Stakeholder Impartiality: A New Classic Approach for the Objectives of the Corporation

The stockholder/stakeholder dilemma has occupied corporate leaders and corporate lawyers for over a century.  Most recently, the Business Roundtable, in a complete turnaround of its prior position, stated that “the paramount duty of management and of boards of directors is to the corporation’s stockholders.”  The signatories of this statement failed, however, to specify how they would carry out these newly stated ideals.  Directors of large U.K. companies don’t enjoy this luxury anymore.  Under the Companies Act 2006, directors are required to have regard to the interests of the company’s employees, business partners, the community, and the environment, when they endeavor to promote the success of the company for the benefit of its members (shareholders).  Government regulations promulgated in 2018 require large companies to include in their strategic reports a new statement on how the directors have considered stakeholders’ interest in discharging this duty.  However, when the Supreme Court of Canada discussed this issue in 2008, it explicitly eschewed giving it an answer.  Lawyers are similarly at sea with regard to a multiple-stakeholder-objective provision in India’s Companies Act, 2013.

This paper advances a new, yet classical, approach for the task of considering the interests of various stakeholders by directors and other corporate fiduciaries.  I argue that for lawfully accomplishing this task, while also complying with their standard duties of loyalty and care, directors should exercise their discretion impartially.  Respectively, judicial review of directors’ conduct in terms of treating different stakeholders should implement the concomitant doctrine of impartiality.  This approach is new, as it has not yet been implemented in this context.  At the same time, this approach is also classical, even orthodox.  The duty of impartiality (or even-handedness, or fairness; courts use these terms interchangeably) has evolved in traditional trust law mostly during the nineteenth century.  In recent years, it has been applied in trust cases in several common law jurisdictions, including in complex settings of pension funds, where fund trustees face inescapable conflicts between subgroups of savers.  These conflicts resemble the tensions between different stakeholders in business corporations - a feature that renders this doctrine a suitable source of inspiration for the task at hand.

In a nutshell, the duty of impartiality accepts that there could be irreconcilable tensions and conflicts among several trust beneficiaries who in all other respects stand on equal footing vis-à-vis the trustee.  Applying the rule against duty-duty conflict (dual fiduciary) in this setting would be ineffective, as it would disable the trustee - and consequently, the trust - without providing a solution to the conundrum.  The duty of impartiality calls on the trustee to consider the different interests of the beneficiaries impartially, even-handedly, fairly, etc.; it does not impose any heavier burden on the good-faith exercise of the trustee’s discretion.  Crucially, the duty of impartiality does not imply equality.  All that it requires is that the different interests be considered within very broad margins. 

This paper thus proposes an analogous process-oriented impartiality duty for directors - to consider the interests of relevant stakeholders.  Stakeholder impartiality, too, is a lean duty whose main advantage lies in its being workable.  It is particularly suitable for legal systems that hold a pluralistic stance on the objectives of the corporation, such as Canada’s and India’s open-ended stakeholderist approaches.  Such a doctrinal framework might also prove useful for systems and individuals that endorse a monistic, shareholder-focused approach.  That could be the case in the United Kingdom and Australia, for instance, where directors could face liability if they did not consider creditors’ interest in a timely fashion even before the company reaches insolvency.  Moreover, this approach could be helpful where the most extreme versions of doctrinal shareholderism arguably rein, such as Delaware law, with regard to tensions between common and preferred stockholders.