英文摘要 |
Given that the rising risk of sustainability impacts the operation of enterprises in recent years, directors who are under fiduciary obligations and oversight duties bear the brunt of playing the vital role in managing corporate risk, making operational decisions, and mapping out sustainable strategies. In this article, Part II reviews fiduciary obligations and oversight duties imposed on directors, then discusses correlations between directors’ oversight duties and the establishment and implementation of the mechanisms of internal compliance and ESG information disclosure. After recapping recent cases decided by Delaware courts such as Marchand v. Barnhill and In re Clovis Oncology, Inc. Derivative Litigation, this article will review their elaboration and implications on directors’ oversight duties. Surrounding the discussions of the establishments of legal compliance and governance mechanisms of ESG, in accordance with the analyses of directors’ oversight duties in Part II, directors shall establish and implement systems of internal reporting and compliance. This argument echoes commentators’ concept of boards in information governance. Namely, the role of the board of directors should transform from their traditional “passive” one in merely monitoring corporate governance to a more “active” one to enable directors, while fully informed, to take initiatives in participating in forming corporate strategies and shaping corporate identities via balancing interests of stakeholders. That way, the board can map out trends in operations management, compliance policies and sustainability-related strategies. Part III will delve into regulatory practices of sustainability governance in Taiwan and analyze how the Taiwanese legal regime would facilitate the implementation of board-level information governance and stakeholder governance. As for regulatory strategies, this article discusses current development of judicial opinions on oversight duties, then looks into policy instruments adopted by the Financial Supervisory Commission (the “FSC”) in stepping up sustainability governance, such as: announcing corporate governance blueprints successively, promoting corporate governance evaluations in a phased fashion during these years, and amending Regulations Governing Information to be Published in Annual Reports of Public Companies. In the meantime, the Taiwan Stock Exchange and the Taipei Exchange have together promulgated amendments to Sustainable Development Best Practice Principles for TWSE/TPEx Listed Companies to encourage listed companies to put sustainability governance into practice. In sum, this article argues that laws and regulations in promoting sustainability governance in Taiwan should be based on the theory of boards in information governance; with respect to substantive implementations, the laws and regulations can serve as ex ante and ex post legal strategies. Meanwhile, just as the well-known quotation of President Theodore Roosevelt, “Speak softly and carry a big stick; you will go far”, the FSC should make good use of regulatory strategies with hard and soft law combined to push listed companies to engage in transformation of sustainability governance. Specifically, those companies would internalize external pressures regarding stakeholder governance from the market and government into their internal ethical codes, e.g., through internal controls to tie executive compensation to ESG performance in corporations. Such combination of regulatory strategies would facilitate careful management of sustainable risks by boards of directors, who could then customize related sustainable development strategies, in response to the current global trend toward ESG transformations in not only public but also private sectors. |