Interest of The Company - Modern Developments

Modern Developments

The rule is generally seen to be particularly harsh towards both third parties and against directors, who are regarded as being in breach of their duty only by acting with what others might regard as common human decency. Where the company's property could not be recovered from the third party, the directors would be personally liable to recompense the company.

There were also concerns that running companies ruthless for the financial benefit of the shareholders had a countervailing cost, making directors unwilling to participate in programmes that were beneficial to the community generally, or to the environment. It also meant that companies became much less willing to make donations to political parties, which may have had more impetus in bringing about legislative change than concern for communities or the environment.

Some legal systems have now abrogated by statute the rule that as against third parties the transaction may be void if it has insufficient commercial benefit to the company.

In some countries, statutes now expressly provide for the directors to consider interests other than the pure financial interests of the shareholders.

However, in some jurisdictions there are proposals to make the power to act otherwise than for the financial benefit of the company even wider. For example, in the United Kingdom, the Companies Act 2006, requires that directors have to consider the impact of their actions on a much wider range of stakeholders. The Act requires a director "to promote the success of the company for the benefit of its members as a whole", but sets out six factors to which a director must have regards in fulfilling the duty to promote success. These are:

• the likely consequences of any decision in the long term
• the interests of the company's employees
• the need to foster the company's business relationships with suppliers, customers and others
• the impact of the company’s operations on the community and the environment
• the desirability of the company maintaining a reputation for high standards of business conduct, and
• the need to act fairly as between members of a company

The proposed new duties have been subject to some criticism, both from those who argue that the new duties do not have sufficient bite, and also from those who fear that it diverts directors' focus from what it is that they are meant to be doing (viz., generating profits), and there are fears of widespread litigation, and increase in director's insurance premiums. However, because the new duties are expressed in non-imperative terms, and there is no sanction, the likelihood is that although they will empower the board of directors to take decisions that do not appear to directly financially benefit the company, they are unlikely to ever be required to do so.