James Kirkbride

Corporate governance theorising: limits, critics and alternatives

Purpose – This paper seeks to examine the mainstream theories of corporate governance in an attempt to suggest that their underlying assumptions and ideologies are misplaced and ought to give way to an emerging pluralistic view of the governing process in order to understand any governance contribution to the dynamics of the business environment.Design/methodology/approach – The paper engages with the traditional literature and views on governance models from law, business and organisational studies perspectives. It then considers the environment and changes in the environment and how those challenge the relevance of the traditional approach, drawing upon the impacts on the fluidity of management and governance perspectives and practices in the global economy.Findings – The reflections and analysis confirm the view that the underlying assumptions of existing models and regulatory frameworks for governance are misplaced and it is suggested, with reason, that a pluralistic view and framework are better than...

Minority shareholders and corporate governance

Purpose – The purpose of this paper is to compare the response in the UK, the USA and China to the need to provide effective protection in law to disgruntled minority shareholders.Design/methodology/approach – The study draws upon official comment and case law across the three jurisdictions in order to assess the scope and availability of minority actions.Findings – The importance of shareholder rights through alternative actions is an important aspect of controlling the behaviour and actions of the Board of Directors and an important part of corporate governance. This paper seeks to compare the development and scope of derivative rights in the UK, the USA and in China and provides an assessment and insight into the differences in approach and in the political and legal structures with the consequent likely impact on the role and contribution of derivative claims in the control and governance of Boards in the different jurisdictions.Originality/value – The study should prove of interest to scholars of com...

Private equity and the UK market: some “real” concerns

Purpose – The paper aims to look at the growth of private equity and to consider the concerns that the public and media have raised, as well as the response to these concerns.Design/methodology/approach – This article is an opinion piece based on current and recent trends.Findings – It is difficult to ascertain whether the publics’ concerns are real or are media lead. The tax changes have also caused concern in the private equity business with a belief that they will drive investors out of the UK market and reduce the competitiveness and attractiveness of the UK for the private equity investor.Originality/value – The key may involve more transparency in the private equity industry as this may help resolve some of the growing public and political distrust. The paper also suggests that to attain a better understanding in this area, the competitive position of the UK market needs to be recognised.

Philosophical Underpinnings to Corporate Governance: A Collibrational Approach

The current debate on corporate governance can be characterised as a search for the perfect model. The academic discourse is polarised either on the shareholder paradigm, where the primary focus is on maximisation of shareholder wealth, or on the stakeholder paradigm, where a broader set of issues are presented as pertinent to best practice corporate governance. In the practitioner discourse, the debate is fundamentally focused on practical mechanisms to discipline directors and other actors where the emphasis is on developing regulation either in the form of law or codes. We argue that both discourses rely on a homeostatic view of the corporation and its governance structures. Further, we argue that both discourses pay inadequate attention to the underlying philosophical presuppositions resulting in a static approach to the understanding of corporate governance. We present an alternative, a processual approach, as a means of avoiding the traditional trap in corporate governance theorising. Using this approach, we argue that a collibrated mechanism is more likely to emerge and consequently a better understanding of the heterogeneity of corporate governance practice will follow, providing deeper insight into the fluxing nature of corporate bodies and their governance structures.

Does the criminal law have a role in the corporate setting

The use of criminal law in the corporate setting has risen in the Corporate Governance agenda in recent months. Compelled by the prosecutions of six former Railtrack plc senior managers, the paper discusses the relevance of criminal law as a disciplining force on directors and managers. The paper provides a detailed case study of Railtrack plc drawing out the major issues of relevance in applying the criminal law to a large complex company such as Railtrack plc.

The challenges of private antitrust enforcement in transition economies

Purpose – The purpose of this paper is to examine the practical and legal challenges and barriers to the development of a private action in antitrust controls and to project those onto a consideration of the development of such rights of action through a case study of Brazil.Design/methodology/approach – The paper provides a critical review of both the theoretical and practical barriers to the development of private rights of action, drawing upon the history of development in both the USA and in Europe and the regular considerations of policy and law making, through debate at the Organisation for Economic Co‐operation and Development. This comparative and historical analysis is projected into models of design and delivery for consideration by law makers.Findings – Despite the different legal traditions and policy considerations of the different jurisdictions, the fundamental design of a common action pan‐jurisdictions and outwith conflict of law principles might be possible. The paper proposes a design fr...