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A Case for Shareholders' Fiduciary Duties in Common Law Asia
(International Corporate Law and Financial Market Regulation)Cambridge University PressThis book reconceptualises the role of the general meeting and shareholders in the listed companies in four leading common law jurisdictions in Asia (Singapore, Hong Kong, India and Malaysia) as one that should include fiduciary duties. It demonstrates why, when, by whom and how fiduciary duties should be imposed and how they could be enforced. In so doing, it refutes the long-standing common law rule that shareholders can generally vote as they please. The book advances the debate on a central notion of corporate law, namely, the interests of the company. It addresses the deficiencies in the law regulating conflicts of interest involving controlling shareholders and institutional shareholders and provides solutions to the problem of activist and passive minority institutional investors. This book challenges us to rethink the meaning and implementation of the long-term success of the company and shows how corporate governance should and could be made.
Professor Lim’s book is an impressive contribution to an important corporate governance debate regarding the role of shareholders. By combining excellent doctrinal, empirical and policy-focused research, he argues for a reconceptualisation of the role of shareholders in listed companies, including the imposition of fiduciary duties on these shareholders. The book primarily focuses on listed companies in Hong Kong, Singapore, India and Malaysia but is undoubtedly of broad international significance. Many will benefit from reading this insightful and thought-provoking book.
— Ian Ramsay - Harold Ford Professor of Commercial Law and Redmond Barry Distinguished Professor, University of MelbourneThis book makes a trenchant and compelling case for imposing legal responsibility on corporate shareholders in the four Asian common law jurisdictions, drawing assuredly on jurisprudence, doctrine, best practice and actual practice. With insight, skill and erudition, the author makes the strongest case yet for root-and-branch revision of the Anglo-Saxon approach to the rights and duties of corporate participants. This is essential reading for anyone seriously interested in corporate governance, whether in common law Asia or anywhere in the world.
— William W. Bratton - Nicholas F. Gallicchio Professor of Law, and Co-Director, Institute for Law and Economics, University of PennsylvaniaControlling shareholders are the norm for most of the world's companies. There are a wide range of mechanisms by which such controllers can influence corporate activities to their own benefit and to the detriment of minority shareholders. In this important book, Ernest Lim presents cogent arguments for a reassessment of the position in Asian company laws under which controllers are generally not subject to fiduciary duties. The author also makes a case for institutional shareholders to be subject to fiduciary duties because of conflicts of interest between them and the company. This book will challenge readers to rethink the function of corporate governance.
— John Armour - Hogan Lovells Professor of Law and Finance, University of Oxford and Fellow of the British Academy and European Corporate Governance InstituteA central thesis of this impressive work is that a company's members in general meeting, as well as its board of directors, are agents of the company, and as such are subject to fiduciary obligations. This book will be valuable to those who research and advise on not only company law, corporate governance and Asian jurisdictions, but also equity and common law more generally.
— Robert Walker - Lord Walker of Gestingthorpe, former Justice of the United Kingdom Supreme Court and Non-Permanent Judge, Hong Kong Court of Final AppealThis book makes a major contribution to contemporary debate about the role of shareholders (both institutional and controlling shareholders) and to comparative corporate governance generally. It reconceptualises shareholders and advances the 'provocative thesis' that, in common law Asia, shareholders should be subject to fiduciary duties. The book will be of interest to corporate law scholars and practitioners, and to anyone seeking to understand the growing legal and economic significance of East Asia.
— Jennifer Hill - University of SydneyThe argument is multitextured and tightly knit. Along the way, Lim queries central assumptions that have underpinned company law in common law jurisdictions … Lim’s study is pioneering as the first work that critically examines the concept of the company interest, including the idea of imposing fiduciary duties on controlling shareholders, in common law Asia … The book bristles with ideas that will have application in other common law jurisdictions not just those in Asia. The book is a delight to read. I unreservedly recommend it.
— Anselmo Reyes Source: Modern Law ReviewIn his elegant study, Professor Lim points to important contemporary differences in the legal culture of businesses and their regulation between the Asian common law jurisdictions on the one hand and the United Kingdom (UK) on the other … Professor Lim’s excellent study also points to important contemporary differences in the legal culture of businesses between the Asian common law jurisdictions … Overall, this is a learned, innovative, and well-written study that should be invaluable for many scholars, including in particular all those working on corporate law issues, and comparative law scholars more generally.
— Michael Palmer Source: Journal of Comparative LawIn his elegant study, Professor Lim points to important contemporary differences in the legal culture of businesses and their regulation between the Asian common law jurisdictions on the one hand and the United Kingdom (UK) on the other … Professor Lim’s excellent study also points to important contemporary differences in the legal culture of businesses between the Asian common law jurisdictions … Overall, this is a learned, innovative, and well-written study that should be invaluable for many scholars, including in particular all those working on corporate law issues, and comparative law scholars more generally.
— Michael Palmer Source: Journal of Comparative Law -
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Social Enterprises in Asia: A New Legal Form
(International Corporate Law and Financial Market Regulation)Cambridge University PressSocial enterprises are regarded as a vital solution to the pressing problem of socio-economic inequality and play a crucial role in the delivery of public goods and services. Ernest Lim argues that social enterprises in four leading Asian jurisdictions – India, Hong Kong, Singapore and Malaysia – should have a new legal form. This entails advancing a nuanced and comprehensive framework consisting of five criteria: (1) corporate purpose; (2) directors' duties; (3) decision-making powers; (4) reporting, impact measurement and certification; and (5) distribution of dividends, assets, and tax benefits. This invaluable work demonstrates that the existing legal forms in common law Asia, the UK and the US do not properly address the various conflicts of interest affecting social enterprises. An essential read for those interested in understanding and evaluating the laws and regulations on social enterprises, as well as designing and implementing creative ones to protect and promote these important businesses.
There is a consensus that corporate governance should focus on the right thing – creating durable wealth for investors through the sale of safe and useful products and services, the respectful and fair treatment of all stakeholders, particularly workers, and sustainable, environmentally responsible conduct. But, unless we build on that shared belief across the full scope of the world's leading market economies, we won't succeed. In his important book spelling out positive steps for leading Asian market economies to embrace stakeholder capitalism, Professor Lim has enhanced the possibility of convergence with the B Corp movement in OECD and a future where all leading market economies channel company behavior in the way that produces the most real wealth and value.
— Leo E. Strine, Jr. - Former Chief Justice and Chancellor, the State of Delaware; Ira M. Millstein Distinguished Senior Fellow, Ira M. Millstein Center for Global Markets and Corporate Governance, Columbia Law School; Michael L. Wachter Distinguished FelloSocial Enterprises in Asia: A New Legal Form is a welcome addition to the growing literature on social enterprise law. Its comprehensive and readable guide to the gaps and uncertainties in existing legal forms for social enterprises in Hong Kong, India, Malaysia, and Singapore draws a wealth of information into a coherent framework for analysis. Using this baseline, Lim advances an ambitious proposal for a new legal form tailor-made to suit social enterprises' needs in these four common law Asian jurisdictions. In the process, the book grapples with the most significant corporate governance issues impacting social enterprises worldwide.
— Dana Brakman Reiser - Centennial Professor of Law, Brooklyn Law SchoolSocial Enterprises in Asia: A New Legal Form is a seminal work that addresses the pressing need for a dedicated legal framework to support the growth and sustainability of social enterprises in Asia. Lim’s comprehensive analysis and practical insights make this book an essential read for anyone involved in the social enterprise sector. By highlighting the unique challenges and proposing viable solutions, the author contributes significantly to the ongoing discourse on how to harness the power of business for social good. This book is highly recommended for policymakers, legal practitioners, academics, and anyone interested in the intersection of corporate law and social entrepreneurship. Its detailed examination of social enterprises’ legal, financial, and social dimensions makes it a valuable resource for understanding and advancing this important sector.
— Stelios Andreadakis Source: Asian Journal of Comparative LawTo conclude, Social Enterprises in Asia provides a major contribution to the literature on social enterprises by putting forward a new legal form tailored to the purposes of such enterprises. It is directly relevant and should be considered by stakeholders in the four Asian jurisdictions examined in the book, but the issues analysed are also relevant for other jurisdictions as well, including the UK and the US whose regulatory models are critiqued in the book.
— Stefan H. C. Lo Source: Cambridge Law Journal… a seminal work that addresses the pressing need for a dedicated legal framework to support the growth and sustainability of social enterprises in Asia. Lim’s comprehensive analysis and practical insights make this book an essential read for anyone involved in the social enterprise sector. By highlighting the unique challenges and proposing viable solutions, the author contributes significantly to the ongoing discourse on how to harness the power of business for social good. This book is highly recommended for policymakers, legal practitioners, academics, and anyone interested in the intersection of corporate law and social entrepreneurship. Its detailed examination of social enterprises’ legal, financial, and social dimensions makes it a valuable resource for understanding and advancing this important sector.
— Stelios Andreadakis Source: Asian Journal of Comparative Law -