed 10 August 2023

Romm T ‘Facebook fined $US5 billion in Cambridge Analytica privacy probe’ The Sydney Morning Herald (Washington, 13 July 2019) https://www.smh.com.au/world/north-america/facebook-fined-us5-billion-in-cambridge-analytica-privacy-probe-20190713-p526xb.html accessed 10 August 2023

Sandler R ‘Here Are The Richest Tech Billionaires 2022’ Forbes (New York, 5 April 2022) < https://www.forbes.com/sites/rachelsandler/2022/04/05/here-are-the-richest-tech-billionaires-2022/?sh=420219365e37> accessed 10 August 2023

Shinde S ‘What Companies Fall Under Big Tech? How Do You Land a Job With Them?’ (Emeritus, 21 February 2023) <https://emeritus.org/blog/technology-big-tech/> accessed 10 August 2023

Skoulding L ‘Life after BHS, Carillion, & Patisserie Valerie: Is there light at the end of the tunnel for audit?’ (Accountancy Age, 12 April 2019) < https://www.accountancyage.com/2019/04/12/life-after-bhs-carillion-patisserie-valerie-is-there-light-at-the-end-of-the-tunnel-for-audit/> accessed 10 August 2023

The White House Washington ‘Congressionally-Mandated Report on Solar Radiation Modification’ (The White House Office of Science and Technology Policy, 2023)

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Footnotes

[2] The terms ‘corporation’ and ‘firm’ may be used interchangeably however the main focus of this dissertation is on large public companies whose ordinary shares or equity securities are traded on a regulated public investment market. Nevertheless, relevant principles of law or theory shall be applicable to large private or non-public companies mutatis mutandis. 

[3] Ulrike Malmendier, ‘Law and Finance “at the Origin”’, (2009) 47 Journal of Economic Literature 9.

[4] Harold J Berman Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983) 219.

[5] Alan Dignam and Michael Galanis, The Globalization of Corporate Governance (Ashgate 2009) 8.

[6] Marc Moore and Martin Petrin, Corporate Governance: Law Regulation and Theory (Palgrave 2017) 24; Richard T. Ford, ‘Law’s Territory (A History of Jurisdiction)’, 97 (1999) MICH. L. REV 850-52.

[7] Colin Mayer, Prosperity (OUP, 2018).

[8] William Shakespeare ‘All the World’s a Stage’, As You Like It, Act II, scene vii, (First published 1623, The Folger Shakespeare, 2023).

[9] Mayer (n6) 12.

[10] Adam Smith, An inquiry into the Nature and Causes of the Wealth of Nations (first published 1776, Clarendon Press 1976) 741. 

[11] Moore and Petrin (n 5) 13.

[12] Barnali Choudhury and Moore Petrin, Corporate Duties to the Public (Cambridge University Press 2019) (i).

[13] Mayer (n 6) 4.

[14] Ibid, 1.

[15] ‘Mens rea’ [Law Latin ‘guilty mind’] the state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime…’ Black’s Law Dictionary (8th edn, West Publishing Co 1990); Rollin M. Perkins and Ronald N. Boyce, ‘Criminal Law’ (3rd ed., Foundation Press 1982) 826–27. They argue that mens rea is a convenient label which may be attached to any psychical fact sufficient for criminal guilt (in connection with socially harmful conduct)….dialectic shorthand to express the idea.’

[16] Andrew Keay, ‘Ascertaining the Corporate Objective: An Entity Maximisation and Sustainability Model’ (2008) 71 Mod L Rev 671.

[17] Mayer (n 6) 163.

[18] The Cadbury Committee, ‘Report of the Committee on the Financial Aspects of Corporate Governance’ (Gee & Co Ltd, 1992).

[19] Sarbanes-Oxley Act of 2002, H.R.3763 -107th Congress (2001-2002).

[20] Keay (n15) 667. 

[21] Ibid  673.

[22] Dionysia Katelouzou and Peer Zumbansen, ‘The Transnationalization of Corporate Governance: Law, Institutional Arrangements and Corporate Power’ (2020) 38 AJICL 31.

[23] Linda Lobao and others, ‘The shrinking state? Understanding the assault on the public sector’, (2018) 11 Cambridge J. of Regions, Econ. & Soc’y 389.

[24] Katelouzou and Zumbansen (n22).

[25] Cadbury Report (n1) para 2.5; Also see internationally applicable definition of corporate governance at OECD, G20/OECD Principles of Corporate Governance, (OECD Publishing 2015) <https://doi.org/10.1787/9789264236882-en> accessed 10 August 2023.

[26] Paul Coombes, and Simon Wong, ‘Why Codes of Governance Work’ (2004) 2 The McKinsey Quarterly 51; Cydney Posner ‘SEC Approves Nasdaq “Comply-or-Explain” Proposal for Board Diversity’, (Harvard Law School Forum on Corporate Governance, 26 August 2021) < https://corpgov.law.harvard.edu/2021/08/26/sec-approves-nasdaq-comply-or-explain-proposal-for-board-diversity/> accessed 10 August 2023.

[27] UK Corporate Governance Code 2018. 

[28] Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies [2007] OJ L 184/17; Jeffrey N. Gordon, ‘The Mandatory Structure of Corporate Law’, (1989) 89 COLUM. L. REV. 1549.

[29] Dionysia Katelouzou & Mathias Siems, ‘The Global Diffusion of Stewardship Codes’, Global Shareholder Stewardship: Complexities, Challenges and Possibilities (Dionysia Katelouzou & Dan W. Puchniak eds., forthcoming 2021) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3616798> accessed 10 August 2023.

[30] Bernard S. Black, ‘”Is Corporate Law Trivial?” A Political and Economic Analysis’, (1990) 84 Nw. U. L. REV. 542, 543.

[31] Jonas V. Anderson, ‘Regulating Corporations the American Way: Why Exhaustive Rules and Just Deserts are the Mainstay of U.S. Corporate Governance’, (2008) 57 DUKE L.J. 1081.

[32] Katelouzou and Zumbansen (n22) 34.

[33] Erkens, David H., Mingyi Hung and Pedro Matos, 'Corporate governance in the 2007–2008 financial crisis: Evidence from financial institutions worldwide' (2012) 18(2) Journal of Corporate Finance 389.

[34] Chris McLaughlin ‘Union fury over £4bn bonuses for bankers as fat cats profit from Covid pandemic’ Mirror (London, 19 February 2022) < https://www.mirror.co.uk/news/uk-news/union-fury-over-4bn-bonuses-26279713> accessed 10 August 2023.

[35] Anna di Robilant, ‘Genealogies of Soft Law’ (2006) 54 AM. J. COMP. L. 499.

[36] Leslie Green, ‘Positivism and the Inseparability of Law and Morals’ (2008) 83 N.Y.U. L. REV. 1035.

[37] Shlensky v. Wrigley, 237 N.E.2d 776 (Ill. App. Ct. 1968); Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984); see also Andrew Keay and Joan Loughrey, ‘The Concept of Business Judgment’ (2018) 39 Legal Studies 36-55.

[38] Katelouzou and Zumbansen (n22) 40; see also Paramount Comms. Inc. v. QVC Network Inc., 637 A.2d 34, 43 (Del. 1994).

[39] Katelouzou and Zumbansen (n22) 41.

[40] Dignam and Galanis (n 4) 21; see definition of perfect competition:

Perfect competition describes a market where there are a large number of small firms who produce an identical (homogenous) product, where there are no entry-barriers for new competing firms and where all firms face the same costs.

[41] ibid 19.

[42] ibid.

[43] Milton Friedman, ‘Essays in Positive Economics’ (University of Chicago Press, 1953) 102.

[44] Fritz Machlup, ‘Marginal Analysis and Empirical Research’ (1946) 36 American Economic Review 519.

[45] George Stigler the Theory of Price, (Macmillan, 1947) 48. The assumption is that natural prices of goods are reflected by market prices which are determined by the matching of supply and demand.

[46] Dignam and Galanis (n 4) 20.

[47] ibid.

[48] Brian J Loasby, ‘Choice, Complexity and Ignorance: An Enquiry into Economic Theory and Practice of Decision Making’ (Cambridge University Press, 1976) 5.

[49] Dignam and Galanis (n 4) 20.

[50] Ibid. ‘Let them do [what they will]’ in French.

[51] M d'Argenson, Lettre au sujet de la dissertation sur le commerce du marquis de Belloni', Avril 1751, Journal Oeconomique, 111; French minister, René Louis de Voyer de Paulmy first used the term.

[52] Dignam and Galanis (n 4) 4.

[53] Alfred D. Chandler, Jr. ‘The Visible Hand : The Managerial Revolution in American Business’ (Belknap Press 1977).

[54] Adolf Berle and Gardiner Means ‘The Modern Corporation and Private Property’ (first published 1932, rev. ed., Harcourt, Brace & World 1968).

[55] Dignam and Galanis (n4) 12; There were other theories, such as the ‘fiction’ and ‘concession’ theory but they eventually died down.

[56] Ibid, 13.

[57] Edwin Merrick Dodd, ‘For whom are Corporate Managers Trustees?’ (1932) 45 Harv.L.Rev.1145.

[58] Ronald Coase, ‘The Nature of the Firm’, (1937) 4(4) Economica 386.

[59] Dignam and Galanis (n 4) 22.

[60] Coase (n 58) 391.

[61] ibid 393.

[62] Choudhry and Petrin (n 11) 4-5.

[63] Jensen, M. and Meckling, W. (1976) 3 ‘Theory of the Firm: Managerial Behaviour, Agency Costs, and Ownership Structure’, J. financ. econ., 305-307.

[64] Alchian, A. and Demsetz, H. ‘Production, Information Costs, and Economic Organization’ (1972) 62 American Economic Review 777.

[65] ibid 783.

[66] Mayer (n 6) 87.

[67] Dignam and Galanis (n 4) 32.

[68] Moore and Petrin (n 5) 99.

[69] Royal Geographical Society ‘A 60 Second Guide to the Global North/South Divide’ < https://www.rgs.org/CMSPages/GetFile.aspx?nodeguid=9c1ce781-9117-4741-af0a-a6a8b75f32b4&lang=en-GB > accessed 10 August 2023.

[70] Dignam and Galanis (n 4) 34.

[71] Choudry and Petrin (n 11) 17.

[72] Lucian Bebchuck, ‘Foreword: The Debate on Contractual Freedom in Corporate Law’, (1989) 89 Colum.L.Rev. 1395-1415; Mc Chesney, F. ‘Economics, Law, and Science in the Corporate Field: A Critique of Eisenberg’, (1989) 89 Colum.L.Rev. 1530.

[73] Choudry and Petrin (n 11)

[74] Fukuyama, F. ‘The End of History?’ [1989] 16 The National Interest 3.

[75] Dignam and Galanis (n 4) 227-237.

[76] ibid 246.

[77] Christopher M. Bruner, 'Corporate Governance Reform and the Sustainability Imperative' (2022) 131 Yale L.J. 1229; also see Robert Hessen, ‘A new concept of corporations: A contractual and Private Property model’ (1979) 30 Hastings L.J. 1327-1330; M.A Eisenburg ‘The Conception That the Corporation is a Nexus of Contracts, and The Dual Nature of The Firm’ (1999) 24 J Corp L 819, 825-826; Stephen Bainbridge, In Defense of the Shareholder Maximisation Norm: A reply to Professor Green’ (1993) 50 Washington and Lee L Review 1423; D G smith, The Shareholder Primacy Norm’ (1998) 23 J. CORP. L. 277.     

[78] Hutton v West Cork Railway Company (1883) 23 Ch 654.

[79] Greenhalgh v Arderne Cinemas Ltd [1950] 11 WLUK 33 (CA); successively followed by Halt Garage Ltd, Re [1982] 3 All E.R. 1016 Ch D, Kinsela v Russell Kinsela Pty Ltd (1986) 4 N.S.W.L.R. 22 SC NSW, Peters’ American Delicacy Co Ltd v Heath (1939) 61 C.L.R. 457.

[80] Dodge v Ford Motor Company 170 NW 668 (Mich. 1919); Reaffirmed in a recent Delaware court decision, eBay Domestic Holdings, Inc. v Newmark 16 A. 3d. 1 (Del. Ch. 2010).

[81] Milton Friedman, Capitalism and Freedom, (University of Chicago Press (1962). 

[82] Milton Friedman, ‘The social responsibility of business is to increase its profits’, The New York Times Magazine, (New York, 13 September 1970); Also see Amy Merrick, ‘Is the Friedman Doctrine Still relevant in the 21st century?’, The Chicago Booth Review (Chicago, 24 May 2021).

[83] Mayer (n 6) 2

[84] ibid.

[85] Bruner (n 77) 1231.

[86] Lucian A Bebchuk, and Roberto Tallarita, 'The Illusory Promise of Stakeholder Governance' (2020) 106(1) Cornell law review 91; Lucian A Bebchuk, ‘Stakeholder Capitalism in the Time of COVID’ (Econis, August 2022). <http://www.econis.eu/PPNSET?PPN=1810412293> accessed 10 August 2023.

[87] Colin Mayer, ‘Shareholderism versus Stakeholderism – a Misconceived Contradiction. A Comment on “The Illusory Promise of Stakeholder Governance” by Lucian A Bebchuk and Roberto Tallarita’ (SSRN, 2020) <http://www.econis.eu/PPNSET?PPN=1790268575> accessed 10 August 2023.

[88] Eric Orts ‘A North American legal perspective on stakeholder management theory’ in Patfield, F. M. (ed.), Perspectives on Company Law, (1997) 2 KLI 165–179.

[89] Keay (n 15) 673;

[90] Edwin Merrick Dodd, ‘Is Effective Enforcement Of The Fiduciary Duties Of Corporate Managers Practicable?’ (1934) 2 U Chi L Rev 194, 199.

[91] Robert Edward Freeman, ‘Strategic Management: A Stakeholder Approach’ (Pitman, 1984)

[92] Andrew Keay, 'Stakeholder Theory in Corporate Law: Has it Got What it Takes' (2010) 9 Rich J Global L & Bus 249, 256.

[93] ibid.

[94] Freeman (n 91) 25.

[95] Margaret Blair & Lynn Stout, ‘a Team Production Theory of Corporate Law’, 85 VA. L. REV. 247 (1999).

[96] Moore and Petrin (n 5) 38.

[97] John Kay, ‘A Stakeholding Society- What does it mean for Business?’ (1997) 44 Scottish Journal of Political Economy 425,426.   

[98] ibid, 434.

[99] John Kay, ‘The Foundations of Corporate Success: How Business Strategies add value’ (OUP 1993) 9. 

[100] M. Mc Daniel, ‘Bondholders and Stockholders’ (1988) 13 J Corp L 205. 

[101] E.Sternberg, ‘The Defects of Stakeholder Theory’ (1997) 5 Corporate Governance 9.

[102] Frank H. Easterbrook and Daniel R. Fischel, "Contract and Fiduciary Duty," (1993) 36 Journal of Law and Economics 38.

[103] Max B. E. Clarkson. ‘A Stakeholder Framework for Analysing and Evaluating Corporate Social Performance’ (1995) 20 The Academy of Management Review 858.

[104] Anant K Sundaram and Andrew C Inkpen, ‘The corporate objective revisited’ (2004) 15 Organ. Sci 352.

[105] DTI, ‘Modern Company Law for a Competitive Economy’ (DTI 1998).

[106] Company Law Review Steering Group, ‘Modern Company Law: For a Competitive Economy - Developing the Framework’ (DTI 2000) para 2.12.

[107] Hampel Committee ‘The Hampel Committee: Final Report’ (The European Corporate Governance Institute 1998) para 1.17.

[108] Peter Essele, ‘The Russian Invasion of Ukraine: A Lesson in Stakeholder Capitalism?’ (Harvard Law School Forum on Corporate Governance, 16 March 2022).

[109] Thomas L Friedman, ‘The World Is Flat: A Brief History of the Twenty-first Century’ (Farrar, Straus and Giroux, 2005) 3.

[110] See recent noteworthy work on the global impact of outsourcing, James Rickards ‘Sold Out: How Broken Supply Chains, Surging Inflation and Political Instability Will Sink the Global Economy’ (1st edition, Penguin Business 2022).

[111] Friedman (n109) 143.

[112] Jane Martinson and Larry Elliott, ‘The year dot.com turned into dot.bomb’ The Guardian (London, 30 December 2000) < https://www.theguardian.com/technology/2000/dec/30/internetnews.business> accessed 10 August 2023.    

[113] Alan Greenspan ‘Testimony before the Committee on Banking and Financial Services, US House of Representatives’, (FRB 1998); IMF ‘World Economic Outlook: Crisis in Asia, Regional and Global Implication-Interim Assessment, Washington DC (IMF 1997); and ‘Michael Camdessus address to Transparency International: “Good governance has become essential in promoting growth and stability:”’ (IMF 1998) IMF Survey 27.

[114] Mayer (n 6) 113.

[115] Petrick, J.A. and Scherer, R.F. (2003), ‘The Enron Scandal and the Neglect of Management Integrity Capacity’ 18 AJB 37.

[116] Simon Constable ‘How the Enron Scandal Changed American Business Forever’ Time (New York, 2 December 2021) <https://time.com/6125253/enron-scandal-changed-american-business-forever/> accessed 10 August 2023.

[117] CFI team ‘Top Accounting Scandals A recap of the top scandals in the past’ (New York, 11 June 2020) <https://corporatefinanceinstitute.com/resources/accounting/top-accounting-scandals/> accessed 10 August 2023.

[118] Lucy Skoulding ‘Life after BHS, Carillion, & Patisserie Valerie: Is there light at the end of the tunnel for audit?’ (Accountancy Age, 12 April 2019) < https://www.accountancyage.com/2019/04/12/life-after-bhs-carillion-patisserie-valerie-is-there-light-at-the-end-of-the-tunnel-for-audit/> accessed 10 August 2023; Carillion Plc v KPMG LLP & Anor [2020] EWHC 1416.

[119] David Larcker and Brian Tayan, ‘Corporate Governance Matters: A Closer Look at Organisational Choices and Their Consequences’ (1st edn, Pearson Prentice Hall 2011) 99-100.

[120] Sarbanes-Oxley Act (n 18).

[121] Rachel Sandler ‘Here Are The Richest Tech Billionaires 2022’ Forbes (New York, 5 April 2022) < https://www.forbes.com/sites/rachelsandler/2022/04/05/here-are-the-richest-tech-billionaires-2022/?sh=420219365e37> accessed 10 August 2023.

[122] Siddhesh Shinde ‘What Companies Fall Under Big Tech? How Do You Land a Job With Them?’ (Emeritus, 21 February 2023) <https://emeritus.org/blog/technology-big-tech/> accessed 10 August 2023.  

[123] Mayer (n 6) 31; According to Mayer, intangibles account for 85% of the market value of US corporations.

[124] Finance and Economics ‘Big tech’s dominance is straining the logic of passive investing’ The Economist (New York, 20 July 2023) < https://www.economist.com/finance-and-economics/2023/07/20/big-techs-dominance-is-straining-the-logic-of-passive-investing> accessed 10 August 2023. Article refers to America’s seven biggest corporate ‘behemoths’—Alphabet, Amazon, Apple, Meta, Microsoft, Nvidia, and Tesla.

[125] Ibid.

[126] Tamim Ansary ‘The Invention of Yesterday: A 50,000-Year History of Human Culture, Conflict, and Connection’ (Hachette UK 2019) 367.

[127] Tim Wu ‘The Curse of Bigness: Antitrust in the New Gilded Age’ (Columbia Global Reports, 2018); Tim Wu ‘The Utah Statement: Reviving Antimonopoly Traditions for the Era of Big Tech’ (Medium, 18 November 2019) < https://onezero.medium.com/the-utah-statement-reviving-antimonopoly-traditions-for-the-era-of-big-tech-e6be198012d7> accessed 10 August 2023; Open Markets Institute ‘America's Concentration Crisis’ (Open Markets Institute, 2019)

[128] US President Joe Biden ‘Executive Order on Promoting Competition in the American Economy’ (Washington. 9 July 2021); Danny Vinik ‘Inside the new battle against Google’ (Politico, 17 September 2017) <https://www.politico.com/agenda/story/2017/09/17/open-markets-google-antitrust-barry-lynn-000523/> accessed 10 August 2023.

[129] Pagano, Ugo, 'The crisis of intellectual monopoly capitalism' (2014) 38(6) Camb.J.Econ.1409.

[130] Robert H. Bork ‘The Antitrust Paradox’ (Free Press, 1978).

[131] The term was popularised through a tweet by Washington based lawyer, Kostya Medvedovsky on 20 June 2017; see also Joshua D. Wright and others, Requiem for a Paradox: The Dubious Rise and Inevitable Fall of Hipster Antitrust (2018) 18-29, Ariz.St.L.J. 2019.

[132]See figure1 in the article by Fred Ashton, ‘Why the Consumer Welfare Standard Is the Backbone of Antitrust Policy’ (American Action Forum, 26 October 2022)  <https://www.americanactionforum.org/insight/why-the-consumer-welfare-standard-is-the-backbone-of-antitrust-policy/> accessed 10 July 2023.

[133] Reiter v  Sonotone Corp., 442 U.S. 330 (1979).

[134] Federal Trade Commission ‘The Enforcers’ (FTC) <https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/enforcers> accessed 10 August 2023.

[135] Lina Khan, ‘Amazon’s Antitrust Paradox’ (2017) 126 (3) Yale L.J. 710.

[136] Ibid, 737.

[137] Ibid, 710.

[138] Ibid; see also the concept of ‘surveillance capitalism’ and ‘behavioural surplus’ in the article by John Naughton ‘“The goal is to automate us”: welcome to the age of surveillance capitalism’ The Guardian (London, 20 January 2019).

[139] Lina M. Khan, 'Sources of Tech Platform Power' (2018) 2 Geo L Tech Rev 325.

[140] Amnesty International ‘ ”The Great Hack”: Cambridge Analytica is just the tip of the iceberg’ Amnesty International (London, 24 July 2019) <https://www.amnesty.org/en/latest/news/2019/07/the-great-hack-facebook-cambridge-analytica/> accessed 10 August 2023; Also see Tony Romm ‘Facebook fined $US5 billion in Cambridge Analytica privacy probe’ The Sydney Morning Herald (Washington, 13 July 2019) https://www.smh.com.au/world/north-america/facebook-fined-us5-billion-in-cambridge-analytica-privacy-probe-20190713-p526xb.html accessed 10 August 2023.

[141] Catherine Thorbecke ‘What to know about Lina Khan, the youngest-ever chair of the Federal Trade Commission’ abcnews (New York, 17 June 2021) <https://abcnews.go.com/Politics/lina-khan-youngest-chair-federal-trade-commision/story?id=78312387> accessed 10 August 2023.

[142] Diego Lasarte ‘The ongoing big tech antitrust cases to watch in 2023’ (Quartz, 24 January 2023) <https://qz.com/antitrust-cases-big-tech-2023-guide-1849995493> accessed 10 August 2023.

[143] Lauren Feiner ‘House passes antitrust bill that hikes M&A fees as larger efforts targeting tech have stalled’ CNBC (NewYork, 29 September 2022) <https://www.cnbc.com/2022/09/29/house-passes-antitrust-bill-raising-ma-fees.html> accessed 10 August 2023.

[144] Policy statement issued by the FTC regarding section 5 of the FTC act, see official version here <https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf > accessed 10 August 2023. 

[145] Ibid.

[146] Jason Furman, ‘Unlocking Digital Competition’, (Digital Competition Expert Panel, 2019) 4.

[147]  AFP ‘Europe's battle with Big Tech: billions in fines and tough laws’ The Economic Times (unknown, 14 September 2022) <https://economictimes.indiatimes.com/tech/technology/europes-battle-with-big-tech-billions-in-fines-and toughlaws/articleshow/94190848.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst> accessed 10 August 2023.

[148] Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] OJ C202/1.

[149] ‘Cambridge Analytica parent firm SCL Elections fined over data refusal’ BBC news (London, 10 January 2019) < https://www.bbc.co.uk/news/technology-46822439> accessed 10 August 2023.

[150] Richard Blumenthal and Tim Wu ‘What the Microsoft Antitrust Case Taught Us’ The New York Times (New York, 18 May 2018).

[151] Emily Birnbaum ‘Tech Giants Broke Their Spending Records on Lobbying Last Year’ Bloomberg UK (London, 1 February 2023) <https://www.bloomberg.com/news/articles/2023-02-01/amazon-apple-microsoft-report-record-lobbying-spending-in-2022?in_source=embedded-checkout-banner> accessed 10 August 2023.

[152] Mary Yang ‘Republicans attack FTC chair and big tech critic Lina Khan at House hearing’ The Guardian (Washington, 13 July 2023)

[153] Jay Peters and Tom Warren, ‘FTC appeals its loss to Microsoft in Activision Blizzard case’ (The Verge, 13 July 2023) <https://www.theverge.com/2023/7/12/23791274/ftc-microsoft-activision-blizzard-appeal> accessed 10 August 2023.

[154] See chapter 1 (n76).

[155] Choudhury and Petrin (n 11) 55.

[156] Swiss Federal Department & United Nations of Foreign Affairs ‘Who cares Wins- connecting financial markets to a changing world’ (The Global Compact, 2004).

[157] Wil Moushey ‘A Short History of ESG’ The Sustainable Blog (30 August, 2021) <https://blog.sustainablehq.com/a-short-history-of-esg-bc82bac830c > accessed 10 August 2023.

[158] VinciWorks ‘Is ESG reporting mandatory in the UK, the EU, and the US?’ ESG Though Leadership (London, 19 July 2023) <https://vinciworks.com/blog/is-esg-reporting-mandatory-in-the-uk-the-eu-and-the-us/> accessed 10 August 2023.

[159] Ibid.

[160] United Nations Climate Action ‘COP26: Together for our planet’ (UN.Org) <https://www.un.org/en/climatechange/cop26> accessed 10 August 2023.

[161]  HM Treasury ‘Greening Finance: A Roadmap to Sustainable Investing’ (HM Government, October 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1031805/CCS0821102722-006_Green_Finance_Paper_2021_v6_Web_Accessible.pdf> accessed 10 August 2023.

[162] Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’) [2021] OJ L 243/1.

[163] Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social committee and the Committee of the Regions – ‘A Green Deal Industrial Plan for the Net-Zero Age’ COM (2023) 62.

[164] Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting (Text with EEA relevance) [2022] OJ L 322/15.

[165] VinciWorks (n 160) 1.

[166] Jean Eaglesham and Paul Kiernan, ‘SEC Considers Easing Climate-Disclosure Rules after Investor Pushback’ The Wall Street Journal (New York, 3 February 2023) < https://www.wsj.com/articles/sec-considers-easing-climate-disclosure-rules-after-investor-pushback-11675416111> accessed 10 August 2023.

[167] Statista Research Department, ‘Comparison of the New York Stock Exchange (NYSE) and Nasdaq from January 2018 to March 2023, by market capitalisation of listed companies’ Statista (New York, 25 April 2023) <https://www.statista.com/statistics/1277195/nyse-nasdaq-comparison-market-capitalization-listed-companies/> accessed 10 August 2023.

[168] Eaglesham and Kiernan (n166) 2.

[169] Justin Baer ‘BlackRock Now Manages Over $10 Trillion in Assets’ The Wall street Journal (New York, 14 January 2022) <https://www.wsj.com/articles/blackrock-now-manages-over-10-trillion-in-assets-11642162013> accessed 10 August 2023.

[170] Laurence D. Fink ‘2020 Letter to CEOs’ titled ‘A Fundamental Reshaping of Finance’ BlackRock (New York, 14 January 2020).

[171]John Masko UnHerd ‘BlackRock’s tyrannical ESG agenda Is Larry Fink a threat to democracy?’ (Unherd, 2 March 2023) <https://unherd.com/2023/03/blackrocks-tyrannical-esg-agenda/> accessed 10 August 2023; James Moore ‘It’s time to make a case for ‘woke capitalism’ Independent (London, 29 April 2023). 

[172]Brooke Masters ‘BlackRock pulls back support for climate and social resolutions’ Financial times (New York, 26 July 2022) <https://www.ft.com/content/48084b34-888a-48ff-8ff3-226f4e87af30> accessed 10 August 2023.

[173] John Frank ‘Larry Fink "ashamed" to be part of ESG political debate’ Axios Denver (Denver, 26 June 2023) < https://www.axios.com/2023/06/26/larry-fink-ashamed-esg-weaponized-desantis> accessed 10 August 2023. 

[174] Paris Agreement [2016] OJ L 282.

[175] Editorial ‘the fundamental contradiction of ESG is being laid bare- Profit-seeking companies have too little incentive to save the planet’ The Economist (London, 29 September 2022) <https://www.economist.com/leaders/2022/09/29/the-fundamental-contradiction-of-esg-is-being-laid-bare> accessed 10 August 2023.    

[176] Choudhury (n 11) 239; Re: Oil Spill by the Oil Rig ‘Deepwater Horizon’ in the Gulf of Mexico., 148 F. Supp. 3d 563 (E.D. La. 2015); Emily Holden, 'Of course it could happen again: experts say little has changed since Deepwater Horizon’ The Guardian (Washington, 20 April 2020) <https://www.theguardian.com/environment/2020/apr/20/deepwater-horizon-10-years-later-could-it-happen-again> accessed 10 August 2023.

[177] Choudhry and Petrin (n 11) 239-240; American Electric Power Company v Connecticut, 564 U.S. 410 (2011); California v General Motors, No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17. 2007); Comer v Murphy Oil

USA, 585 F.3d 855, 880 (5th Cir. 2009); West Virginia v EPA, 142 S. Ct. 2587 (2022).

[178] H.-O. Pörtner and others ‘IPCC 2022: Climate Change 2022: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change’ (Cambridge University Press 2022).

[179] UNEP ‘Emissions Gap Report 2022: The Closing Window-Climate crisis calls for rapid transformation of societies’ (UNEP 2022) 69.

[180] ‘United States Gives Notice of Withdrawal from Paris Agreement on Climate Change’ (2020) 114 AJIL 132.

[181] The White House Washington ‘Congressionally-Mandated Report on Solar Radiation Modification’ (The White House Office of Science and Technology Policy, 2023).

[182] Mayer (n 6) 137.

[183] Paul Collier, Colin Mayer, Alan Schwartz, Kristin Bresnahan, and Steven Pearlstein, ‘Columbia Law School Roundtable on the Future of Capitalism’ (2020) 32 J. Appl. Corp. Finance 42.

[184] Karla Adam ‘Britain grinds to a halt as a half-million workers go on strike’ The Washington Post (London, February 1 2023) < https://www.washingtonpost.com/world/2023/02/01/britain-strike-unions-cost-of-living/ > accessed 10 August 2023; Clovis Casali and Julien Sauvaget ‘A new winter of discontent? UK sees mass strike action amid cost-of-living crisis’ France 24 (unknown, 1 Feb 2023) < https://www.france24.com/en/tv-shows/focus/20230201-uk-workers-on-strike-to-demand-higher-pay-amid-cost-of-living-crisis> accessed 10 August 2023.  

[185] Lili Chowdhury, Caleb Ogwuru, Chris Jones, David Ainslie and Tim Vizard ‘Impact of increased cost of living on adults across Great Britain: February to May 2023’ (Office for National Statistics, 2023)

[186] Karl Marx and Friedrich Engels ‘Communist Manifesto‘ the Communist League’s programme on the instruction of its Second Congress (London, 29 November – 8 December, 1847) in its first chapter titled ‘Bourgeois and Proletarians’ it is further elaborated:

 

Hitherto, every form of society has been based, as we have already seen, on the antagonism of oppressing and oppressed classes. But in order to oppress a class, certain conditions must be assured to it under which it can, at least, continue its slavish existence. The serf, in the period of serfdom, raised himself to membership in the commune, just as the petty bourgeois, under the yoke of the feudal absolutism, managed to develop into a bourgeois. The modern labourer, on the contrary, instead of rising with the process of industry, sinks deeper and deeper below the conditions of existence of his own class. He becomes a pauper, and pauperism develops more rapidly than population and wealth. And here it becomes evident, that the bourgeoisie is unfit any longer to be the ruling class in society, and to impose its conditions of existence upon society as an over-riding law. It is unfit to rule because it is incompetent to assure an existence to its slave within his slavery, because it cannot help letting him sink into such a state, that it has to feed him, instead of being fed by him. Society can no longer live under this bourgeoisie, in other words, its existence is no longer compatible with society.

[187] International Energy Agency ‘Net Zero by 2050 A Roadmap for the Global Energy Sector’ (4th revision, IEA 2021) 32.

[188] Sean Hargrave ‘Shining a new light on poverty could help put the ‘S’ back in ESG’ Raconteur (London, 20 October 2022) < https://www.raconteur.net/corporate-social-responsibility/poverty-put-the-s-back-in-esg/> accessed 10 August 2023.

[189] Fichtner J, Heemskerk EM and Garcia-Bernardo J, ‘Hidden Power of the Big Three? Passive Index Funds, Re-Concentration of Corporate Ownership, and New Financial Risk’ (2017) 19 Business and Politics 298.

[190] F de Silanes, J McCahery and P Pudschedl, Institutional Investors and ESG Preferences, ECGI Law Working

Paper 631/2022; Gomtsian S, ‘Different Visions of Stewardship: Understanding Interactions between Large Investment Managers and Activist Shareholders’ (2022) 22 J.C.L.S 151.

[191] Paul Davies, ‘Shareholder Voice and Corporate Purpose: The Purposeless of Mandatory Corporate Purpose Statements’ (November 1, 2022), European Corporate Governance Institute - Law Working Paper No. 666/2022, <SSRN: https://ssrn.com/abstract=4285770> accessed 10 August 2023.

[192] Mayer (n 6).

[193] ibid 6; Davies (n 191) 28.

[194] J Gordon, ‘Systematic Stewardship’, ECGI Law Working Paper 566/2021 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3782814> accessed 10 August 2023; John C. Coffee, Jr., ‘The Coming Shift in Shareholder Activism: From “Firm-Specific” to “Systematic Risk” Proxy Campaigns (and How to Enable Them)’, [2021] Brook J Corp Fin & Com L 45.

[195] Ibid.

[196] Roberto Tallarita, 'The Limits of Portfolio Primacy' (2023) 76 Vand L Rev 511; Also see Ian MacNeil and Irene-Marie Esser, ‘From a Financial to an Entity Model of ESG’ (2022) 23 Eur Bus Org Law Rev 9.

[197] ibid. See also Jeff Schwartz, ‘Stewardship Theater’ (2022) 100 Washington University Law Review, University of Utah College of Law Research Paper No. 492.

[198] BTI 2014 LLC v Sequana SA & Ors [2022] UKSC 25; Keay, Andrew R., The Duty to Promote the Success of the Company: Is it Fit for Purpose? (August 20, 2010). University of Leeds School of Law, Centre for Business Law and Practice Working Paper, <https://ssrn.com/abstract=1662411> accessed 10 August 2023.

[199] See concluding sentence in Colin Mayer’s article titled ‘The Role of Corporate Law Reconsidered: A Brief Response to Paul Davies’ (ECGI Blog 19 July 2022).

[200] Thomas Day and others ‘Corporate Climate Responsibility Monitor 2023’ (New Climate Institute 2023). 

[201] Marx ‘Historical Tendency of Capitalist Accumulation’ in Frederick Engels (ed) ‘Das Kapital A Critique of Political Economy’ (1st English edn Progress Publishers, 1887); Marx and Engels (n185) 44.

[202] Davies (n 191) 1.

[203] John Armour, Henry Hansmann, Reinier Kraakman and Mariana Pargendler, ‘What is corporate law?’ in ‘The Anatomy of Corporate Law: A Comparative and Functional Approach’ (2nd edition Oxford University Press 2009).

[204] Jeffrey N. Gordon, 'The Mandatory Structure of Corporate Law' (1989) 89 Colum L Rev 1549.

[205] Marcel Kahan & Edward Rock, 'Embattled CEOs' (2010) 88 Tex L Rev 987.

[206] Strine, Jr, Leo E., ‘Corporate Power is Corporate Purpose I: Evidence from My Hometown’ (2016) Oxford Review of Economic Policy, Forthcoming, U of Penn, Inst for Law & Econ Research Paper No. 16-34, Harvard Law School John M. Olin Center for Law, Economics, and Business Discussion Paper no. 895.<https://ssrn.com/abstract=2906875> accessed 10 August 2023.

[207] Kosmin, Leslie, QC, and Catherine Roberts, 'Written Resolutions of Private Companies', Company Meetings and Resolutions: Law, Practice, and Procedure (New York, 2020; online edn, Oxford Academic).

[208] Mara Faccio and Larry H.P. Lang, the Ultimate Ownership of Western European Corporations, 65 J. financ. econ. 365, 379–80; Directive (EU) 2017/828 of the European Parliament and of the Council of 17 May 2017 amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement (Text with EEA relevance) OJ L 132/1.

[209] Davies (n 191) 24.

[210] Mayer (n 199) 2. 

[211] Josh Bivens ‘Corporate profits have contributed disproportionately to inflation. How should policymakers respond?’ Economic Policy Institute (Washington, 21 April 2022) (EPI, 2022) <https://www.epi.org/blog/corporate-profits-have-contributed-disproportionately-to-inflation-how-should-policymakers-respond/> accessed 10 August 2023; Isabella Weber ‘Could strategic price controls help fight inflation?’ The Guardian (London, 29 December 2021) <https://www.theguardian.com/business/commentisfree/2021/dec/29/inflation-price-controls-time-we-use-it> accessed 10 August 2023.

[212] Ramsi A. Woodcock, 'The Antitrust Case for Consumer Primacy in Corporate Governance' (2020) 10 UC Irvine L Rev 1395.

[213] ibid 1404; Stephen M. Bainbridge, 'Participatory Management within a Theory of the Firm' (1996) 21 J Corp L 657;

[214] Jensen Meckling, ‘Value Maximisation, Stakeholder Theory, and the Corporate Objective Function’, (2001) 7 European Financial Management 297-317.

[215] Woodcock (n 212) see footnote 57; Alfred Marshall, Principles of economics (8th edition, 1920) 684.

[216] Woodcock (n 212) 1405.

[217] Alan Mitchell Polinsky, an introduction to law and economics 86-87 (1st edition, 1983) (observing that when price equals cost, owners and managers of the firm still receive adequate compensation).

[218] Woodcock (n 212) 1399.

[219] ibid.

[220] Bork (n 130) 159.

[221] Marshall (n 215) 684.

[222] Ramsi A. Woodcock, 'The Antitrust Duty to Charge Low Prices' (2018) 39 Cardozo L Rev 1741.

[223] Mayer (n 6) 20.

[224] ibid.

[225] Davies (n 191) 38.

[226] John Armour, Luca Enriques & Thom Wetzer, 'Green Pills: Making Corporate Climate Commitments Credible' (2023) 65 Ariz L Rev 285.

[227] Dorothy S. Lund, Corporate Finance for Social Good 121 Colum. L. Rev. 1617 (2021), 1628-1630.

[228] John and others (n 203) 39.

[229] ibid.

[230] John and others (n 203) 9; Friedman (n 83) 

[231] Woodcock (n 212) 1415.

[232] Alastair Marsh & Benjamin Robertson, Carney Calls Net-Zero Ambition “Great Commercial Opportunity”, (Bloomberg, 9 November 2020), <https://www.bloomberg.com/news/articles/2020-11-09/carney-calls-net-zero-ambition-greatest-commercial-opportunity> accessed 10 August 2023.

[233] Matthias Pickl, ‘The Renewable Energy Strategies of Oil Majors – From Oil to Energy?’ (2019) 26

ScienceDirect 100370.

[234] Mayer (n 6) 229.

[235] Tanweer Ahmed ‘The Cling Effect: A Story of Underdevelopment in Postmodern Times’ (Book Home, 2021) 120.

[236] Noam Chomsky ‘The State-Corporate Complex: A Threat to Freedom and Survival’ (Chomsky.info, 7 April 2011) <https://chomsky.info/20110407-2/> accessed 10 August 2023.

[237] Ibid.

[238] Mayer (n 6) 45

[239] Adam Smith ‘The Theory of Moral Sentiments’ (Knud Haakonssen ed, Cambridge University Press 2002)

[240] Ian Ross, 'Criticism of The Theory of Moral Sentiments', The Life of Adam Smith (Oxford, 1995; online edn, Oxford Academic, 1 Nov. 2003), <https://doi.org/10.1093/0198288212.003.0012> accessed 10 August 2023.

[241] Bertrand Russel, ‘History of Western Philosophy’ (Simon and Schuster, 1945) 611.

[242] Paul Collier, ‘The Future of Capitalism: Facing the New Anxieties’ (Harper, 2018) 210.

[243] William L. Anderson, Boom Bust (Foundation for Economic Education, 1 January 1983) < https://fee.org/articles/boom-bust/> accessed 10 August 2023; Kimberly Amadeo ‘Boom and Bust Cycle, Causes, History, and How to Protect Yourself’ (The Balance, 23 November 2021) <https://www.thebalancemoney.com/boom-and-bust-cycle-causes-and-history-3305803> accessed 10 August 2023.

[244] Chomsky (n240) 11- 12, Chomsky argues that taxpayer money bails out the elite in such market crashes also see ‘sunset technique’ of tax rebates which shift towards the rich.

[245] Ibid 10.

[246] Michael O’Sullivan ‘The Levelling: What’s next after Globalisation?’ (Hachette UK, 2019).   

[247] Ibid, 4.

[248] Colin Mayer and Bruno Roche ‘Putting Purpose Into Practice: The Economics of Mutuality (Oxford, 2021; online edn, Oxford Academic, 22 Apr. 2021), https://doi.org/10.1093/oso/9780198870708.001.0001 accessed 10 August 2023.

[249] Enacting Purpose Initiative (2020), ‘Enacting Purpose within the Modern Corporation: A Framework for Boards of Directors.’ <https://enactingpurpose.org/assets/enacting-purpose-initiative---eu-report-august-2020.pdf> accessed 10 August 2023. See ‘SCORE’ framework on page 5.

[250] Judith Stroehle, Kazbi Soonawalla and Marcel Metzner, ‘How to Measure Performance in a Purposeful Company? Analysing the Status Quo.’ [2019] SSRN Electronic Journal <https://www.researchgate.net/publication/338473666_How_to_Measure_Performance_in_a_Purposeful_Company_Analysing_the_Status_Quo-> accessed 10 August 2023.

[251] Mayer and Roche (n 248) 201.

[252] ibid 4.

[253] See chapter 1 (n 15).

[254] The British Academy, Future of the Corporation ‘Principles for Purposeful Business’ (British Academy, 2019) 19 <https://www.thebritishacademy.ac.uk/publications/future-of-the-corporation-principles-for-purposeful-business/> accessed 10 August 2023. 

[255] Mayer (n 6) 43. He specifically refers to the Carnegies, Mellons, Rockefellers, and Vanderbilts.

[256] Chomsky (n240) 11.

[257] In UK, the ‘Enough is Enough’ campaign mentions on its website ‘Misery forced on millions by rising bills, low wages, food poverty, shoddy housing’ (Enough is Enough, 2023) <https://wesayenough.co.uk/> accessed 10 August 2023.

[258] ‘A New Deal for Working People’ (Labour Party, 2021) <https://labour.org.uk/page/a-new-deal-for-working-people/> accessed 10 August 2023; In US, see a number of union friendly changes to undo Trump era of legislation, Daniel Wiessner ‘Union-friendly changes in the works at U.S. labor board’ Reuters (Reuters, 3 January 2023) <https://www.reuters.com/legal/litigation/union-friendly-changes-works-us-labor-board-2023-01-03/> accessed 10 August 2023.

[259] Sugden, Robert, 'Rational Choice: A Survey of Contributions from Economics and Philosophy' (1991) 101(407) The Economic Journal 751.

[260] Larry Di Matteo, 'Artificial Intelligence' in ‘The Cambridge Handbook of Artificial Intelligence’ (Cambridge University Press 2014).

[261] Rob Toews ‘The Next Generation of Large Language Models’ Forbes (New Jersey , 7 February 2023)

[262] The requirement of a data protection officer is prescribed by the GDPR, however the CPO would additionally serve as a link between the regulatory body, in house legal department and the DPO, if relevant as per the jurisdiction.

[263] EU AI Act and Blueprint for an AI Bill of Rights.

[264] 15 U.S.C. 6501–6508.

[265] See chapter 2 (n 200)

[266] See chapter 2 (n 226)

[267] Mayer (n 6) 214.

[268] Ibid 221.

[269] Ibid 219.

[270] Eric Chin-Ru Chang ‘The WTO Waiver on COVID-19 Vaccine Patents’ (2022) 70 UCLA LAW REVIEW 74.  (UCLA Law Review, 27 January 2023) <https://www.uclalawreview.org/the-wto-waiver-on-covid-19-vaccine-patents/> accessed 10 August 2023.

[271] OECD, ‘International Regulatory Co-operation, OECD Best Practice Principles for Regulatory Policy’, (OECD Publishing, 2021) <https://doi.org/10.1787/5b28b589-en> accessed 10 August 2023.

[272] Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting (Text with EEA relevance) [2022] OJ L 322/15.

[273] Robeco ‘Stewardship Report’ 11 (Robeco Sam, 2021) < https://www.frc.org.uk/getattachment/fb62cda6-94da-43fd-b4ed-99e003747a03/Robeco-s-Stewardship-Report-2021.pdf#page=11> accessed 10 August 2023.

[274] Henry Dyer, Sam Cutler, Mario Savarese and Dominic Kendrick ‘Revealed: shares held ‘in secret’ by scores of MPs raise questions about vested interests’ The Guardian (London, 9 July 2023) < https://www.theguardian.com/politics/2023/jul/09/revealed-shares-held-in-secret-by-scores-of-mps-raise-questions-about-vested-interests> accessed 10 August 2023. 

[275] Emily Stewart ‘Even Congress thinks its members should stop playing the stock market’ (Vox, 21 July 2023) < https://www.vox.com/politics/2023/7/21/23802923/congress-stock-trading-ban-gillibrand-hawley-bill-pelosi> accessed 10 August 2023.

[276] Irving L Janis, ‘Victims of Groupthink: A psychological study of policy decisions of policy decisions and fiascos’ (Houghton Mifllin 1972).

[277] Low, Kelvin F.K. and Wan, Wai Yee and Wu, Ying-Chieh, The Future of Machines: Property and Personhood (July 22, 2021). Ernest Lim and Phillip Morgan (eds), ‘The Cambridge Handbook of Private Law and Artificial Intelligence’ (Cambridge University Press, forthcoming) <https://ssrn.com/abstract=3895535> accessed 10 August 2023. 

[278] Business Roundtable ‘Business Roundtable Redefines the Purpose of a Corporation to Promote “An Economy That Serves All Americans”’ (Business Roundtable, 19 August 2019) <https://www.businessroundtable.org/business-roundtable-redefines-the-purpose-of-a-corporation-to-promote-an-economy-that-serves-all-americans> accessed 10 August 2023.

[279] Easterbrook and Fischel (n 102).

[280] Keay (n 92) 284.

[281] Ibid, 296.

[282] Ibid, 285.

[283] Margaret Blair & Lynn. Stout, ‘Director Accountability and the Mediating Role of the Corporate Board’, (2001) 79 WASH U. L.Q.  438–39.

[284] Michael E Porter and Mark R Kramer, ‘Creating Shared Value’ (2011) Harv.Bus.Rev. 5.

[285] Bruner (n 77) 1262.

[286] Ibid.

[287] Congress.gov, Library of Congress ‘Text - S.3348 - 115th Congress (2017-2018): Accountable Capitalism Act.’, 15 August 2018, (Congress.gov, 2018) <https://www.congress.gov/bill/115th-congress/senate-bill/3348/text.> accessed 10 August 2023; Ann Lipton ‘Benefit Corporations Go Public’ (LPB Network, 18 July 2020) <https://lawprofessors.typepad.com/business_law/2020/07/benefit-corporations-go-public.html> accessed 10 August 2023.

[288] Mayer n(6) 42

[289] Ibid, 107.

[290] Ashworth W, 'British Industrial Villages in the Nineteenth Century' (1951) 3(3) The Economic History Review 378.

[291] Meyers ‘The sweet secret world of Forrest Mars’ (1967); Joseph Needham, ‘The Grand Titration: Science and Society in East and West’ (University of Toronto Press, 1969) 312.

[292] Mayer and Roche (252) 375.

[293] N (6) 40.

[294] Henry Hansmann, Steen Thomsen, ‘The Governance of Foundation-Owned Firms’ (2021) 13 Journal of Legal Analysis 172.

[295] Ibid.

[296] Thomsen, Steen and Poulsen, Thomas and Børsting, Christa and Kuhn, Johan, Industrial Foundations as Long-Term Owners (March 1, 2018). European Corporate Governance Institute (ECGI) - Finance Working Paper No. 556/2018, <http://dx.doi.org/10.2139/ssrn.2725462> accessed 10 August 2023.

[297] N (6) 122.

[298] Collier and others (n183) 51.

[299] Ibid, 48.

[300] ibid.

[301] Richard Peet ‘Unholy trinity: the IMF, World Bank and WTO’ (Palgrave Macmillan, 2009).

[302] Glen Biglaiser and Ronald J McGauvran, ‘The Effects of IMF Loan Conditions on Poverty in the

Developing World’ (2022) 25 Journal of International Relations and Development 806.

[303] Robert Lensink, ‘Structural adjustment in Sub-Saharan Africa’ (1st ed., Longman, 1996).

[304] Abid Hussain ‘Exceptionally high’ economic risks in Pakistan, IMF report’ Al Jazeera (Karachi, 19 July 2023); Syed Abdul Khaliq ‘The IMF and World Bank have lost all legitimacy. We need new alternatives’ (open Democracy, 10 April 2019).

[305] Hassan Askari Rizvi, 'Civil-Military Relations and National Stability in South Asia' (1989) 42(2) Pakistan Horizon 47.

[306] Pervez Hoodbhoy ‘Pakistan Origins, Identity and Future’ (Routledge, 2023);

[307] Abdul Sattar Edhi and Khabir Ahmad, 'Karachi's quiet revolutionary' (2004) 328(7443) BMJ: British Medical Journal 790 <http://www.jstor.org/stable/41707301> accessed 10 August 2023.

[308] Usama Khilji ‘Abdul Sattar Edhi: The philanthropist who filled in for the state in Pakistan’ (London School of Economics and Political Science, 15 July 2016)

[309] UN WFP ‘The 8 Countries Most Affected by Climate Change’ (UN WFP, 21 April 2023)

[310] United Nations ‘System of Environmental Economic Accounting’ (SEEA) <https://seea.un.org/> accessed 10 August 2023.

[311] ISO ‘Goal 13: Climate Action Take urgent action to combat climate change and its impacts’ < https://www.iso.org/sdg/SDG13.html> accessed 10 August 2023. 

[312] Anna Blake ‘The European ESG Template (EET), a new complex and ambitious project developed by FinDatEx’ (Greenomy) <https://greenomy.io/blog/european-esg-template> accessed 10 August 2023.

[313] Deena Robinson ‘What is the “Tragedy of the Commons”?’ (Climate Change policy & Economics, 5 September 2021) < https://earth.org/what-is-tragedy-of-the-commons/#> accessed 10 August 2023.

[314] N (6) 127

[315] ibid.

[316] Mayer (n 6) 40.

[317] Krystal Hu ‘ChatGPT sets record for fastest-growing user base - analyst note’ Reuters (London, 2 February 2023) <https://www.reuters.com/technology/chatgpt-sets-record-fastest-growing-user-base-analyst-note-2023-02-01/> accessed 10 August 2023.