VIRGINIA E. HARPER HO, City University of Hong Kong (CityU) - School of Law
Email: v.harperho@cityu.edu.hk
GERLINDE BERGER-WALLISER, University of Connecticut - School of Business
Email: gerlinde.berger-walliser@uconn.edu
RACHEL CHAMBERS, University of Connecticut - School of Business
Email: rch@cloisters.com

This chapter contributes to the Handbook of Corporate Liability, Martin Petrin & Christian Witting, eds. (Edward Elgar: 2022). It discusses the challenges of imposing liability on corporate groups that are composed of separate legal entities under common control or coordination but which themselves generally lack an independent legal status. These challenges have proven difficult to resolve because they derive from the very features that have made corporate groups the dominant business actors worldwide. This chapter proposes reforms that could strengthen parent companies’ incentives to internalize the operational risks of their subsidiaries and business partners and also explores alternative paths to corporate group accountability beyond legal remedies.

JOHAN DAVID MICHELS, Queen Mary University of London, School of Law - Centre for Commercial Law Studies
Email: johan.david.michels@gmail.com
CHRISTOPHER MILLARD, Queen Mary University of London, School of Law - Centre for Commercial Law Studies
Email: c.millard@qmul.ac.uk
CHRIS REED, Queen Mary University of London, School of Law
Email: chris.reed@qmul.ac.uk

In this document, we respond to the Call for Evidence of the Law Commission of England and Wales regarding digital assets. We argue that the Law Commission's proposed criteria for possession create significant uncertainty for some types of digital asset, including security and utility tokens, domain names, digital files, and emails. We further encourage the Law Commission to consider the legal implications of its proposed reforms for post-mortem access to digital assets under succession law, so as to ensure that its approach will provide outcomes fit for the 21st century.

NEIL M. RICHARDS, Washington University School of Law, Yale Information Society Project, Stanford Center for Internet and Society
Email: nrichards@wustl.edu

This is the prepared testimony and statement for the records, including responses to questions for the record of Professor Neil Richards before the United States Senate Commerce Committee on December 9, 2020. The testimony explains that while Congress has failed to pass a comprehensive privacy bill despite many opportunities, the judgment of the European Court of Justice in Data Protection Commissioner v. Facebook, (commonly known as “Schrems 2”) represents a real opportunity for it to do just that in the near future. The testimony argues first that Congress should not just pass a comprehensive privacy bill, but one that gets it right, that provides clear but substantive rules for companies, and which provides adequate protections and effective remedies for consumers. A law that meets these features will not just protect consumers – it will be good for business as well, by helping enable transatlantic data flows and building the consumer trust that is essential for long-term sustainable economic prosperity for all. Second, it explains what the judgment in Schrems 2 requires, with particular emphasis on factors within the jurisdiction of the Senate Commerce Committee. Third, it offers some ways in which the Committee’s work can solve some of the challenges for data flows and privacy law that the Schrems 2 judgment raises or illustrates. Fourth, it argues that this Committee should pass a strong privacy law (including a duty of loyalty) that builds the consumer trust that is so essential to sustainable and profitable commerce.

SEAN LYONS, Independent
Email: seanlyons1st@gmail.com

This paper outlines significant developments which have occurred in recent times (2016 – 2021) as a growing number of regulators, standard setters, and other governance bodies begin to include explicit references to the value preservation imperative. These incremental steps are now directly impacting on corporate boardrooms as the moral obligation to preserve, protect, and defend stakeholder value is increasingly viewed as an important corporate consideration in terms of both company purpose and fiduciary duty.

This paper highlights the following important developments on this matter:

- Global Stewardship Principles (ICGN 2016)
- The Future of Audit (IAASB 2016)
- Enhanced Organizational Reporting (IFAC 2017)
- Enterprise Risk Management (COSO 2017)
- Global Governance Principles (ICGN 2017)
- UK Corporate Governance Code (FRC 2018)
- Guidance on Investor Fiduciary Duties (ICGN 2018)
- Defining Stewardship and Engagement (Investor Forum 2019)
- Fit for Purpose (NACD 2019)
- Integrated Corporate Governance (WEF 2020)
- Global Stewardship Principles (ICGN 2020)
- International Integrated Reporting Framework (IIRC 2021)
- Global Governance Principles (ICGN 2021)
- Integrated Thinking Principles (Value Reporting Foundation 2021)

THOMAS M. MADDEN, Marist College School of Management
Email: thomas.madden@marist.edu

Law review article pointing out the problem of the confused use of "fiduciary" in the federal common law of insider trading and offering a solution via modification of Rule 10b5-2.

JOÃO MARINOTTI, Indiana University Maurer School of Law, Center for Intellectual Property Research, Indiana University Maurer School of Law, Information Society Project, Yale Law School
Email: jmarinot@iu.edu

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately, referring to a large number of different concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” require different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or its status as property—demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to our data governance ills. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies.

PETER MOLK, University of Florida Levin College of Law
Email: pmolk@law.ufl.edu

Nonprofit corporations account for over a trillion dollars of American annual GDP, employ twelve million people, and include some of the most well-known organizations in the world. Yet despite their significance, many core corporate governance issues about nonprofits remain a black box. This Article, using newly available data, begins to remedy this gap in the literature.

Using filing data from 300,000 charitable nonprofits, I examine the foundational issue of where nonprofits incorporate, a decision that determines both the law of nonprofit corporate governance affairs and public oversight apparatus for governance and compliance. Unlike publicly traded corporations, I find nonprofit incorporation choice is not a vigorously competitive race to the top or bottom, but instead is better characterized as a stroll. A nonprofit’s headquarters jurisdiction is the most popular incorporation destination - far more common than for publicly traded corporations. However, among those nonprofits that incorporate out-of-jurisdiction, Delaware is the most popular destination, with the District of Columbia a surprising second. The findings are consistent with nonprofits’ selecting weaker governance and oversight rules, suggesting a potential “stroll to the bottom” among nonprofits. Using these results, I offer evidence-based policy implications to improve governance of nonprofits, to reverse the potential stroll to the bottom, and to invigorate beneficial state competition for nonprofit incorporations.