Models for reform : the directors’ duty of care in a modern commercial world

The Australian responses to corporate collapses in the modern commercial world have been
implemented at both judicial and legislative levels over a period of decades. South Africa has lagged behind the reform process, only recently reviewing its company laws with a view to legislatively incorporating, inter alia, its directors’ duties. The consequence of such review of the duty of care is found in subsection 76(3)(c) of the Companies Act 71 of 2008. This article critically evaluates the existing South African common law and the new legislative directors’ duty of care in light of the equivalent duties in Australia and the United States. The analysis ultimately aims at determining whether the approach taken in any of these jurisdictions provides useful guidance in regard to reform options for the duty of care. While the Companies Act contains features that are preferable to the Australian Corporations Act 2001, the impact of the Companies Act on crucial features, such as the objectivity of the duty of care, is unclear and will have to await judicial review. It is concluded that while the South African measures at times echo Australian law in a positive manner, the Australian legislative regime is not without legitimate criticism as it can be unnecessarily complicated. Ultimately it is the United States and Australian common law duty of care that provides the best model for legislative reform.

A comparative analysis of directors' duty of care, skill and diligence in South Africa and in Australia

The South African and Australian law regarding directors' duty of care, ski ll and diligence were influenced considerably by English precedent of the late 1800s and early 19005. Originally both jurisdictions adopted a conservative approach towards directors' duty of care, skill and diligence. This resulted in very low standards of care, skill and diligence expected of directors. In Australia, the standards of care and diligence expected of directors changed drastically with the case of Daniels v Anderson, where objective standards were used to determine a breach of directors' duty of care and diligence, and when objective standards of care and diligence were introduced in Australian corporations legislation. In this article it is submitted that if the opportunity arose for a South African court to consider whether a director is in breach of his or her common law duty of care, skill and diligence, the form of fault that will be required will be negligence as judged against the standards of a reasonable person. This means that in actual fact objective standards of care and diligence are expected of directors in South Africa. Although section 76(3) of the South African Companies Act 71 of 2008 does not introduce purely objective standards of care, skill and diligence, the section is defended in this article. It is pointed out that encouraging emerging entrepreneurs to become directors of South African companies provides justification for keeping subjective elements as part of the test to determine whether a director was in breach of his or her statutory duty of care, skill and diligence.

The professionalisation of stress management : health and wellbeing as a professional duty of care?

Workplace stress associated with ongoing processes of organizational change is a major occupational and public health concern. It is also a costly economic issue—both public and private. In this paper a framework will be used that draws on Michel Foucault’s genealogies of the Self to suggest that the management of stress by professionals—in a workplace environment increasingly characterized by the practices of risk management—emerges as a key element of the choices and responsibilities that frame what it means to be professional. To be (a) professional means to be a person capable of making choices and accepting responsibilities that are framed by a duty of care to manage one’s health and well-being to maximize organizational performance and effectiveness. The article will examine the ways in which transformations in the organization and practice of teachers’ work have witnessed large numbers of teachers being seen, and seeing themselves, as stressed. These understandings of teacher stress have provoked a number of strategies designed to encourage individuals to take care of themselves—and to take care of themselves in ways that will make schools more effective. The authors are concerned with understanding the processes that are at work which make it possible to imagine that it is a professional duty of care to manage one’s life in such a way as to be both balanced and effective in contexts of uncertainty and risk.

A content analysis of sponsor representation across professional sport websites : extension of attribute typology

The sport industry has identified the importance of using the internet as a tool that can benefit the organisation. Much like the purpose of entering into sponsorship of sporting events, corporate partners are also attracted to the opportunities that professional sport team websites offer to fulfil similar objectives. The major purpose of this research is to explore the various ways in which sponsor logos are represented across professional sport websites and to extend previous advertising research, specifically the work developing advertising attribute typologies. The subjects for this research are professional sport websites and a qualitative approach is adopted with a content analysis as the main method of analysis used. To ensure reliability and validity within the coding instruments used, percentage agreement and Cohen’s kappa were adopted as indexes to verify this. The findings show sponsors’ logos exist on most professional sport websites and are represented in a variety of ways. Furthermore, a typology for sponsor representation and location across sport websites has been established to present a reliable foundation for future research in the area of consumer attitudes, behaviour and response towards sponsors and their presence on sport websites.

The novel as social satire: 60 years later, the wind done gone and the limitations of fair use

The absence of the doctrine of fair use from Australian copyright law has been a bone of contention in Australia after the Australia-United States Free Trade Agreement (FTA). As the Australian government reformed the Copyright Act 1968 (Cth) in the aftermath of the FTA it eschewed the option of adopting fair use. Instead, Australia chose to incorporate a version of fair use into its existing fair dealing framework. Accordingly, the Copyright Amendment Act 2006 (Cth) inserted ss 41A and 103AA into the Copyright Act. These provisions provide that a fair dealing with a copyright protected work does not constitute an infringement if it is done for the purposes of parody or satire. These provisions codify part of the ratio of the United States Supreme Court in the seminal case of Campbell v Acuff Rose Music. However, the parameters of these new provisions are unexplored and the sparse nature of fair dealing jurisprudence means that the true meaning of the provisions is unclear. Moreover, two cases from the United States, SunTrust Bank v Houghton Mifflin and Salinger v Colting, underline just how important it is to have legal rules that protect literary ‘re-writes’. Both cases involved authors using an original novel to ‘write back’ to the original author and the broader culture. ‘Writing back’ or the ‘re-write’ has a firm basis in literature. It adds something invaluable to our culture. The key question is whether our legal landscape can allow it to flourish. This paper examines the interaction between fair use and literary re-writes.

Extensions to knowledge acquisition and effect of multimodal representation in unsupervised learning

The phenomenal behaviour and composition of human cognition is yet to be defined comprehensibly. Developing the same, artificially, is a foremost research area in artificial intelligence and related fields. In this chapter we look at advances made in the unsupervised learning paradigm (self organising methods) and its potential in realising artificial cognitive machines. The first section delineates intricacies of the process of learning in humans with an articulate discussion of the function of thought and the function of memory. The self organising method and the biological rationalisations that led to its development are explored in the second section. The next focus is the effect of structure restrictions on unsupervised learning and the enhancements resulting from a structure adapting learning algorithm. Generation of a hierarchy of knowledge using this algorithm will also be discussed. Section four looks at new means of knowledge acquisition through this adaptive unsupervised learning algorithm while the fifth examines the contribution of multimodal representation of inputs to unsupervised learning. The chapter concludes with a summary of the extensions outlined.

Migration exhibitions and the question of identity: reflections on the history of the representation of migration in Australian museums, 1986-2011

Museums and Migration explores the ways in which museum spaces - local, regional, national - have engaged with the history of migration, including internal migration, emigration and immigration.

Assessment of habitat representation across a network of marine protected areas with implications for the spatial design of monitoring

Networks of marine protected areas (MPAs) are being adopted globally to protect ecosystems and supplement fisheries management. The state of California recently implemented a coast-wide network of MPAs, a statewide seafloor mapping program, and ecological characterizations of species and ecosystems targeted for protection by the network. The main goals of this study were to use these data to evaluate how well seafloor features, as proxies for habitats, are represented and replicated across an MPA network and how well ecological surveys representatively sampled fish habitats inside MPAs and adjacent reference sites. Seafloor data were classified into broad substrate categories (rock and sediment) and finer scale geomorphic classifications standard to marine classification schemes using surface analyses (slope, ruggedness, etc.) done on the digital elevation model derived from multibeam bathymetry data. These classifications were then used to evaluate the representation and replication of seafloor structure within the MPAs and across the ecological surveys. Both the broad substrate categories and the finer scale geomorphic features were proportionately represented for many of the classes with deviations of 1-6% and 0-7%, respectively. Within MPAs, however, representation of seafloor features differed markedly from original estimates, with differences ranging up to 28%. Seafloor structure in the biological monitoring design had mismatches between sampling in the MPAs and their corresponding reference sites and some seafloor structure classes were missed entirely. The geomorphic variables derived from multibeam bathymetry data for these analyses are known determinants of the distribution and abundance of marine species and for coastal marine biodiversity. Thus, analyses like those performed in this study can be a valuable initial method of evaluating and predicting the conservation value of MPAs across a regional network.

Differences in the perception of interest representation: a comparision of Brasília and Brussels lobbying activity

The research topic of this paper is focused on the analysis of how trade associations perceive lobbying in Brussels and in Brasília. The analysis will be centered on business associations located in Brasília and Brussels as the two core centers of decision-making and as an attraction for the lobbying practice. The underlying principles behind the comparison between Brussels and Brasilia are two. Firstof all because the European Union and Brazil have maintained diplomatic relations since 1960. Through these relations they have built up close historical, cultural, economic and political ties. Their bilateral political relations culminated in 2007 with the establishment of a Strategic Partnership (EEAS website,n.d.). Over the years, Brazil has become a key interlocutor for the EU and it is the most important market for the EU in Latin America (European Commission, 2007). Taking into account the relations between EU and Brazil, this research could contribute to the reciprocal knowledge about the perception of lobby in the respective systems and the importance of the non-market strategy when conducting business. Second both EU and Brazilian systems have a multi-level governance structure: 28 Member States in the EU and 26 Member States in Brazil; in both systems there are three main institutions targeted by lobbying practice. The objective is to compare how differences in the institutional environments affect the perception and practice of lobbying, where institutions are defined as ‘‘regulative, normative, and cognitive structures and activities that provide stability and meaning to social behavior’’ (Peng et al., 2009). Brussels, the self-proclaimed "Capital of Europe”, is the headquarters of the European Union and has one of the highest concentrations of political power in the world. Four of the seven Institutions of the European Union are based in Brussels: the European Parliament, the European Council, the Council and the European Commission (EU website, n.d.). As the power of the EU institutions has grown, Brussels has become a magnet for lobbyists, with the latest estimates ranging from between 15,000 and 30,000 professionals representing companies, industry sectors, farmers, civil society groups, unions etc. (Burson Marsteller, 2013). Brasília is the capital of Brazil and the seat of government of the Federal District and the three branches of the federal government of Brazilian legislative, executive and judiciary. The 4 city also hosts 124 foreign embassies. The presence of the formal representations of companies and trade associations in Brasília is very limited, but the governmental interests remain there and the professionals dealing with government affairs commute there. In the European Union, Brussels has established a Transparency Register that allows the interactions between the European institutions and citizen’s associations, NGOs, businesses, trade and professional organizations, trade unions and think tanks. The register provides citizens with a direct and single access to information about who is engaged in This process is important for the quality of democracy, and for its capacity to deliver adequate policies, matching activities aimed at influencing the EU decision-making process, which interests are being pursued and what level of resources are invested in these activities (Celgene, n.d). It offers a single code of conduct, binding all organizations and self-employed individuals who accept to “play by the rules” in full respect of ethical principles (EC website, n.d). A complaints and sanctions mechanism ensures the enforcement of the rules and addresses suspected breaches of the code. In Brazil, there is no specific legislation regulating lobbying. The National Congress is currently discussing dozens of bills that address regulation of lobbying and the action of interest groups (De Aragão, 2012), but none of them has been enacted for the moment. This work will focus on class lobbying (Oliveira, 2004), which refers to the performance of the federation of national labour or industrial unions, like CNI (National Industry Confederation) in Brazil and the European Banking Federation (EBF) in Brussels. Their performance aims to influence the Executive and Legislative branches in order to defend the interests of their affiliates. When representing unions and federations, class entities cover a wide range of different and, more often than not, conflicting interests. That is why they are limited to defending the consensual and majority interest of their affiliates (Oliveira, 2004). The basic assumption of this work is that institutions matter (Peng et al, 2009) and that the trade associations and their affiliates, when doing business, have to take into account the institutional and regulatory framework where they do business.

Challenges of Knowledge Representation in Contemporary Archival Science

Since its emergence as a discipline, in the nineteenth century (1889), the theory and practice of Archival Science have focused on the arrangement and description of archival materials as complementary and inseparable nuclear processes that aim to classify, to order, to describe and to give access to records. These processes have their specific goals sharing one in common: the representation of archival knowledge. In the late 1980 a paradigm shift was announced in Archival Science, especially after the appearance of the new forms of document production and information technologies. The discipline was then invited to rethink its theoretical and methodological bases founded in the nineteenth century so it could handle the contemporary archival knowledge production, organization and representation. In this sense, the present paper aims to discuss, under a theoretical perspective, the archival representation, more specifically the archival description facing these changes and proposals, in order to illustrate the challenges faced by Contemporary Archival Science in a new context of production, organization and representation of archival knowledge.