Corporate governance involves the rules and practices that direct and control the decision-making of a corporation. The allocation of discretionary decision rights to individuals in organisations directly connects corporate governance with the principles of contributive justice. In this chapter, we start from Amartya Sen’s The Idea of Justice to provide a perspective on organisational justice and explore the process towards achieving contributive justice as far as determined by the patterns of corporate governance of the organisation. Specifically, we argue that just corporate decision-making needs to build on the contribution of stakeholders to the corporation. This argument is captured by a conceptualisation of justice in terms of contributive justice (see Chapter 3). The emphasis on contributive justice within corporate governance is further developed in a generalised stewardship theory as a model of governance that orients stakeholders towards advancing the collective benefit. The generalised stewardship approach to corporate governance particularly emphasises the contributive aspect of organisational participation, emphasising not only transparency and ex post accountability on the distribution of resources and outcomes but also ‘process accountability’, equity, and integrity.

A fundamental pillar of the European Commission’s Strategy for Financing the Transition to a Sustainable Economy, harmonized sustainability reporting is functional to giving substance to a company’s sustainability endeavors, to identifying a shared classification system for sustainable activities, to tackling greenwashing, and to helping institutional investors meet the disclosure obligations they, in turn, are imposed on by the SFDR. While institutional investors remain the main users of corporate sustainability disclosures, yet sustainability reporting facilitates interaction between investors and other stakeholders, such as NGOs, as a lever by which to enhance stakeholders’ voice and overcome the limited ability of broadly diversified institutions, especially passive fund managers, to actively monitor portfolio firms and reduce systematic portfolio risk. In order for EU sustainability reporting to deliver on its promises, two factors are crucial. First, the current fragmentation of non-financial reporting standards based on different frameworks and, particularly, on diverging notions of materiality, should be overcome. Second, an adequate balance between the narrative and quantitative dimensions of sustainability reporting should be struck in order not only to make sustainability disclosures meaningful for its users, but also to allow for mutually connecting, and achieving coordination between, financial and non-financial information.

In this chapter, I analyse the main trade-offs between the economic value of the firm and its social value, exploring how they are solved through corporate governance and regulatory constraints. To begin with, I show how firms generate social value while also increasing their long-term value under the enlightened shareholder value approach. Thanks to organizational and technological innovation, firms are led to change their business models and organization to enhance environmental and social sustainability and increase long-term profitability. In addition, managers promote their firms’ sustainability in compliance with ethical standards which are part of corporate culture. In similar situations, generating social value may determine pure costs to the enterprise. I argue therefore that the perspective of instrumental stakeholderism appears too narrow, for situations exist where non-economic values are also relevant to the firm. The importance of ethics is especially underlined by CSR and stakeholder theory. Moreover, management studies emphasize the role of corporate governance and organizational theory in the promotion of social value. The board of directors should identify the ethical and cultural values of the firm and monitor their application at all levels. In addition, organizational purpose plays a fundamental role for the ‘intrinsic’ motivation of people in corporations. The international soft law on corporate due diligence further contributes to the design of corporate purpose and to the motivation of managers and employees. Once corporate due diligence is recognized by European hard law through the proposed Directive, specific obligations will arise for companies which will impact their governance and could become a source of civil liability. As a result, the corporate purpose orientation to sustainability will be reinforced by the regulation of environmental and human rights externalities and by the due diligence obligations deriving from it.

This chapter argues that the existing corporate laws of the four Asian jurisdictions and the laws regulating social enterprises in the US and UK that deal with purpose are generally ineffective in preventing the subordination of social benefit to profit; the laws are inadequate to ensure that social benefit is prioritized. Thus, I argue that in my proposed legal form, under the first criterion, there should be a requirement to the following effect that “on the whole, the pursuit and delivery of social benefit is prioritised over profit-making except where doing so will have a material and adverse effect on the financial viability of the social enterprise.” To make this argument, I first distinguish between corporate interest, corporate object, and corporate interest. I then examine the company laws of the four common law Asian jurisdictions, followed by the US benefit corporation and social purpose corporation as well as the UK community interest company. Subsequently, I propose a corporate purpose to which social enterprises should adhere and I show how this purpose can be privately and publicly enforced.

One of the key claims of advocates of stakeholder capitalism, especially those in the legal academy, is that the foundational case – Dodge v. Ford Motor Co. – was not good law when it was first written, the key part of the decision, is mere dicta, and subsequent legal developments have undercut whatever validity the decision may have had at one time. All of these claims are demonstrably false. As Chief Justice Leo Strine put it, those who claim that shareholder value maximization is not the law are pretending.

Shareholder value maximization is the law. It ought to be the law. This is, in part, because the chief alternative available in liberal democratic societies – stakeholder capitalism – is fundamentally flawed. If executives such as those who signed the Business Roundtable’s 2019 statement on corporate purpose really tried to run their companies according to the altruistic principles laid out therein, they would find it an impossible task. Developing the set of objective and quantifiable metrics necessary to operationalize stakeholder capitalism will prove an intractable problem. Even if the requisite set of metrics could be designed, boundedly rational managers cannot reasonably be expected to balance the huge number of competing factors necessary to account for the varied interests of the firm’s many constituencies.

AP Smith Mfg. Co. v. Barlow is the seminal case on the fiduciary duties of corporate directors with respect to profit maximization and corporate philanthropy. The chapter provides the factual context of the case and analyzes the law. The chapter situates the case in the famous debate between Adolf Berle and E. Merrick Dodd over shareholder value maximization. It provides context for the business communitys approach to shareholder capitalism.

There are very few cases holding directors liable for failing to maximize shareholder value. The reason is the business judgment rule, a corporate law doctrine that precludes judges from reviewing the merits of director decisions absent some evidence of fraud, illegality, self-dealing, failure to make an informed decision, or waste of corporate assets. Shlensky v. Wrigley is the classic case of the business judgment rules application to cases in which the directors are alleged to have failed to maximize profit.

Defines the terms corporation, corporate purpose, shareholder value maximization, stakeholders, stakeholder capitalism, corporate social responsibility, and ESG (environmental, social, and governance). Provides the plan of the work.

Stakeholder capitalism results in a loss of accountability, as executives who are responsible to everyone are responsible to no one. Stakeholder capitalism would be extremely difficult to implement. Proposed means of doing so – such as constituency boards, codetermination, and team production – are all unworkable. Stakeholder capitalism is inconsistent with democratic capitalism. Shareholder value maximization is the result that would emerge if shareholder and stakeholders could bargain (the so-called hypothetical bargain). Shareholder capitalism is pro-social. The profit motive results in socially efficient resource allocation. The profit motive is an essential motivational spark for innovation. The profit motive promotes freedom.

Dodge v. Ford Motor Co. is the seminal case on the fiduciary duties of corporate directors with respect to profit maximization. The chapter provides the factual context of the case and analyzes the law.

The 2019 shift in position by the Business Roundtable CEOs from their traditional embrace of shareholder value maximization to stakeholder capitalism attracted enormous attention. Oddly, however, the CEOs offered nothing but platitudes to explain their shift. This chapter explores possible explanations for their shift. Were the Business Roundtable CEOs woke? It is true that CEO activism leans left but the profit motive survives. Were the Business Roundtable CEOs responding to changes in consumer, investor, and labor demands? Were the Business Roundtable CEOs responding to Green Activist Investors? Were the Business Roundtable CEOs trying to fend off regulation? Were the Business Roundtable CEOs just cynical oligopolists? All of these prove possible but unlikely explanations. Two more plausible explanations are that the Business Roundtable CEOs were pining for the days of Imperial CEOs, because stakeholder capitalism inevitably means that CEOs are less accountable, and that the Business Roundtable CEOs were greenwashing.

The conclusion higlights continuing challenges for the EU and the rest of the world and how the future humanity faces is uncertain. Yet an optimistic message is also presented. Noting that shareholder primacy is increasingly coming under question and a growing interest in the concepts of corporate purpose and sustainable value creation, the conclusion draws upon the suggestions made among the chapters throughout the book to highlight the potential for corporations to be a force for good if supported by more effective legal and regulatory reforms and operating with more innovative structures and technologies. More stable, resilient and democratic institutional structures are necessary too as is the inclusion of active political and entrepreneurial women. Also fundamental to change is setting sustainable value creation within planetary boundaries as an overarching purpose for business, with mandatory rules to ensure that sustainability is integrated into the governance of business across global value chains. In a policy coherence for sustainability perspective, the book concludes by positioning the research-based reform proposals for business and finance within broader European Union laws and policies, underlining the necessity of reform also of other related areas, including circular economy policies, competition and state aid law and public procurement.