The Big idea: Creating Shared Value

Competitividad y valor compartido

La corporation sert-elle bien ses stakeholders?

"Mémoire présenté à la Faculté des études supérieures En vue de l'obtention du grade de Maîtrise en droit Option recherche (LL.M)"

A Comprehensive Analysis of the Legal Issues Relating to Nominee Directors

Dans la foulée des scandales financiers ayant secoué le milieu des affaires ces dernières années, l’efficacité des pratiques de régie d’entreprise, et, en particulier celles liées à l’indépendance des administrateurs, a été passée au crible. L’administrateur désigné par une partie pour la représenter est un type d’administrateur que l’on rencontre fréquemment au sein des conseils d’administration des entreprises. Toutefois, l’on peut se questionner sur l’indépendance réelle de ces administrateurs, considérant leur loyauté envers la personne les ayant désignés, laquelle détient habituellement un intérêt à titre d’actionnaire ou de partie prenante dans l’entreprise visée. En outre, alors que les principes légaux requièrent que les administrateurs agissent dans le meilleur intérêt de l’entreprise, la réalité pratique est parfois toute autre: aux prises avec les instructions ou les souhaits de la personne les ayant nommés, les administrateurs désignés se retrouvent placés en situation inhérente de conflit d’intérêts. Ce texte vise à offrir une analyse détaillée au sujet de l’administrateur désigné et du conflit d’intérêts résultant de cette double exigence de loyauté. L’objectif est de présenter un examen approfondi des diverses difficultés résultant de la nomination d’un administrateur désigné ou associées à celle-ci, ainsi que des réponses judiciaires et législatives liées à cette problématique. Cette réflexion mènera à une exploration de certains systèmes législatifs et légaux, en particulier ceux du Royaume-Uni, de l’Australie et de la Nouvelle-Zélande, afin d’obtenir une meilleure compréhension et d’offrir une perspective éclairée quant aux enjeux analysés par la présente.

“Financial alchemy” or a zero sum game? Real estate finance, securitisation and the UK property market

Following the US model, the UK has seen considerable innovation in the funding, finance and procurement of real estate in the last decade. In the growing CMBS market asset backed securitisations have included $2.25billion secured on the Broadgate office development and issues secured on Canary Wharf and the Trafford Centre regional mall. Major occupiers (retailer Sainsbury’s, retail bank Abbey National) have engaged in innovative sale & leaseback and outsourcing schemes. Strong claims are made concerning the benefits of such schemes – e.g. British Land were reported to have reduced their weighted cost of debt by 150bp as a result of the Broadgate issue. The paper reports preliminary findings from a project funded by the Corporation of London and the RICS Research Foundation examining a number of innovative schemes to identify, within a formal finance framework, sources of added value and hidden costs. The analysis indicates that many of the gains claimed conceal costs – in terms of market value of debt or flexibility of management – while others result from unusual firm or market conditions (for example utilising the UK long lease and the unusual shape of the yield curve). Nonetheless, there are real gains resulting from the innovations, reflecting arbitrage and institutional constraints in the direct (private) real estate market

CSR: the co-evolution of grocery multiples in the UK (2005-2010)

Purpose – The purpose of this paper is to investigate if CSR is balanced between firm and wider society interests. Design/methodology/approach – A qualitative interpretive hermeneutic approach is used to analyse a variety of publically published secondary sources on the CSR of Tesco, Sainsburys, Morrisons and Co-operative in the UK grocery multiple sector (2005-2010). Findings – CSR strategic outcomes currently favour the firm more than society interests. A multilayered framework in the form of Social Responsibility of the Corporation (SRC) is designed and offered in support of balancing the business-society relationship more evenly. Research limitations/implications – This study is limited to firms originating from within the UK grocery multiple sector. Asda could not be included in the study as it does not publish CSR reports annually in the UK after becoming part of Walmart group. Practical implications – A framework for multi-level standardised definition of CSR in the form of SRC is offered. The inclusion of employees and members of the public on CSR/SRC boards is recommended to foster wider collaboration. The SRC framework promotes standardisation at global level while respecting diversity and firm heterogeneity at firm level. The findings may further contribute to GRI; UN Global Compact; WEF dialogues. Social implications – Recommendations are made to extend CSR board diversity for improved dialogue with communities. The SRC framework may be applied at global; national; industry and firm level. The framework can be applied internationally or locally. Future studies may offer quantitative attributes for balancing CSR/SRC. Originality/value – A globally unique and universally applicable framework for evaluating CSR activities is proposed. Future studies may extend the authors' framework to other industries, national environments or globally in the pursuit of balance between firm and society. Furthermore, firms may also adopt the framework to support CSR activities.

The 193 call center, a meaningful public service!

This article is the first part of an on-going ergonomic work analysis with the emergency services call center set up by the Fire Department of the Military Police of Sao Paulo. The final objective of the research is to identify the prescribed task, the real work executed and strategies used by workers to meet the demands of the job. Starting by identifying the tasks and activities developed, this article analyzes the work of the emergency services call center which is of vital importance to the organizational structure, since it is the start point for the process that results in fulfilling the corporation's mission.

The Copper Strike of 1968-1969

In May of 1968, workers at the Kingston mine, a branch of the Calumet Division of Universal Oil Products walked off the site in protest of a safety issue involving a man-car. Knowing their contracts were due for negotiation in just a few months, the workers quickly returned, only to find themselves striking yet again just three months later, when negotiations failed. Requesting pay equal to that of the workers at the nearby White Pine mine was unacceptable to the heads of Universal Oil, the corporation which bought the long running Calumet & Hecla just a year earlier in 1968. The strike would last for nine months, ending in a total shutdown of all mining operations on the Keweenaw Peninsula, and bring an economic hardship to the area that would take decades to recover from. The Copper Strike of 1968-1969 is often forgotten, though extremely important to the story of the copper industry in Michigan, as well as to the United States. This paper has not yet been submitted.

The Other Side of the Doors: Butte & Beyond -- Congressman Pat Williams “In the Crucible of Change”

Pat Williams emerged from the Mining City of Butte, Montana with a sense of grassroots, people-oriented politics. His inherent belief in the power of ordinary citizens carried him through the Montana Legislature and into Congress for a record-setting period. The accomplishments of his long career partially obscured his innate progressive and populist instinct that is reflective of the period of “in the Crucible of Change.” This film addresses Pat’s early years when his progressive instincts and activities resulted in pushback from the giant Anaconda Company which had held Montana hostage for 75 years. Pat is joined for part of the film by former campaign staffer, and now prominent media consultant, Michael Fenenbock for reflections on Pat’s 1978 “Door-to-Door to Congress” campaign, which demonstrated the power of his belief in the people on the other side of the doors. Pat Williams (b. 1937) rose from teaching grade school in his hometown of Butte, MT, to serving for the longest number of consecutive terms (9 terms, 18 years) in the US House of Representatives of anyone in Montana history. Pat was a member of the National Guard and attended UM in Missoula and William Jewel College, graduating from the University of Denver. Pat also served in the Montana legislature for 2 terms (1966 & 1968 elections). In 1969. Pat helped his legislative seat-mate John Melcher get elected as Montana’s Eastern District Congressman in the Special Election that June. Pat went to Washington DC as Melcher’s Executive Assistant. Upon returning to Montana, Pat headed up the Montana offices of the innovative Mountain Plains Family Education Program. In 1974, Pat ran unsuccessfully for Montana’s Western District Congressional seat in a three-way race with former Congressman Arnold Olsen and state Legislator Max Baucus. After the drafting and passage of the 1972 Montana Constitution, Pat was named a member of Montana’s first-ever Reapportionment Commission. In 1978 he successfully ran for Congress, conducting a massive grass-roots door-to-door campaign of 1½ years, reaching 50,000 doors. In a hotly contested 6-way Democratic primary, Pat won going away and also handily won the general election. Pat served in Congress from January, 1979 until January of 1997, 14 years representing the Western District and 4 years representing the entire state. Upon his retirement from Congress, in 1997 Williams returned to Montana where has been an instructor at the University of Montana and Senior Fellow and Regional Policy Associate at the Center for the Rocky Mountain West. He is a former member of the Montana Board of Regents and serves on a number of national education-related boards. In Congress Pat was a Deputy Whip of the U.S. House of Representatives and sat on committees on: Budget, Natural Resources, Education and Labor, and Agriculture. Pat’s leadership helped pass trailblazing legislation to assist hard-working middle-class families and ensure opportunities for every child. Pat’s fingerprints are on many pieces of important legislation, including the College Middle Income Assistance Act, the Family and Medical Leave Act, the Toddlers and Childhood Disability Act, the Library Services and Construction Act, and the Museum Services Act. Pat successfully sponsored the Lee Metcalf Wilderness Area and the Rattlesnake Wilderness area, helped save the Bob Marshall Wilderness from oil and gas exploration, and helped ban geothermal energy drilling near the borders of Yellowstone National Park. As Chairman of The Post-Secondary Education Committee, he protected the National Endowment for the Arts from elimination, a remarkable undertaking during a very trying time for the Agency. Pat worked tirelessly with Tribal College Leaders to build Montana’s seven Tribal Colleges. He was also responsible for the legislation that created The American Conservation Corps, which became the Corporation for National Service, giving thousands of America’s young people a chance to serve their country and pursue higher education. Pat lives in Missoula with his wife Carol Griffith Williams, former Montana Senate Majority Leader. They have three children and five grandchildren.

Cognitive Comparative Advantage and the Organization of Work: Lessons from Herbert Simon's Vision of the Future

In a marvelous but somewhat neglected paper, 'The Corporation: Will It Be Managed by Machines?' Herbert Simon articulated from the perspective of 1960 his vision of what we now call the New Economy the machine-aided system of production and management of the late twentieth century. Simon's analysis sprang from what I term the principle of cognitive comparative advantage: one has to understand the quite different cognitive structures of humans and machines (including computers) in order to explain and predict the tasks to which each will be most suited. Perhaps unlike Simon's better-known predictions about progress in artificial intelligence research, the predictions of this 1960 article hold up remarkably well and continue to offer important insights. In what follows I attempt to tell a coherent story about the evolution of machines and the division of labor between humans and machines. Although inspired by Simon's 1960 paper, I weave many other strands into the tapestry, from classical discussions of the division of labor to present-day evolutionary psychology. The basic conclusion is that, with growth in the extent of the market, we should see humans 'crowded into' tasks that call for the kinds of cognition for which humans have been equipped by biological evolution. These human cognitive abilities range from the exercise of judgment in situations of ambiguity and surprise to more mundane abilities in spatio-temporal perception and locomotion. Conversely, we should see machines 'crowded into' tasks with a well-defined structure. This conclusion is not based (merely) on a claim that machines, including computers, are specialized idiots-savants today because of the limits (whether temporary or permanent) of artificial intelligence; rather, it rests on a claim that, for what are broadly 'economic' reasons, it will continue to make economic sense to create machines that are idiots-savants.

The Future Direction of Delaware Law (Including a Brief Exegesis on Fee Shifting Bylaws)

Delaware sets the governance standards for most public companies. The ability to attract corporations could not be explained solely by the existence of a favorable statutory regime. Delaware was not invariably the first or the only state to implement management friendly provisions. Given the interpretive gaps in the statute and the critical importance of the common law in the governance process, courts played an outsized role in setting legal standards. The management friendly nature of the Delaware courts contributed significantly to the state’s attraction to public corporations. A current example of a management friendly trend in the case law had seen the recent decisions setting out the board’s authority to adopt bylaws under Section 109 of the Delaware General Corporation Law (DGCL), particularly those involving the shifting of fees in litigation against the corporation or its directors. The DGCL allows bylaws that address “the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees.” The broad parameters are, however, subject to limits. Bylaws cannot be inconsistent with the certificate of incorporation or “the law.” Law includes the common law. The Delaware courts have used the limitations imposed by “the law” to severely restrict the reach of shareholder inspired bylaws. The courts have not used the same principles to impose similar restraints on bylaws adopted by the board of directors. This can be seen with respect to bylaws that restrict or even eliminate the right of shareholders to bring actions against management and the corporation. In ATP Tour, Inc. v. Deutscher Tennis Bund the court approved a fee shifting bylaw that had littl relationship to the internal affairs of the corporation. The decision upheld the bylaw as facially valid.The decision ignored a number of obvious legal infirmities. Among other things, the decision did not adequately address the requirement in Section 109(b) that bylaws be consistent with “the law.” The decision obliquely acknowledged that the provisions would “by their nature, deter litigation” but otherwise made no effort to assess the impact of this deterrence on shareholders causes of action. The provision in fact had the practical effect of restricting, if not eliminating, litigation rights granted by the DGCL and the common law. Perhaps most significantly, however, the bylaws significantly limited common law rights of shareholders to bring actions against the corporation and the board. Given the high dismissal rates for these actions, fee shifting bylaws imposed a meaningful risk of liability on plaintiffs. Moreover, because judgments in derivative suits were paid to the corporation, shareholders serving as plaintiffs confronted the risk of liability without any offsetting direct benefit. By preventing suits in this area, the bylaw effectively insulated the behavior of boards from legal challenge. The ATP decision was poorly reasoned and overstepped acceptable boundaries. The management friendly decision threatened the preeminent role of Delaware in the development of corporate law. The decision raised the specter of federal intervention and the potential for meaningful competition from the states. Because the opinion examined the bylaw in the context of non-stock companies, the reasoning may remain applicable only to those entities and never make the leap to for-profit stock corporations. Nonetheless, the analysis reflects a management friendly approach that does not adequately take into account the impact of the provision on the rights of shareholders.

A statement of facts, relative to the late proceedings in Harvard College, Cambridge, published by the students, Boston, April 10, 1807

Written in defense of the students’ actions, this publication sought to clear the students in the eyes of the public. They argued against the stern disciplinary stance of the Corporation, warning that "it is possible to kill the spirt by too rigorous an adherence to the letter of the law." According to the students, the cause of the upheaval was the "black, nauseous and intolerable" food served in Commons. Although they admitted that there were some students who "delight in mischief, anarchy, and confusion," they argued against the whole student body being charged for the crimes. Instead, they held that their offense, "retiring peaceably from the hall," should be punished, as usual, only by the "small fine of fifty or one hundred cents."

E. Committee to frame rules, directions, and statutes of the Boylston Professorship of Rhetoric and Oratory, 1804

This subseries consists of a paper notebook containing a handwritten draft of the report presented to the Harvard Corporation on April 30, 1804 by the Committee to frame Rules, Directions, and Statutes of the Boylston Professorship of Rhetoric and Oratory. The handwritten report provides a numbered list of rules related to the Boylston Professorship and is dated April 16, 1804. The report is followed by a certification signed May 1, 1804 from President Joseph Willard that he was unable to attend the meeting of the Corporation to discuss the professorship.

The Report of the Committee appointed to Consid'n of the Memorial of the Overseers of Harvard College, 1722 June 29

Two folio-sized leaves containing a handwritten copy of a June 29, 1722 report created by a Committee of the General Court responding to the June 13, 1722 memorial of the Board of Overseers. The report lists three points declaring that the Charter of 1650 intended the Tutors to be members of the Corporation "provided they exceed not five in number," that none of the Fellows be Overseers, and that the Charter of 1650 did not grant the Corporation the power to set salaries without the consent of the Overseers. The copy notes that the report was read and accepted on June 29, and signed by Governor Samuel Shute on July 2, 1722, with the stipulation that none of the current non-resident Fellows be removed from the Corporation.

Petition of Sever and Welsteed to the General Court (manuscript copy), [1723 June-August]

Two folio-sized leaves containing a two-page handwritten copy of the June 21, 1723 petition of Sever and Welsteed requesting the question of non-resident Fellows in the Corporation be readdressed by the General Court, and a one-page handwritten copy of the answer to the petition passed by the General Court on August 7, 1723. The text of the petition begins "Sheweth that we have formerly represented to the Overseers of the College the Difficulty we were under in the business of it by reason of our not being vested with the power of its Charter..." The petition is incorrectly dated as "June 24th 1722" instead of 1723.

The Lawes and Orders of Harvard Colledge, 1655-1708

The 21-page handwritten copy of the College laws is laid out in two columns, and lacks a cover. In the left-hand column, in an unidentified hand, are the Laws of 1655 in English with additions dated April 9, 1660, August 24, 1663, and December 5, 1667, and an order of the General Court dated Sept. 4, 1656. In the right-hand column, in the hand of President John Leverett, are the Latin Laws of 1642-1646, with an occasional reference to the Latin Laws of 1686 and 1692, and two extracts from the Corporation records about the reading of the Scriptures dated January 26 and May 27, 1708.