No David, we are not!
I am nearing the date of my transfer from Mphil to PhD and perhaps this is a good time to reflect on what has been done and look forward to what needs to be done.
It takes no
Mathematician to figure out 20,000 words of potentially 100,000 is no where near half way to completion of the thesis despite being 16 and half months in to it. I expect once in my transfer and after I will be made aware of how much needs to be done in a short period of time.
But it is not all such a gloomy outlook; one could easily draw on a clichéd comparison with the recession to describe mine or possibly anybody’s thesis at this stage. So, what have I achieved so far and what is there in the pipes?
My articles on derivative claims now both available on Westlaw, see here for blog on
part 1. They really offered some positives in my first year which was demanding and a relief from lots of reading and seminar preparation with teaching. The articles were in total around 10,000 words in length and will form some part of my thesis. They will however be adapted to make it applicable to the central topics of directors' duty of loyalty and multiple directorships. The articles themselves provide more of an analysis of some of the objectives of the derivative claim.
I have just completed a chapter analysing conflicts of interest for directors as well. This chapter focused on how we understand a conflict rather than a detailed analysis of what an "interest" is. This will form some part of the following chapter to this one.
The chapter looked at some of the key functions of the duty of loyalty from Conaglen's protective function of non-fiduciary duties to Fischel and Easterbrook's theory on the purpose of avoiding high contractual costs.
These theories, amongst others, were applied an analysed against some of the key elements of the duty of loyalty: The no-profit and no-conflict rules; scope of business test; ex-directors; and corporate opportunities. In the context of directors it appeared to be that Conaglen's protective function served best as a last resort rather than any driver behind directors aligning their interests with those of the company.
However, they were still true and applying them to ex-directors it was discovered that there has been various erroneous decisions relating to ex-directors where the courts have attempted to apply a somewhat varied corporate opportunities doctrine. This part of the chapter, as well as applying some of the key theories, looked at Sealy and Worthington's and Lowry and Edmund's views on corporate opportunities of ex-directors and suggests that these approaches are too wide and overlook the purpose of the duty of loyalty.
So what is in the pipe line?
The next port of call is the theory chapter itself. What are the key theories to look at. I do not intend to list them here but the focus will be on those relating to agency theory and how they apply to the duty of loyalty. On a deeper level there will also be focus on methods and theories applying to how parties to the fiduciary relationship interests are aligned. Analysis seems to be available across different schools from Law; business; economics; psychology etc.
Board structures also need to be analysed to coincide with the discussion multiple directorships and there is plenty of information out there although perhaps not as much on non-executive directors who I believe will form a significant amount of the discussion. See blog
here for why.
I have also collected some sample data on multiple directorships and board remuneration. I aim to wait until the next financial year to collect all the data as firms are more likely to meet higher transparency requirements in line with recommendations from the market (source lost at time of writing).
I have also begun collecting sample data on case levels of directors' duties. There were numerous claims pre and post 2006 about duties and their transparency, clarity, effectiveness. This data can aid on two fronts throughout the thesis, first on the duty of loyalty: I hypothesise that this is the most frequent breach of duty which may suggest increased pay is not helping to align interests. This may be especially so if the data in fact shows an increase in duty breaches. One would have to consider the issues of enforcement as well. Duties are not frequently enforced but a correlation can possibly be drawn between remuneration levels and level of breaches of duty.
So to reiterate the title's answer, no I am not at the completion of my thesis, nor am I close. But there is plenty to look forward to with possibly a little less reading and most likely a lot more writing to come in the next 19 months.
