Earlier this year, I was invited to present a paper at the International Corporate Governance and Law Forum, organised by Prof JJ du Plessis of the School of Law of Deakin University, Australia. The Deakin Law School and the Business School of the Chinese University of Hong Kong co-hosted the Forum on 25 and 26 April 2016 in Hong Kong. The theme of the Forum was: ‘Reflections on Voluntary Corporate Governance Codes: Is it now time to move on from a “soft law” approach to a “hard law” approach?’ My paper was entitled “Corporate Governance: Soft Law Regulation and Disclosure - The Cases of the United Kingdom and South Africa”. The paper focused on the self-regulatory part of the hybrid corporate governance framework of the United Kingdom and of South Africa. The different approaches followed in these jurisdictions were compared and the impact of the approaches in practice considered. It was argued that soft law still has its place in the regulation of corporate governance, but that it can only be truly effective if disclosure is substantive.
It was shown that in the United Kingdom corporate governance issues are mainly regulated through a self-regulatory code based on a ‘comply or explain’ approach and that it is clear from the literature available that the majority view is that this approach has to be improved in order to have substantial compliance with the Code.
A conclusion was drawn that the South African King III Report has been successfully applied in practice and based on this a few selected characteristics of the South African corporate governance framework were highlighted. These initiatives and approaches provide a good platform for successful soft law regulation, which was explored in detail.
It was an honour to be able to present at this Forum and to engage with international academics and practitioners on the role of soft law in the context of corporate governance regulation.
Further information on the forum can be found at: http://2016.icgl.org.au/
~ Irene-marie Esser