The Government Shareholder as a Fiduciary: Implications for ESG Management
The 18th Asian Institute of International Financial Law
Distinguished Public Lecture
The Government Shareholder as a Fiduciary:
Implications for ESG Management
21 April 2023
State-owned enterprises (SOEs) are among the most important type of companies in many jurisdictions in Asia and beyond. But SOEs raise a unique governance issue: there is the risk that the government will exercise its powers as a controlling shareholder of the SOEs to advance its partisan ends rather than to promote public benefit. After all, there have been extractions of private benefits of control by the state controller in SOEs to the detriment of the company and the public. But the government (particularly where it uses public funds to invest) has to act in the public interest; it is ultimately accountable to its citizens. There is significant literature showing that the state’s relationship with its subjects is akin to the private law fiduciary relationship where there is discretionary power, information asymmetry, dependence and vulnerability. Drawing on this literature and the case law, Professor Lim argues that the government should be subjected to fiduciary duties where it is a controlling shareholder as in the case of SOEs (or where it is a minority investor in non-SOEs). He then explores the implications of government shareholder fiduciary duties for environmental, social and governance (ESG) management. He also examines the relationship between the fiduciary duties of the state controller and directors. Finally, he addresses potential objections and suggests how the government’s fiduciary duties can be enforced.
Speaker:
Professor Ernest Lim is Vice Dean and Professor at the Faculty of Law, National University of Singapore (NUS). He obtained his DPhil and BCL from Oxford, LLM from Harvard and LLB from NUS. An internationally recognised scholar in comparative corporate law and governance, he is the sole-author of three acclaimed monographs with Cambridge University Press: A Case for Shareholders’ Fiduciary Duties in Common Law Asia (2019), which won the Society of Legal Scholars Peter Birks Runner-Up Prize for Outstanding Legal Scholarship; Sustainability and Corporate Mechanisms in Asia (2020), and Social Enterprises in Asia: A New Legal Form (2023). He used to teach at the University of Hong Kong. Prior to joining academia, he was a capital markets attorney in the New York and Hong Kong offices of Davis Polk where he advised financial institutions, startups and companies on corporate and securities law.
Commentator:
Dr Anthony Neoh, QC, SC, JP, Chairman, Asian Academy of International Law
Chair:
Dr Emily Lee, Director, Asian Institute of International Financial Law, Faculty of Law, HKU
1 CPD point has been approved by The Law Society of Hong Kong. Admission is free to all attendees who do not require CPD point(s). A fee of HK$250 per person is charged if attendees require CPD point(s). The fee is non-refundable.
Enquiries: Flora Leung at aiiflhku@hku.hk