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Increased Corporate Governance Powers of Shareholders and Regulators and the Role of the Corporate Regulator in Enforcing Duties Owed by Corporate Directors and Managers

Two related developments influencing the globalisation and internationalisation of corporate law and corporate governance are the increased powers that have been granted to shareholders and regulators. These developments are related because when legislatures empower shareholders and regulators they typically do this as a way of constraining management power. It is possible to discern a trend in a number of countries to grant increased powers to shareholders and regulators. Such a trend was evident before the recent financial crisis but the crisis has accentuated the trend. As part of the analysis, the paper examines the role of the corporate regulator in enforcing duties owed by corporate directors and managers. Particular attention is given to the Australian Securities and Investments Commission (ASIC) which, in recent years, has had a very prominent role in bringing actions for breaches of duty against corporate directors and managers. The article concludes by examining the advantages and disadvantages of public and private enforcement of directors' and officers' duties.