Neither here nor there: Reconciling nominee directors’ dual loyalties under the Indian Companies Act 2013

Kaul, Aparajita and Agarwal, Rishika (2023) Neither here nor there: Reconciling nominee directors’ dual loyalties under the Indian Companies Act 2013. Oxford University Commonwealth Law Journal, 22 (2). pp. 205-228. ISSN 1472-9342

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Abstract

The objective of this article is to determine how Indian law can resolve the conflict of dual loyalties faced by nominee directors. We first study nominee directors’ duties towards their nominator in commercial practice, and directors’ duties under the stakeholder-oriented provision of section 166(2) in Indian Companies Act 2013. We then take stock of the judicial approaches towards nominee directors in the United Kingdom and in India. The Companies Act 2013 is presently inadequate to resolve the identified conflict. We suggest codifying a pragmatic approach by allowing nominee directors to pursue their nominator’s interests, subject to the company’s interests. To determine the company’s interests, we refer to the Entity Maximisation and Sustainability Approach proposed by Andrew Keay that allows for a plurality of interests to be considered by a director, while providing a clear objective. In concluding, we call for further deliberation on the enforcement of the nominee directors’ duties.

Item Type: Article
Keywords: Corporate Governance | Fiduciary Duties | India | Nominee Directors | Stakeholder Theory
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 03 Feb 2023 04:41
Last Modified: 03 Feb 2023 04:41
Official URL: https://doi.org/10.1080/14729342.2022.2151793
URI: https://pure.jgu.edu.in/id/eprint/5547

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