A Critical Examination of the Impact of Section 172 of the Companies Act 2006

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A Critical Examination of the Impact of Section 172 of the Companies Act 2006 There has been a plethora of debate surrounding the approach to directorial decision making in the scheme of corporate governance. A divergence has emerged between numerous schools of thought as to whose interests the directors are to consider in conducting the company’s management. The approach under English law is codified under section 172 Companies Act 2006 (‘CA 2006’) which professes an‘enlightened shareholder value’ approach to corporate governance. This has given rise to scrutiny and challenge from numerous critics but most notably from proponents of the ‘stakeholder management’ stance. The aim here is therefore to evaluate the scope and impact of section 172 and consider the possible alternatives whilst seeking to establish whether section 172 can be considered a positive development within company law. 1. Previous approach Under the common law, directors were required to act in good faith in what they believed to be in the company’s best interests. The main problem was that the company is a legal abstraction and acting in the ‘company’s interests’ is a fairly obscure and elusive concept; thus reform was necessary so that directors could ascertain what the ‘company’s interests’ actually entails i.e. whose interests it is referring to[1]. Moreover, under section 309 Companies Act 1985, directors were to have regard to the ‘interests of the company's employees in general, as well as the interests of its members.’ This suggested that members and employees could feature in decision making but there was no stipulation as to whose interests were predominant and directorial discretion was arguably too wide. The provision was also quite otiose given that employees had no right of enforcement and reform was needed to restore some clarity.[2] 2. Section 172 CA 2006 Section 172
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