New trends regarding sustainability and integrated reporting for companies: what protection do directors have?

The authors explore some significant developments in recent times regarding modern expectations of corporations and the considerable impact of corporations on modern society. They also focus on some of the most dominant corporate law theories like the shareholder primacy theory, the enlightened shareholder value theory and the stakeholder theory. They illustrate that these developments require broader reporting than just financial reporting as is currently required by law for purposes of financial statements and reports. They then analyse the trend of broader reporting also on social and environmental issues. These forms of reporting have been done under general descriptive terms like corporate social reporting (CSR), sustainability reporting, integrated reporting and responsibility reporting. The question is then asked whether directors are opening themselves to greater liability by doing these forms of non-statutory reports. They compare three jurisdictions, namely Australia, Germany and South Africa. They conclude that the safe-harbour statutory provisions and some other statutory provisions in Australia and South Africa should be sufficient to protect directors against personal liability for judgment calls honestly made as long as the requirements of the statutory protection are present. The protection for directors in Germany seem to be more limited, especially in light of current statutory provisions requiring reporting on issues broader than financial issues and because of some recent developments in the European Union (EU) that will widen reporting obligations even further.