Corporate governance and the financial crisis: the new paradigm of the rule of law after the collapse
| Autor | Dawid Bunikowski |
| Ocupação do Autor | University of Eastern Finland, Department of Law |
| Páginas | 2078-2097 |
2078 • XXVI World Congress of Philosophy of Law and Social Philosophy
Postdoc.Dr. Dawid Bunikowski1
The aim of this paper is to explain what corporate governance
is, what the principles of corporate governance are, what standards are
formally valid at a global level (including both American and Europe-
an rules) and how deviant practice appeared both prior to and during
thenancialcrisiswhichbeganinItalsoaimstoexplainthedif-
ference between the institutional axiology wrien codesus edwithin
companies, the state law) and the real axiology (deviance on the part of
companies, breaking promises) in companies. My approach is based on
Jonathan Macey’s promissory theory of corporate governance and Cor-
nelis de Groot’s legal analysis of corporate governance, and this paper
takesastanceagainst hypocrisyinmaersof businessandofthestate
Axiological analysis of the crisis in the global economy is necessary,
since corporate governance, as an element of company law, constitutes
an important branch of the law and of both legal and business practice.
In conceptual terms, it has a close relationship with business ethics. I
maintain that the crisis in corporate governance and business ethics was
oneofthemainfactorsbehindthenancialcrisisandthatthenancial
crisis brought about changes in the classical rule of law paradigm. States
are now willing to take all available extraordinary measures to curb vio-
lations of law by companies, to safeguard good corporate governance
and to protect human freedom and rights.
Corporate governance has been the subject of many studies. The
literature in the eld is very rich wide and sophisticated presenting
historical, social, legal, economic, cultural and international contexts of
corporate governance2However to putitbriey in my opinion cor-
1
University of Eastern Finland, Department of Law.
2
In recent years, during the global nancial crisis, many books were published on the
Working Group: Law and State • 2079
porate governance relates to well-organised companies which maintain
strict rules governing the way in which they function and a clear divi-
sion of the competencies and responsibilities of the corporate organs,
also including clear and rigorous supervisory procedures. Corporate
governance can also be viewed as a set of values, principles and rules
of behaviour for each company. On the one hand, corporate governance
seemstocomprisewrienandunwrienrulesandprincipleslaiddown
inocialdocumentssuch asstatutesresolutionslegalinternalactsor
codesofgoodpracticesietheocialspherebusinesslawtheinstitu-
tional axiology of corporate governance). On the other hand, it also com-
prises behavioural practices which apply in an unwrien sphere ie
the practical sphere; business in action; the real (concrete) axiology of
corporate governance). It also impacts on business ethics. Many of these
values or principles, such as transparency, honesty or objectivity, have
a moral or ethical character. Of course, we can refer the two theories of
axiologyto the specic givencompaniesand to the concrete axiology of
subject of corporate governance and ‘corporate social responsibility’ (treated as a part
of corporate governance, of course). See especially: B. Tricker, Corporate Governance.
Principles, Policies, and Practices, Oxford 2009; Corporate Governance Around the
World, ed. by A. Naciri, London-New York 2008; European Corporate Governance.
Readings and perspectives, ed. by T. Clarke, J. F. Chanlat, London 2009; Corporate Gov-
ernance and Compliance. Eine Fallstudie mit Glossar, M. Roth (Hrsg.), Zurich-St. Gal-
len 2009; A. J. G. Sison, Corporate Governance and Ethics. An Aristotelian Perspective,
Cheltenham, UK; Northampton USA 2008; Global Corporate Governance, ed. by D.
H. Chew, S. L. Gillan, New York 2009; Corporate Social Responsibility and Regulatory
Governance. Towards Inclusive Development?, ed. by P. Utting, J. C. Marques, New York
2010; A History of Corporate Governance around the World. Family Business Group
to Professional Managers, ed. by R. K. Morck, Chicago-London 2005; S. Hakelmacher,
Corporate Governance oder Die Korpulente Gouvernante, Koeln 2005; Handbook of
International Corporate Governance. Country Analyses, ed. by Ch. A. Mallin, Chelten-
ham-Northampton 2006; e Modern Firm, Corporate Governance and Investment, ed.
by P. O. Bjuggren, D. C. Mueller, Cheltenham-Northampton 2009; S. Soederberg, Cor-
porate Power and Ownership in Contemporary Capitalism. e politics of resistance
and domination, London-New York 2010; A. Tylecote, F. Visintin, Corporate Gover-
nance, Finance and the Technological Advantage of Nations, London-New York 2008; S.
Anand, Essentials of Corporate Governance, New Jersey 2008; T. Clarke, International
Corporate Governance. A Comparative Approach, London-New York 2007; Corporate
Governance and Corporate Finance. A European perspective, R. A. I. van Frederikslust,
J. S. Ang, P. S. Sudarsanam, London-New York 2008; Global Corporate Power, ed. by Ch.
May, London, Boulder 2006; A. Dignam, M. Galanis, e Globalization of Corporate
Governance, Farnham, UK-Burlington, USA 2009.
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