Christopher C. Nicholls

What is the proper purpose of business corporations? Should they focus exclusively on maximizing profits and shareholder value, or should they consider the interests of a broader range of stakeholders and pursue explicit social goals? This old debate has acquired new urgency. The shareholder primacy model that once dominated corporate law theory and practice has been fiercely challenged in a world threatened with climate change, growing wealth inequality, and disruptive political polarization. Yesterday's earnest calls for Corporate Social Responsibility (CSR) have given way to today's politically-charged debates surrounding the business and politics of ESG (Environmental, Social, and Governance factors). Corporate Governance and Enlightened Fiduciaries explores the origins of shareholder primacy and the nuances of the modern debates. It assesses the impact of powerful institutional investors and transformative financial innovation. Rejecting misguided attacks on the corporate system, it provides an extended analysis of the concepts of profit maximization and shareholder wealth maximization, while focusing on the corporation as a human invention governed by human decision-makers. Modern criticisms of the corporation are re-evaluated, drawing on lessons of history, sociology, economics, and the law. The result is a fresh, critical insight into the importance of the firm and the stewardship of its leaders within a free enterprise system confronting unprecedented modern challenges.

As global markets toppled during the 2008 financial crisis, the Canadian market for non-bank asset-backed commercial paper (ABCP) seemed on the verge of collapsing. Fueled by a top rating from DBRS, ABCP had found its way into the portfolios of some of Canada’s most sophisticated investors as well as vulnerable retail investors who didn’t know what they were holding. The failure of the $32 billion market could have tipped Canadian and foreign credit default swap markets into chaos if it weren’t for the swift actions of a few powerful asset holders. Collectively, through the Montreal Accord and led by veteran Canadian lawyer Purdy Crawford, they managed to hold the Canadian ABCP market back from the brink of collapse by crafting a complex and innovative solution. Back from the Brink goes behind the scenes of the ABCP crisis to examine how a solution was reached and lessons learned that could prevent or mitigate future crises. The authors also examine the imaginative use of the Companies' Creditors Arrangement Act and describe the roles played by the banks, the major investors, rating agencies, and the financial regulators in the crisis’s origins and conclusions. Back from the Brink holds important lessons for anyone interested in Canadian law, the future of complex investments, and Canada’s capital markets.