A critical examination of the 2016 Code of Corporate Governance of Mauritius and its enshrinement in the Companies Act 2001

IF 1.3 Q1 LAW

International Journal of Law and Management Pub Date : 2023-09-28 DOI:10.1108/ijlma-05-2023-0115

Bhavna Mahadew

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引用次数: 0

Abstract

Purpose The purpose of this study is to provide for critical literature on the legal aspects of corporate governance and their application in Mauritius. The drawbacks of having the principles in the form of a non-binding code are discussed, and a case is made to consider their enshrinement in laws such as the Companies Act 2001 to render them legally enforceable for the good health of companies in Mauritius. Design/methodology/approach A doctrinal legal methodology has been adopted to assess the effectiveness of the principles of the 2016 Code of Corporate Governance of Mauritius. Legislations, legal texts, case law and regulations are used to conduct this assessment. In addition, a black-letter approach is taken while discussing the enshrinement of the principles in the Companies Act 2001 of Mauritius. The doctrinal methodology is further supported by a qualitative analysis of the principles of corporate governance based on existing legal literature, which emphasises their relevance and importance. Findings The principles of the 2016 Code of Corporate Governance are no doubt a progress over the former 2004 Code in various aspects, aligning the Code with the requirements of the OECD. However, there are still certain loopholes that have been highlighted. In addition, the extent to which these principles are reflected in the Companies Act, which is the primary legislation for companies, has been found to be lacking and inadequate. Originality/value This paper is, to the best of the author’s knowledge, the first legal literature concerning the Mauritian legal framework on corporate governance. This is relevant because the country has recently experienced corporate collapses, which could arguably have been avoided with the application of the principles of corporate governance. As such, the paper will present a case study that can be used as a reference for future research on the enforceability and justiciability of these principles.

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对2016年毛里求斯公司治理准则及其在2001年公司法中的体现进行了批判性审查

本研究的目的是提供关于公司治理的法律方面及其在毛里求斯的应用的关键文献。讨论了以不具约束力的法典形式提出这些原则的缺点，并提出了一个案例，考虑将这些原则纳入《2001年公司法》等法律，使其在法律上具有可执行性，以保证毛里求斯公司的良好健康。设计/方法/方法采用了一种理论法律方法来评估毛里求斯2016年公司治理准则原则的有效性。立法、法律文本、判例法和法规被用来进行这种评估。此外，在讨论将这些原则纳入毛里求斯《2001年公司法》时，采用了黑体字方法。根据现有法律文献对公司治理原则进行的定性分析进一步支持了理论方法，强调了这些原则的相关性和重要性。2016年《公司治理准则》的原则无疑在各方面都比2004年《公司治理准则》有所进步，使《公司治理准则》符合经合组织的要求。然而，仍有一些漏洞被凸显出来。此外，这些原则在作为公司主要立法的《公司法》中反映的程度被认为是缺乏和不充分的。据作者所知，这篇论文是关于毛里求斯公司治理法律框架的第一篇法律文献。这是相关的，因为该国最近经历了企业倒闭，可以说，如果应用公司治理原则，这种倒闭是可以避免的。因此，本文将提出一个案例研究，可以作为未来研究这些原则的可执行性和可诉性的参考。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

International Journal of Law and Management LAW-

CiteScore

3.90

自引率

6.70%

发文量

期刊介绍： The International Journal of Law and Management is a leading journal addressing all aspects of regulation and law as they impact on organisational development, operations and leadership. Organisations and their leaders operate in an increasingly complex world of emerging regulation across national and international boundaries. The International Journal of Law and Management seeks to acknowledge the dynamics of that environment and provide a platform for articles and contributions to stimulate scholarly debate in the development of law and practice. The International Journal of Law and Management seeks to present the latest research on policy, practice and theoretical perspectives and their impact on the development and leadership of organisations. Contributions of a multi-disciplinary nature are welcome. Coverage includes, but is not limited to: -Employment and industrial law- Corporate governance and social responsibility- Intellectual property- Corporate law and finance- Insolvency- Commercial law and consumer protection- Environmental law- Taxation- Competition law- Regulatory theory