Welcome!

To all those reading this I am David Gibbs; I am a Lecturer in Company and Commercial Law at the University of Hertfordshire.

I created this blog as a general out-let of ideas for my research, as well as keeping those interested up-to-date on my research and general interests.

I completed my PhD thesis at the University of East Anglia in 2014. The thesis was recommended for the award of PhD with no corrections. My external examiner was Prof. Simon Deakin (Cambridge) and internal examiner was Prof. Morten Hviid.
My PhD research centred on directors' duties and company law. The thesis was titled 'Non-Executive Self-Interest: Fiduciary Duties and Corporate Governance'. It was a doctrinal and empirical study on whether self-interest was suitably controlled amongst non-executive directors.

My supervisors were Prof. Mathias Siems, Prof. Duncan Sheehan, Dr. Sara Connolly and Dr. Rob Heywood

All opinions of any existing or future blogpost are my own. They do not necessarily represent the views of any of my associated institutions.


Monday, 26 January 2015

Forthcoming Publication

In the coming months I will have a publication released on the director's duty to avoid a conflict of interest. It is titled 'The absolute limit of directors' fiduciary liability for conflicts of interest: The director's perspective'. I shall provide the citation when I have one.

The abstract is below and the analysis incorporates new authorities on the issue from the last 6 years including: FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45; Halcyon House v Baines [2014] EWHC 2216; The Northampton Regional Livestock Centre Company Ltd v Cowling [2014] EWHC 30 (QB); Ross River Ltd v Waveley Commercial Ltd [2013] EWCA Civ 910; Ranson v Customer Systems [2012] EWCA Civ 841; Rossetti Marketing Ltd v Diamond Sofa Company Ltd [2012] EWCA Civ 1021; Cambridge v Makin [2011] EWHC 12 (QB); JD Wetherspoons plc v Van de Berg & Co Ltd [2009] EWHC 639; and Re Allied Business [2009] EWCA 751.

Abstract

The absolute limits of fiduciary loyalty are misunderstood in the context of directors as analyses focus on the interests of the principal alone. This article will demonstrate that such an approach is inconsistent with traditional fiduciary analysis and that it is the specific undertaking to the principal’s interests that determine the limits of loyalty in a fiduciary relationship.






Thursday, 22 January 2015

LCCGE Birkbeck seminar series presentation

Next month on February 6th I will be presenting my research at Birkbeck, University of London's Centre for Corporate Governance and Ethics (LCCGE) as part of their monthly seminar series. The full seminar series list can be found here. The seminar is taking place on February 6th 2015 from 18:00-19:30 followed by a reception. It is open to the public so all are welcome to attend.

The presentation will focus on my PhD and ongoing research. It is titled 'Self-interest amongst non-executive directors: Fiduciary and governance controls'.

Wednesday, 19 November 2014

SSAHRI Research Conference

As part of my research grant I have been asked to produce a poster about my research. I will be presenting it next Wednesday at Hertfordshire College Lane for anyone in the vicinity. I focused on the variable of remuneration from the study given the limited room to try and explain every variable and point from the study in a single poster.


Tuesday, 30 September 2014

Research Development Conference

Last Friday I went to and presented at the University of Hertfordshire's Research Development Conference. I gave a presentation on 'My three tips on using social media in research'. For those interested my presentation can be found here and my notes can be found here.

My three tips were to: 1) have a strategy; 2) have an audience/niche; and 3) have rules. These three tips are mainly aimed at allowing someone new to social media to use it to enhance their research by reaching a wider audience but they are by no means the definitive way to use social media as a researcher.

Tuesday, 23 September 2014

WINIR Symposium: Accepted Papers List Published

The World International Network for Institutional Researchers (WINIR) has published its list of accepted papers to its website. For my paper that I will be presenting on non-executive directors, the abstract can be found here. There is also a preliminary programme for the three day event. There will be between 80-100 papers presented as well as keynote speakers from Simon Deakin (Cambridge); Colin Mayer (Oxford); Ugo Pagano (Siena); and Philip Pettit (Princeton). 

Friday, 19 September 2014

I'm on Linkedin!

As well as being able to follow me on Twitter (@Gibbs_Law) you can now be a connection too on my Linkedin profile. To connect to my profile follow the link here

Wednesday, 10 September 2014

The Apple Watch and the Director's Fiduciary Duty of Loyalty



Some of you may wonder what the unveiling of the Apple Watch and the fiduciary duty of directors have in common. Well, it goes to the heart of the problem of many analyses that seek to identify the scope of a director's fiduciary duty of loyalty to its company. Academic commentators and the judiciary alike often attempt to define loyalty on the basis of the interests of the company. Two decisions in the Court of Appeal and High Court have done exactly that in recent years with differing degrees of effect. In Re Allied Business & Financial Consultants Ltd [2009] EWCA Civ 751 Rimer LJ held the director has an unlimited fiduciary capacity because the duty is not circumscribed by the company's constitution. Equally, in JD Wetherspoons plc v Van de Berg & Co Ltd [2009] EWHC 639, the judge held that there would be no breach of duty where a director of a company employed by JD Wetherspoons to find suitable land to build public houses diverted opportunities to purchase land to another company since the company diverted to was not competing. Both approaches are inconsistent with fiduciary law. The Apple watch demonstrates the problem with such analyses. How do we know if companies are 'competing'? What does 'competing' even mean? A wide approach says all companies are competing. But this is not to the point. The law has always been clear in respect of fiduciary jurisdiction that it is not the company's interests that circumscribe the duty but it is those interests the fiduciary takes responsibility for that does. Following the approach taken in JD Wetherspoons, there would be the danger of allowing a director to advance the argument that Apple does not make watches, therefore any opportunity to do so may be legitimately diverted away from Apple to another company. The opposite problem happens from the reasoning in Re Allied Business. The director may have limited responsibility within a company yet is required to suspend self-interest where opportunities present themselves that are of interest to the company, yet they never took responsibility for them. Anyone arguing that the court could look at company documents to see what the company is doing with the creation of wearable technology is missing the point but also that it will be met with resistance because information of that nature is quite clearly sensitive.

It is a relief that in JD Wetherspoons the director eventually passed the lease hold on to Barracuda who could be said to be competing with JD Wetherspoons. Also, in Re Allied Business the opportunity fell within the scope of those interests the director undertook responsibility for. Thus, the conclusions were right in the end but for the wrong reasons.