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Papers by Jean Jacques du Plessis

Keeping good companies, Oct 1, 2005

Deakin Law Review, Aug 1, 2014

SSRN Electronic Journal, 2018

This article is a book review of "Independent Directors in Asia: A Historical, Contextual an... more This article is a book review of "Independent Directors in Asia: A Historical, Contextual and Comparative Approach."

Corporate Governance Codes for the 21st Century, 2017

European Business Law Review

This paper deals with some interesting recent corporate governance developments in Germany. The f... more This paper deals with some interesting recent corporate governance developments in Germany. The focus is in particular on the German Corporate Governance Code, its parts, layout and how it deals with the various organs of German public corporations. The German Code is quite unique since it applies a Code of Good Practice to a two-tier board system, thus making it necessary to deal with the role and functions and the relationship between the management and the supervisory board. This paper concludes that several changes to the German law relating to public corporations since the middle of the 1990s and the introduction of the German Code will ensure that the two-tier board system will remain the favoured board structure for public corporations in Germany. It is, however, submitted that employee participation at supervisory board level will provide particular political challenges for Germany in the near future.

Directors’ statutory duty to exercise their powers ‘in the best interests of the corporation (com... more Directors’ statutory duty to exercise their powers ‘in the best interests of the corporation (company)’ can be found in s 181(1)(a) of the Corporations Act 2001 (Cth). On numerous occasions the courts, both in the United Kingdom and Australia, have held that there it is also a common law duty for directors to exercise their powers ‘in the best interests of the corporation as a whole’ and that ‘the corporation’ means ‘the corporators (shareholders) as a general body’. In this article, the focus will be on these phrases and the aim is to establish whether these phrases create potentially competing duties for directors. The various interpretations of these duties have resulted in considerable complexity and legal uncertainty as far as directors’ duties are concerned. The UK case of Greenhalgh v Arderne Cinemas Ltd and the Australian High Court case of Ngurli Ltd v McCann will be analysed and their impact on many other cases will be dealt with in some detail. Throughout this article the...

Directors’ concerns about personal liability exposure in Australia have occupied the minds of aca... more Directors’ concerns about personal liability exposure in Australia have occupied the minds of academics, professionals and government institutions for many years. The introduction of the statutory business judgment rule in s 180(2) of the Corporations Act 2001 (Cth) was welcomed widely and with enthusiasm. However, a closer look at this statutory rule and the few cases where it was used as a defence, reveal that the actual protection it provided for directors against personal liability is negligible. This paper will discuss the various proposals for reform made by academics, government organisations and industry bodies. It will also argue that the current state of affairs in Australia regarding the statutory business judgment rule is one of uncertainty, and that the protection directors hoped would be provided by the safe harbour provision in s 180(2) is illusory. Wider protection for directors against personal liability is proposed in this paper. It is proposed that s 180(2) and (3...

The company lawyer, 2015

The authors explore some significant developments in recent times regarding modern expectations o... more The authors explore some significant developments in recent times regarding modern expectations of corporations and the considerable impact of corporations on modern society. They also focus on some of the most dominant corporate law theories such as the shareholder primacy theory, the enlightened shareholder value theory and the stakeholder theory. They illustrate that these developments require broader reporting than just financial reporting as is currently required by law for purposes of financial statements and reports. They then analyse the trend of broader reporting also on social and environmental issues. These forms of reporting have been made under general descriptive terms such as corporate social reporting (CSR), sustainability reporting, integrated reporting and responsibility reporting. The question is then asked whether directors are opening themselves to greater liability by producing these forms of non-statutory reports. They compare three jurisdictions, namely Austr...

Deakin Law Review, 2014

This article examines diversity on corporate boards, focussing on gender diversity and taking bot... more This article examines diversity on corporate boards, focussing on gender diversity and taking both contemporary and historical perspectives. Australia forms a particular focus of this article, but, as far as mandatory quota legislation is concerned, other jurisdictions provide comparisons. The authors illustrate how Australian corporate board gender diversity is starting from a low base in contrast to some other types of boards. Arguments for and against more women on boards are analysed in order to provide a comprehensive examination of extant research. The article also examines briefly whether a business case can be made for board gender diversity within the wider framework of board diversity. The authors acknowledge that there are unanswered questions about the right gender balance on boards and whether, without mandatory quota legislation, a voluntary system can achieve best practice targets. They explore the notion of critical mass - the idea that, upon board representation rea...

The use of general descriptive names, registered names, trademarks, service marks, etc. in this p... more The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Deakin Law Review, 2013

Board diversity has been a hot topic for several years. However, it is only in recent years that ... more Board diversity has been a hot topic for several years. However, it is only in recent years that pertinent questions have been asked about what is actually meant by board diversity and what would constitute a board with an ideal diversity. In the past the debate on board diversity has always been dominated by the lack, or very low numbers, of females on boards. This has been a fact in most countries with sophisticated corporate law and corporate governance systems in place. The issue of female representation on boards still dominates the board diversity debate, but other forms of diversity, including age, cultural, nationality and race have also become part of the debate. The quest is to find answers to questions like whether a diversified board would be better, and whether diversified boards will ensure a better return for investors; in other words, whether there is a ‘business case’ to be made out to have diversity on a board. Many studies have been done, but the answer is still e...

Keeping Good Companies, Oct 1, 2005

Australian Journal of Corporate Law, 2012

South African Law Journal, 2010

Plessis 'Possible remedies for shareholders when a company refuses to declare dividends or declar... more Plessis 'Possible remedies for shareholders when a company refuses to declare dividends or declare inadequate dividends' 2005 TSAR 48 at 56. 2 See Carlen v Drury 35 ER 61 at 63. 3 Ibid. 4 Ibid.

Keeping good companies, Oct 1, 2005

Deakin Law Review, Aug 1, 2014

SSRN Electronic Journal, 2018

This article is a book review of "Independent Directors in Asia: A Historical, Contextual an... more This article is a book review of "Independent Directors in Asia: A Historical, Contextual and Comparative Approach."

Corporate Governance Codes for the 21st Century, 2017

European Business Law Review

This paper deals with some interesting recent corporate governance developments in Germany. The f... more This paper deals with some interesting recent corporate governance developments in Germany. The focus is in particular on the German Corporate Governance Code, its parts, layout and how it deals with the various organs of German public corporations. The German Code is quite unique since it applies a Code of Good Practice to a two-tier board system, thus making it necessary to deal with the role and functions and the relationship between the management and the supervisory board. This paper concludes that several changes to the German law relating to public corporations since the middle of the 1990s and the introduction of the German Code will ensure that the two-tier board system will remain the favoured board structure for public corporations in Germany. It is, however, submitted that employee participation at supervisory board level will provide particular political challenges for Germany in the near future.

Directors’ statutory duty to exercise their powers ‘in the best interests of the corporation (com... more Directors’ statutory duty to exercise their powers ‘in the best interests of the corporation (company)’ can be found in s 181(1)(a) of the Corporations Act 2001 (Cth). On numerous occasions the courts, both in the United Kingdom and Australia, have held that there it is also a common law duty for directors to exercise their powers ‘in the best interests of the corporation as a whole’ and that ‘the corporation’ means ‘the corporators (shareholders) as a general body’. In this article, the focus will be on these phrases and the aim is to establish whether these phrases create potentially competing duties for directors. The various interpretations of these duties have resulted in considerable complexity and legal uncertainty as far as directors’ duties are concerned. The UK case of Greenhalgh v Arderne Cinemas Ltd and the Australian High Court case of Ngurli Ltd v McCann will be analysed and their impact on many other cases will be dealt with in some detail. Throughout this article the...

Directors’ concerns about personal liability exposure in Australia have occupied the minds of aca... more Directors’ concerns about personal liability exposure in Australia have occupied the minds of academics, professionals and government institutions for many years. The introduction of the statutory business judgment rule in s 180(2) of the Corporations Act 2001 (Cth) was welcomed widely and with enthusiasm. However, a closer look at this statutory rule and the few cases where it was used as a defence, reveal that the actual protection it provided for directors against personal liability is negligible. This paper will discuss the various proposals for reform made by academics, government organisations and industry bodies. It will also argue that the current state of affairs in Australia regarding the statutory business judgment rule is one of uncertainty, and that the protection directors hoped would be provided by the safe harbour provision in s 180(2) is illusory. Wider protection for directors against personal liability is proposed in this paper. It is proposed that s 180(2) and (3...

The company lawyer, 2015

The authors explore some significant developments in recent times regarding modern expectations o... more The authors explore some significant developments in recent times regarding modern expectations of corporations and the considerable impact of corporations on modern society. They also focus on some of the most dominant corporate law theories such as the shareholder primacy theory, the enlightened shareholder value theory and the stakeholder theory. They illustrate that these developments require broader reporting than just financial reporting as is currently required by law for purposes of financial statements and reports. They then analyse the trend of broader reporting also on social and environmental issues. These forms of reporting have been made under general descriptive terms such as corporate social reporting (CSR), sustainability reporting, integrated reporting and responsibility reporting. The question is then asked whether directors are opening themselves to greater liability by producing these forms of non-statutory reports. They compare three jurisdictions, namely Austr...

Deakin Law Review, 2014

This article examines diversity on corporate boards, focussing on gender diversity and taking bot... more This article examines diversity on corporate boards, focussing on gender diversity and taking both contemporary and historical perspectives. Australia forms a particular focus of this article, but, as far as mandatory quota legislation is concerned, other jurisdictions provide comparisons. The authors illustrate how Australian corporate board gender diversity is starting from a low base in contrast to some other types of boards. Arguments for and against more women on boards are analysed in order to provide a comprehensive examination of extant research. The article also examines briefly whether a business case can be made for board gender diversity within the wider framework of board diversity. The authors acknowledge that there are unanswered questions about the right gender balance on boards and whether, without mandatory quota legislation, a voluntary system can achieve best practice targets. They explore the notion of critical mass - the idea that, upon board representation rea...

The use of general descriptive names, registered names, trademarks, service marks, etc. in this p... more The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Deakin Law Review, 2013

Board diversity has been a hot topic for several years. However, it is only in recent years that ... more Board diversity has been a hot topic for several years. However, it is only in recent years that pertinent questions have been asked about what is actually meant by board diversity and what would constitute a board with an ideal diversity. In the past the debate on board diversity has always been dominated by the lack, or very low numbers, of females on boards. This has been a fact in most countries with sophisticated corporate law and corporate governance systems in place. The issue of female representation on boards still dominates the board diversity debate, but other forms of diversity, including age, cultural, nationality and race have also become part of the debate. The quest is to find answers to questions like whether a diversified board would be better, and whether diversified boards will ensure a better return for investors; in other words, whether there is a ‘business case’ to be made out to have diversity on a board. Many studies have been done, but the answer is still e...

Keeping Good Companies, Oct 1, 2005

Australian Journal of Corporate Law, 2012

South African Law Journal, 2010

Plessis 'Possible remedies for shareholders when a company refuses to declare dividends or declar... more Plessis 'Possible remedies for shareholders when a company refuses to declare dividends or declare inadequate dividends' 2005 TSAR 48 at 56. 2 See Carlen v Drury 35 ER 61 at 63. 3 Ibid. 4 Ibid.