Writing Sample by Ms Priya Garg

Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)

&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

NOMINEE DIRECTOR (ND): INDIAN POSITION REGARDING ND’S DUTY OF

LOYALTY AND ITS IMPLICATIONS FOR IMPROVING CORPORATE
GOVERNANCE IN FAMILY BUSINESSES

I. INTRODUCTION

In various jurisdictions, including India, while there is a significant amount of discussion

regarding the institution of independent directors (IDs) on a company’s board, there is less
attention paid to the office of nominee directors (NDs).1

An ND is a class of director nominated by a specific shareholder, creditor or any other

institution(s) to represent its interests on the board of the company to which the ND is
appointed.2

Fiduciary duties (FDs) of directors, as also stated under S. 166 of the Indian Companies Act
2013 (CA 2013),3 consist of various sub-duties. Of greatest relevance to the debate regarding an
ND’s duties are the duty of loyalty (i.e. the duty to give priority to the company’s interest over
that of the nominator), duty to avoid conflict of interest, duty to exercise independent
judgement and duty of confidentiality.4

Of these, duty of loyalty is debated upon the most. 5 It is generally understood that merely
because an ND is nominated by a specific entity or an institution, an ND does not become an
agent of the nominating institution (nominator) and that his FDs are similar to those of
ordinary directors.6 However, in the actual commercial world, an ND is expected to pay heed to
his nominator’s interest.7 Therefore, the question arises as to how an ND can balance his FDs
under law while honouring the explicit or implicit terms of his understanding with his
nominator.8 This issue regarding an ND’s duty of loyalty has been at the centre of discussion in

1
Nupur Pavan Bang & Kavil Ramachandran, ‘View: Ignore Nominee Directors’ At Your Own Peril’
Economic Times (Mumbai, 7 July 2021)
<https://economictimes.indiatimes.com/news/company/corporate-trends/view-ignore-nominee-
directors-at-your-own-peril/articleshow/84196693.cms> accessed 8 January 2022.
2
See The Companies Act 2013, s 149(7); see also Mohammad Rizal Salim, ‘Market freedom or
shareholders’ protection? A comparative analysis of the duties of nominee directors’ (2008) 50(4) Int. J.
Law Manag. 168, 170; see also Paul Redmond, ‘Nominee Directors’ (1987) 10 U.N.S.W.L.J. 194, 194; HAJ
Ford et al., ‘Australian Business Dictionary’ (1985) 127.
3
The Companies Act 2013, s 166.
4
ibid, 166(2).
5
See Paul Redmond, ‘Nominee Directors’ (1987) 10 U.N.S.W.L.J. 194, 194; HAJ Ford et al., ‘Australian
Business Dictionary’ (1985) 127, 196-197; see also Deirdre Ahern, ‘Nominee Directors’ Duty to Promote to
Promote Success of the Company: Commercial Pragmatism and Legal Orthodoxy’ (2011) 127 Law Q. Rev
118, 123-128; see also R.P. Austin, ‘Representatives and Fiduciary Responsibilities - Notes on Nominee
Directorships and Life Arrangements’ (1995) 7(1) Bond Law Rev. 19, 19.
6
Justice E W Thomas, ‘The Role of Nominee Directors and the Liability of their Appointers’ in I.M.
Ramsay (ed.), ‘Corporate Governance and the Duties of Company Directors’ (1997) University of
Melbourne 148, 148-149.
7
ibid.
8
ibid.
 Writing Sample by Ms Priya Garg
Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)
&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

various jurisdictions such as the UK, 9 Australia,10 Singapore,11 Malaysia,12 among others.
Arguably, in different jurisdictions, this question has been answered differently. Countries such
as the UK and Malaysia have adopted a strict approach. 13 As per this approach, in case of a
conflict between the company’s interest and the nominator’s interest, an ND should give
absolute priority to the former. Countries such as Australia have adopted a more liberal or
realistic approach whereby it is permissible for an ND to consider the nominator’s interest so
long as the company’s interest is not harmed (this approach is also termed as the ‘attenuated
duty approach’).14 Then, there are some countries such as Singapore and India where the
position is much more unclear and requires greater discussion.15

In this paper therefore, ND’s duty of loyalty in the Indian context specifically is discussed. This
is required not only because there is a general dearth 16 of literature in Indian on this point but
also because there have been two new legal developments that took place in the country and are
likely to affect an ND’s duty of loyalty. This discussion shall take place in Part II of the article.
Further, in Part II, not only the present position of law regarding an ND’s duty of loyalty in
India is discussed but also is the normative position in this regard that shall be analysed. Hence,
the latter part will have relevance for discussion regarding an ND’s duties for all jurisdictions.

9
Deirdre Ahern, ‘Nominee Directors’ Duty to Promote to Promote Success of the Company: Commercial
Pragmatism and Legal Orthodoxy’ (2011) 127 Law Q. Rev 118, 123-128.
10
‘Types of Directors’ (2020) Australian Institute of Company Directors
<https://aicd.companydirectors.com.au/-/media/cd2/resources/director-resources/director-tools/
2019/individual/07236-5-7-types-of-directors-fa.ashx> accessed 6 January 2022.
11
See Kumagai Gumi Co Ltd v Zenecon Pte Ltd. [1995] 2 SLR 297.
12
Mohammad Rizal Salim, ‘Market freedom or shareholders’ protection? A comparative analysis of the
duties of nominee directors’ (2008) 50(4) Int. J. Law Manag. 168, 174-176.
13
See Mashumi K. Mzaidume, ‘Nominee Directors: Different Rules’ (2004) University of the
Witwatersrand, Johannesburg, 2-7; see also Mohammad Rizal Salim, ‘Market freedom or shareholders’
protection? A comparative analysis of the duties of nominee directors’ (2008) 50(4) Int. J. Law Manag.
168, 174-176.
14
Deirdre Ahern, ‘Nominee Directors’ Duty to Promote to Promote Success of the Company: Commercial
Pragmatism and Legal Orthodoxy’ (2011) 127 Law Q. Rev 118, 133-137.
15
Pearlie Koh, ‘THE NOMINEE DIRECTOR'S TANGLED LOT: Jenton Overseas Investment Pte. Ltd. v.
Townsing Henry George Golden Village Multiplex Pte. Ltd. v. Phoon Chiong Kit’ (2007) Singap. J. Leg.
Stud 148; see Ifla A, ‘Codification Of Duties Of Directors Under The Companies Act 2013’ (2018) Mondaq
(25 April 2018) <https://www.mondaq.com/india/corporate-governance/695304/codification-of-duties-
of-directors-under-the-companies-act-2013> accessed 6 January 2022; see also Narasappa, Doraswamy
& Raja, ‘India: Classification of Directors’ (2011) Mondaq (28 November 2011)
<https://www.mondaq.com/india/corporate-governance/151238/classification-of-directors> accessed 6
January 2022.
16
In India, we have blogs or write-ups discussing this issue, though not as exhaustively as the issue
demands. Arjun Anand & Arushi Gupta, ‘The Viewpoint: Nominee Director - The tug of war between duty
to company and nominator’ Bar & Bench (2020) <https://www.barandbench.com/view-point/nominee-
director-the-tug-if-war-between-duty-to-company-and-nominator>; Priya Garg ‘The duties of nominee
directors require greater clarity’ LiveMint (2021) <https://www.livemint.com/opinion/online-views/the-
duties-of-nominee-directors-require-greater-clarity-11628093667850.html>; Sudipto Dey, ‘Tata-Mistry
case: SC verdict puts spotlight on duties of nominee directors’ (Business Standard, April 10 2021)
<https://www.business-standard.com/article/companies/tata-mistry-case-sc-verdict-puts-spotlight-on-
duties-of-nominee-directors-121040901446_1.html>.
 Writing Sample by Ms Priya Garg
Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)
&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

Thereafter, once an ND’s (revised) duty of loyalty and its normative nature is discussed, I shall
point out in Part III how it is advisable to formally acknowledge the majority shareholder or
family member director in family businesses as NDs and how the peculiarity hidden in the
language of S. 166(2) of the CA 2013 in India openly allows for this possibility. This is an
unexplored possibility and the discussion can be pioneering for other jurisdictions intending to
resolve the corporate governance issues of family businesses.

The scope of the paper is confined to analysing the role and duties of an ND. It does not extend
to discussing the duties and liabilities that may arise for the nominator of the ND though I
acknowledge that it can be a pertinent question to discuss especially in family businesses where
the nominator is likely to be a controlling family member.

II. ND’s DUTY OF LOYALTY IN INDIA: THE ‘IS’ AND THE ‘OUGHT’
PICTURE

In this part, I shall discuss the position of law regarding an ND’s duty of loyalty in India [Part
2.1] and that whether the Indian position represents the normative position of law [Part 2.2].

II.1. The “IS” picture for India

Prior to the CA 2013, it could have been easier to argue that the Indian position regarding an
ND’s duty of loyalty is similar to that of the UK (i.e. the adoption of strict approach). 17

However, in light of the two recent legal developments in India, the position seems to have
altered from the UK’s strict approach to Australia’s liberal stand and possibly even beyond.

a) Development 1: insertion of S. 166(2) under the CA 2013

First, under the CA 2013, S. 166 containing statutory duties of directors has been introduced. S.
166(2) discussed director’s duty of loyalty and it has three parts within it. 18

First, a director should promote the objects of the company for the benefit of its members as a
whole (“part 1”).19 Second, a director should work in the best interests of employees,
community, shareholders (“part 2”).20 Third, the director should act for the protection of
environment (“part 3”).21

Parts I, II and III are joined by the conjunction ‘and’. This indicates that as part of a director’s
duty under S. 166(2), he should satisfy all the three requirements. Further, it is crucial to note
that within part II itself, among the 3 entities namely shareholders, employee, company (whose

17
See AES OPG Holding (Mauritius) and Ors. v Orissa Power Generation Corporation Ltd and Ors.
(2005) 3 Comp LJ 139 CLB; see also Rolta India Ltd. & Anr. v Venire Industries Ltd. & Ors. 2000 (2)
Bom CR 241.
18
The Companies Act, s 166(2).
19
ibid.
20
ibid.
21
ibid.
 Writing Sample by Ms Priya Garg
Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)
&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

interest a director should regard), there is no use of any conjunction such as ‘and’ or ‘or’. Hence,
no hierarchy or guidance or mandate is provided in the part II of S. 166(2) regarding how a
director should choose among these three entities. Hence, it can be argued that now a director
has the liberty to keep the interest of the three entities named under part II, shareholders,
employee and company, on the same pedestal. This permissibility has special relevance for NDs
for now they can be said to be permitted to place the interest of the company or his nominator
(if they are also the shareholder or employee of the company) on the same pedestal. Hence, to
that extent, the Indian approach seems to have moved away from the strict UK approach and
somewhat closer to the liberal Australian approach. This point shall be dealt with in greater
details towards the end of this sub-part.

Scholars such as Umakanth Varottil and Mihir Naniwadekar (the authors) may disagree with
my interpretation of S 166(2). 22 They argue that prima facie, while it may appear that under
Indian law S. 166(2) allows directors to treat non-shareholders’ interests as an ‘end’ in itself
(called the pluralist model), on digging deeper it emerges that the non-shareholder stakeholders’
interests can be given importance only to ultimately enhance shareholders’ interests. 23 I
respectfully disagree with their opinion especially in the context of NDs.

The authors have reasoned that Indian has not adopted a plurality approach despite the
language of S. 166(2) because the non-shareholder stakeholders still cannot enforce their so-
called right given under S. 166(2) if directors ignore their interests. 24 While this viewpoint is
correct, it only focuses on the failure of S. 166(2) to provide a ‘sword’ in the hands of non-
shareholder stakeholders if a director fail to work for their welfare. This line of reasoning
neglects the ability of S. 166(2) to provide a ‘shield’ in the hands of a non-shareholder
stakeholder or a director should anyone sue him for prioritizing the non-shareholder
stakeholders’ interest over that of the shareholders or company. It is this ‘shield’ offered by S.
166(2) that should allow NDs to consider the nominator’s interests. 25

Further, the authors interpret S. 166(2) in light of the committee reports/legislative debates
preceding it.26 As per the rule of literal interpretation, this is not an appropriate route especially
while interpreting the duties of NDs because the language of S. 166(2) is clear and it does not
even create the above-mentioned enforcement problems specifically in the context of NDs.

22
Umakanth Varottil & Mihir Naniwadekar, ‘The Stakeholder Approach Towards Directors’ Duties Under
Indian Company Law: A Comparative Analysis’ (2016) NUS Centre for Law & Business Working Paper
16/03, 10 <https://law.nus.edu.sg/wp-content/uploads/2020/04/006_2016_Umakanth.pdf> accessed 6
January 2022.
23
ibid 7-12.
24
ibid 13-14.
25
Priya Garg, ‘The Duties of Nominee Directors Require Greater Clarity’ LiveMint (New Delhi, 5 August
2021) <https://www.livemint.com/opinion/online-views/the-duties-of-nominee-directors-require-
greater-clarity-11628093667850.html> accessed 8 January 2022.
26
Umakanth Varottil & Mihir Naniwadekar, ‘The Stakeholder Approach Towards Directors’ Duties Under
Indian Company Law: A Comparative Analysis’ (2016) NUS Centre for Law & Business Working Paper
16/03, 7-10 <https://law.nus.edu.sg/wp-content/uploads/2020/04/006_2016_Umakanth.pdf> accessed
6 January 2022.
 Writing Sample by Ms Priya Garg
Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)
&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

Another concern that the authors had in accepting that S. 166(2) adopts pluralistic approach was
that it would give unbridled discretion to directors by allowing them to work for the benefit of
‘any’ stakeholder at the cost of the company. I would call it the concern regarding the lack of
accountability. However, this concern does not apply as much to an ND for they need to strike a
balance just between the company’s and their nominator’s interest. Hence, their constituencies
are not too diluted to reduce accountability.

Hence, it may be legally possible for NDs to actively consider the nominator’s interest as per the
language of S. 166(2).

However, given that now the company, the shareholders and the employees have been kept at
the same pedestal under Part II of S. 166(2), a question may arise as to whether the Indian law
has gone even beyond Australia’s liberal approach. This is because Australian law still appears to
allow for the consideration of nominator’s interest provided ultimately the company’s interest is
kept safeguarded.

I argue that the Indian law has laid down a new standard instead. First, under S. 166(2), a
director, including an ND, cannot pay exclusive regard to the nominating shareholder or
employee. This is because Part I of S. 166(2) stating that the director should promote the object
of the company for the benefit of its members as a whole and Part II of S. 166(2) incorporating
the three entities and placing them at the same pedestal are connected by the conjunction “and”.
This means both Part I and II should be satisfied by directors as per the literal rule. Hence, a
director, including an ND, may prioritise the nominator’s interest provided his act promotes the
‘objective’ (and not “interest”) of the company for the benefit of the members as well. The phrase
‘object of the company for the benefit of members as whole’ seems to be a different test from the
guidance of working ‘towards the interest of the company’. First, there is difference between
pursuing the ‘objectives’ of the company and undertaking what may be in ‘interest’ of the
company. Second, working for the ‘objective of the company for the benefit of members as a
whole’ is different from the phrase ‘working for the interest of the company’ because in case of
the latter, interest of the company can cover interest of various stakeholders, besides the
members.27 Third, a peculiar position under the Indian law due to the language of S. 166(2) is
that a director such as an ND can prioritise his nominator’s interest only when such nominator
is a shareholder or employee of the company for under the language of part II of S. 166(2), only
these two stakeholders are included to be considered by directors. Hence, if the nominator is the
company’s creditor, an ND will feel tied back to the original position because at least the
language of S. 166(2) would not guard him.

However, in absence of a judicial precedent and lack of guidance from other jurisdictions
precisely on this point, there continues to remain ambiguity regarding an ND’s duty of loyalty.
This ambiguity gets some solution as well as new point of dilemma in the recent Tata-Mistry

27
See Umakanth Varottil & Mihir Naniwadekar, ‘The Stakeholder Approach Towards Directors’ Duties
Under Indian Company Law: A Comparative Analysis’ (2016) NUS Centre for Law & Business Working
Paper 16/03, 19 <https://law.nus.edu.sg/wp-content/uploads/2020/04/006_2016_Umakanth.pdf>
accessed 6 January 2022.
 Writing Sample by Ms Priya Garg
Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)
&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

verdict of the Hon’ble Supreme Court of India. 28 This is the second legal development that seems
to have affected an ND’s duties of loyalty in India. This point shall be taken up in the next part.

b) Development 2: Court’s recent verdict in the Tata-Mistry case

The Indian Supreme Court’s made observations regarding an ND’s duty and role in the recent
Tata-Mistry case (paras 213-218). In the case, the ousted Chairman alleged, among other things,
that the company’s ND gave priority to the nominator’s interest over that of the company. In
response to this allegation, the Court wondered if every director were to have the same duty of
exercising independent judgment, then why there would be a provision mandating the
appointment of IDs to the board.29

First, this implies that the Court was willing to allow an ND to actively consider the nominating
shareholders’ interests. Hence, this observation provides some affirmation that India seems to
have moved from the UK’s strict approach regarding ND’s duty of loyalty.

Second, this observation regarding ND’s duty in light of the presence of sufficient number of IDs
on the board raises the question that if it is permissible for a director at a time to compromise
with the company’s interest or change the content of his FDs should the board composition ‘as a
whole’ provide assurance (for instance due to the presence of IDs on the board) that the
company’s interest would eventually be taken care of by the board as a collective unit. Before
this possibility is accepted it ought to be remembered that S. 166 under the CA 2013 has duties
for individual directors and not for the board. Hence, the extent to which the Court’s
observation may be applied to a director, including an ND, is unclear and adds to the already
existing ambiguities we have regarding ND’s duties. Further, this line of argumentation that the
court has adopted regarding viewing directorial duties is an unexplored proposition in other
jurisdictions too. It is certainly an interesting one to explore.

Hence, conclusively speaking, it is somewhat clear that in light of the recent developments, in
various (not all) instances of ND’s duties, Indian law has moved from the strict UK to the liberal
approach in Australia. However, it continues to remain unclear whether the Indian position has
moved even beyond Australia, and if yes, to what extent, this has been done.

While this part discusses the present position of law in India, the next part discusses the
normative nature of this position.

II.2. The “OUGHT” picture for India (and other jurisdictions)

In this part, I shall discuss below the five reasons behind the normative suitability of the
Australian approach (something that Indian too seems to have adopted) [Part 2.2.1]. However,
I shall leave open the discussion that if it is desirable theoretically, conceptually, and practically
to go liberal beyond or differently from the Australian approach—something that India seems to
have done too. In Part 2.2.2, I shall merely make some passing observations on the matter.
28
Tata Consultancy Services Ltd. v Cyrus Investments (P) Ltd. 2021 SCC OnLine SC 272 .
29
ibid ¶ 217.
 Writing Sample by Ms Priya Garg
Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)
&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

II.2.1. Normativity of the Australian approach in relation to ND’s duty of loyalty

a) Reason 1: need for heterogeneous duties for directors

There have been authors who have pointed out, specifically in the context of NDs, that duties of
different categories of directors should be heterogeneous in light of commercial reality. 30

While their work is helpful, it is important first to define what this ‘heterogeneity’ means (which
these articles mostly omit to do). This shall greatly determine the validity of the arguments in
favour of heterogeneity.

I shall define heterogeneity in the following manner:

Given that:

a) the FDs are broadly termed to accommodate varying circumstances,

b) the FDs of directors apply in commercial context,

c) more often than not, single company law governs all kinds of companies in a
jurisdiction and

d) a significant portion of corporate governance literature in any country is significantly

(and unfortunately) a blind transplantation of the literature of other (mostly)
developed countries,

the manner in which the broadly termed FDs are interpreted is and ought to be dynamic to
account for all the contingencies.31

This desirability for the context-specific application of the widely termed FDs is heterogeneity as
per my understanding. Hence, heterogeneity should not be taken to mean that the content of the
FDs becomes different for different directors or companies; instead it is the “application” of
broadly termed FDs that remains dynamic across different contexts. In other words, while
variability should be allowed in terms of director’s duty of loyalty, the common line should
remain something on the lines of ‘promoting the interest of the company’. 32 And it is this
heterogeneity that I wish to advocate for, for directors in general and NDs in particular.

30
Martin Gelter & Geneviève Helleringer, ‘Lift Not The Painted Veil! To Whom Are The Director Duties
Really Owed?’ (2015) 3 Univ. Ill. Law Rev. 1069, 1092-1115; Pearlie Koh, ‘THE NOMINEE DIRECTOR'S
TANGLED LOT: Jenton Overseas Investment Pte. Ltd. v. Townsing Henry George Golden Village
Multiplex Pte. Ltd. v. Phoon Chiong Kit’ (2007) Singap. J. Leg. Stud 148, 155.
31
See Levin v Clark [1962] N.S.W.R. 686; see Deirdre Ahern, ‘Nominee Directors’ Duty to Promote to
Promote Success of the Company: Commercial Pragmatism and Legal Orthodoxy’ (2011) 127 Law Q. Rev
118, 134.
32
See R.P. Austin, ‘Representatives and Fiduciary Responsibilities - Notes on Nominee Directorships and
Life Arrangements’ (1995) 7(1) Bond Law Rev. 19, 12; see also Martin Gelter & Geneviève Helleringer, ‘Lift
Not The Painted Veil! To Whom Are The Director Duties Really Owed?’ (2015) 3 Univ. Ill. Law Rev. 1069,
1097; see also Deirdre Ahern, ‘Nominee Directors’ Duty to Promote to Promote Success of the Company:
Commercial Pragmatism and Legal Orthodoxy’ (2011) 127 Law Q. Rev 118, 128.
 Writing Sample by Ms Priya Garg
Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)
&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

Further, besides the support for heterogeneity in director’s duties by academic literature, there
is confirmation of the permissibility to have such heterogeneity in the actual commercial world
as well. For instance, in some jurisdictions, chairperson who too is a director is expected to have
additional duties than a director simplictor or there are additional duties for an ID. 33
Heterogeneity in FDs seems to be permissible in the commercial world not only among different
categories of directors but also for the same director supervising and monitoring the company in
different set of circumstances. For instance, the UK acknowledges this kind of heterogeneity in
directorial duties by way of its duty-shifting rule. As per this rule, the directors, upon the onset
of insolvency, as part of their duty to work for the interest of the company, begin to owe their
duties to creditors of the company for now the creditors become the residual claimants instead
of the shareholders. 34

b) Reason 2: argument of the possibility of convergence of the strict and the

attenuated duty approach

Another reason why NDs should be allowed to give consideration to the nominator’s interest is
that it is submitted that both the strict and the attenuated duty or liberal approaches are
essentially the same approaches having a common bottom-line i.e. promotion of the company’s
interest.35 I agree with this view of the scholars that the two approaches appear to be different
because of their discussion in case laws in different contexts/circumstances.

If that be true, it can be argued, through both the approaches, that an ND should be allowed to
actively and openly consider his nominator’s interests so long as the company’s interest is not
harmed in the process.

c) Reason 3: meets the need for healthy dissent, balance and diversity

Further, while the corporate law experts and law and policy makers usually support the
introduction of the institution of ID, authors such as Ashby cautioned against the possible harm
of having too many IDs on the board. They have advocated for having various types of directors
with somewhat distinct sense of loyalty for each category of them so as to bring about an
element of healthy dissent and balance to the board acting as a collective unit. 36

This sentiment was reflected by the Hon’ble Supreme Court in the Tata-Mistry case as well
whereby the court pointed out the complementary (and not the exact same) duties of NDs and
IDs.37
33
ASIC v. Rich, (2003) 44 ACSR 341; see ‘Types of Directors’ (2020) Australian Institute of Company
Directors <https://aicd.companydirectors.com.au/-/media/cd2/resources/director-resources/director-
tools/2019/individual/07236-5-7-types-of-directors-fa.ashx> accessed 6 January 2022.
34
Andrew Key, ‘The Shifting of Director Duties’ in the Vicinity of Insolvency’ (2015) 24(2) Int. Insolv. Rev.
140, 144.
35
Susanna Auyeung, ‘Nominee Directors: Sui Generis or Merely A Breed of Directors?’ (2004) One-Day
Symposium on Accountability, Governance and Performance in Transition – Proceedings 34, 36-38.
36
Seth W. Ashby, ‘Strengthening the Public Company Board of Directors: Limited Shareholder Access to
the Corporate Ballot vs. Required Majority Board Independence' (2005) U Ill L Rev 521, 560-561.
37
Tata Consultancy Services Ltd. v Cyrus Investments (P) Ltd. 2021 SCC OnLine SC 272 ¶217.
 Writing Sample by Ms Priya Garg
Oxford BCL, NLU-Kolkata Gold Medallist Alumna (12 Gold Medals)
&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

However, this line of reasoning can be applied in select circumstances. First, its pre-requisite is
to have some restrictions or control on the right to appoint an ND so as to ensure that there is
sufficient balance of various types of directors to have healthy diversity. 38 Second, this line of
reasoning is applicable in situations where the board works as a ‘cohesive’ unit so as to balance
each directors’ duties (which may not be the case with certain situations just as the board of a
joint venture company where the board is factional in nature with each set of directors
representing different parties to the JV).39

d) Reason 4: in touch with commercial reality

This point is self-explanatory. If different categories of directors would have different

‘application’ of their FDs duties, this would be more in touch with the actual commercial
reality.40 It is a healthy practice to acknowledge the commercial reality instead of acting as if
there is no such thing, for that alone allows for the effective regulation of what actually goes on
the ground.

e) Reason 5: manner of appointment as a way to classify directors in certain

entities and modification of FDs

Authors such as Ashby have pointed out in their work that one of the ways to classify directors is
the manner of their appointment.41 However, this approach is not an uncontested one. On the
other hand, there are authors who state that the manner of appointment is not important, what
is important is what the expectations are of the appointed directors once the appointment has
been made; and to that extent difference is drawn, for instance, between nominated and
nominee director.42 The latter sets of scholars argue that merely because a director is appointed
by a faction does not mean he becomes an ND. A director becomes an ND only when irrespective
of his method of appointment, he is expected to continue to consider the interest of the
nominator even after the appointment process is over. 43 Further, according to this school, an ND
does not begin to owe allegiance to the nominator simply by virtue of the ND’s nomination
unless there is an explicit or tacit understanding to that effect between the ND and the
nominator.44

38
Seth W. Ashby, ‘Strengthening the Public Company Board of Directors: Limited Shareholder Access to
the Corporate Ballot vs. Required Majority Board Independence' (2005) U Ill L Rev 521, 560-561, 554.
39
Bob Baxt, ‘The Expanding Scope of Personal Liability: A “Guide” for Nominee Directors’ (2003) AMPLA
Year Book 530, 532; see Olie, R. et al., ‘United or divided? Antecedents of board cohesiveness in
international joint ventures’ (2020) (1) 6 pp., Article 21123, Academy of Management Proceedings.
40
Mohammad Rizal Salim, ‘Market freedom or shareholders’ protection? A comparative analysis of the
duties of nominee directors’ (2008) 50(4) Int. J. Law Manag. 168, 168.
41
Seth W. Ashby, ‘Strengthening the Public Company Board of Directors: Limited Shareholder Access to
the Corporate Ballot vs. Required Majority Board Independence' (2005) U Ill L Rev 521, 560-561.
42
See Paul Redmond, ‘Nominee Directors’ (1987) 10 U.N.S.W.L.J. 194, 194; HAJ Ford et al., ‘Australian
Business Dictionary’ (1985) 127, 194-195.
43
ibid.
44
ibid.
 Writing Sample by Ms Priya Garg
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&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

However, I submit that sometimes the former becomes a more appropriate and realistic one to
understanding directorial duties. For instance, this may happen in the countries facing Type II
agency problems of corporate governance. There are majorly two types of corporate governance
or agency problems: type 1 agency problem and type 2 agency problem. Type I agency problem
refers to the conflict that may arise between the interest of the dispersed shareholders/owners
and the managers running the company. Type 2 agency problem on the other hand arises when
there is conflict of interest between the controlling shareholders running the how and the
minority shareholders.45 It is imperative to emphasise that Type II Agency problem occurs
where the companies have concentrated shareholdings and most importantly there exists an
element of informal and tacit control by concentrated shareholders who often may be family
members.46 Due to this element of concentration in ownership and presence of informal power
and control, in such companies, the lines between the nominated and nominee director may
become blurry, if not irrelevant, especially in case of the directors appointed by the shareholders
with concentrating shareholding. The director nominated by majority shareholder may begin to
act as an ND automatically. Hence, to adopt the Australian liberal approach would be to legally
and openly accommodate such real commercial possibilities.

II.2.2. Desirability of going more liberal than Australia

Once I have discussed the normative nature of the liberal Australian approach, when contrasted
with the strict UK approach, I would touch upon the desirability of going liberal even further.
While this discussion is beyond the scope of discussion of this article, I would like to make some
incidental observations regarding this aspect.

When we mention the possibility of going beyond the Australian approach, it may be helpful to
identify the various ways in which one can deviate from the Australian approach.

First, one can go the India way: i.e. allow the ND to give superseding importance to the
nominator’s interest so long as the same is in line with company’s ‘objective’ (as opposed to
‘interest’) for the benefit of the members as a whole. 47

Second, one can state that the ND should be freely allowed to consider the nominator’s interest
without the bottom-line of the need to have regard to the company’s interest or objectives. While
at first this may appear to be a significant departure from the acceptable position worldwide, it
may not be so in reality. After all, the bottom-line test of ‘taking care of the interest of the
company’ is vague as well. 48 For instance, in many cases, taking care of the interest of the
nominator may qualify as taking care of the interest of the company or an action may be justified

45
Vince Ratnawati Marbun, Mohamad Abdul-Hamid & Oluwatoyin Muse Johnson Popoola, ‘The
Influence of Agency Conflict Types I and II on Earnings Management’ Int J Econ Financial Issues (2016)
6 (S4) 126.
46
Umakanth Varottil, ‘A Cautionary Tale of the Transplant Effect on Indian Corporate Governance’ 2009)
21(1) Nat. L. Sch. Ind. Rev. 1, 14; see Jayati Sarkar & Subrata Sarkar, ‘Large Shareholder Activism in
Corporate Governance in Developing Countries: Evidence from India’ (2000) 1(3) International Review of
Finance 161, 168.
47
The Companies Act, s 166(2).
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if it takes care of the interest of the company in some distant future, if not in the short run.
Hence, this raises the question that wherever the bottomline is to safeguard the company’s
interest, if it is indeed a strong and effective safeguard?

Third, another way of going beyond the Australian approach can be to allow an individual
director to deviate from the general directorial duties so long as the board (as a whole) can take
care of the interest of the company (something that Tata-Mistry case as discussed above
suggested).49 While discussing the normativity of this idea is beyond the scope of discussion
here, a passing remark that I would like to make is that this approach may seem more possible
in jurisdictions or situations in which the board acts as a cohesive whole and where there are
sufficient number of directors to regard the company’s interest as a whole (like family business,
as opposed to the factional boards found in joint ventures).

Given that an ND’s (revised) duty of loyalty and its normative nature has been discussed, I shall
next point out in Part III how it is advisable to formally acknowledge the majority shareholder
or family member director in family businesses as NDs and how the peculiarity hidden in the
language of S. 166(2) of the CA 2013 in India openly allows for this possibility. This is an
unexplored possibility and the discussion can be pioneering for other jurisdictions intending to
resolve the corporate governance issues of family businesses.

III. UNIQUENESS HIDDEN IN S. 166(2) IN INDIA AND IMPLICATIONS FOR

FAMILY BUSINESS: AN IDEA FOR OTHER JURISDICTIONS TOO?

In family businesses, there are directors who are family members or are appointed by family
members who may also be majority shareholders. I shall call such directors in family businesses
as ‘family directors’. In Part 3.1, I shall argue how it is desirable to view the family directors as
NDs by default. Further, I shall highlight how in India due to the unique language of S. 166(2),
this possibility for viewing family directors as NDs is indeed permitted and facilitated.
Thereafter, in Part 3.2, I shall explain how the possible misuse of the liberty granted to a family
director in the capacity of an ND can be checked by the provisions relating to oppression,
mismanagement and unfair prejudice under company law.

III.1. Need to formally recognise family directors as NDs and (favourable) position of law
in India in this regard

For the purpose of the present discussion, the term family business shall mean “companies which
are effectively controlled by one or more family members and whose effective control is or is likely to be
transferred inter-generationally among family members alone”.

48
See Surbhi Soni, ‘Experiences with Pluralist Stakeholder Model in India: For Whom Should a Company
be Run?’ (2020) National Law School of India Review 5 July 2020 <https://nlsir.com/experiences-with-
pluralist-stakeholder-model-in-india-for-whom-should-a-company-be-run/> accessed 8 January 2022.
49
Renee B Adams, et al., ‘The Role of Boards of Directors in Corporate Governance: A Conceptual
Framework and Survey’ (2010 48(1) J Econ Lit 58, 61-62 (the author, though in a different context,
discusses that there is difference between board and individual directors).
 Writing Sample by Ms Priya Garg
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JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

At first, there may appear to be a negative correlation between the need for or the possibility of
having NDs on the boards of family businesses. 50 After all, as the family holding goes stronger,
the possibility of the minority shareholders or institutional investors appointing many NDs
should go down.51

However, this argument misses upon the possibility to view family directors as NDs. It is often
lamented that the family directors (i.e. the directors who are family members or are appointed
by family members) pay special heed to the needs of the family and family owners instead of
owing complete loyalty to the company. This issue can be resolved by formally and openly
accepting the family directors as NDs whereby their nominators are family member(s) and
therefore these directors consider their nominator’s interests to the extent permissible under
law in a given jurisdiction. At this juncture, it is crucial to acknowledge the difference between a
nominee and a nominated director. In case of the latter, even though someone appoints the
director, the director so nominated/appointed is not expected to pay any special consideration
to the needs of the nominator (unlike in case of the former, i.e. ND, who is expected to continue
to consider the nominator’s interest). So far, we have considered the directors appointed on the
family company’s boards as ‘nominated’ director by default which is away from the actual
commercial reality. On the contrary, if we begin to openly acknowledge that some (if not all) of
the family directors are actually NDs of the family and family members, there is a scope to better
regulate these directors.

This possibility is likely to be permissible in jurisdictions such as India 52 whereby the NDs need
not be non-executive directors. This way the family directors do not get disqualified to be an ND
by virtue of their usual participation in business management as well.

Further, if in a given jurisdiction or situation, the controlling shareholders were to be recognised

to have FDs towards the company and/or other shareholders, then their NDs i.e. the family
directors paying heed to such shareholders’ interests would anyway not be a flagrant deviation
from the bottom-line test of “interest of the company”—a special possibility in case of family
shareholding.

Another benefit of formally acknowledging the family directors as NDs of family members is
that then it would be viable to acknowledge the need for having a separate ND of only minority
shareholder (a concept recognised as in the form of a ‘small shareholder director’ in India).

50
Isabel Acero & Nuria Alcade, ‘Controlling Shareholders and The Composition of The Board: Special
Focus on Family Firms’ (2016) 10(1) Rev. Manag. Sci. 61, 78.
51
ibid.
52
See Priya Garg, ‘Can Nominee Director Be An Executive Director? An Exploration’ (2021) Corporate
House 14 July 2021 <https://thecorporatehouse.in/2021/07/14/can-a-nominee-director-be-an-
executive-director-an-exploration/> accessed 8 January 2022; see Deirdre Ahern, ‘Nominee Directors’
Duty to Promote to Promote Success of the Company: Commercial Pragmatism and Legal Orthodoxy’
(2011) 127 Law Q. Rev 118, 118; see also AES OPGC Holding (Mauritius) v Orissa Power Generation
Corporation Ltd. 2004 SCC OnLine CLB 35.
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&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

Hence, while in general, it is believed that as family control becomes stronger, especially in
listed companies, to send out positive signal against expropriation to investors, IDs are
appointed in more number, if one considers the reality of the equation in family business, 53 one
should identify the role that NDs can play in making the corporate governance mechanism of
family businesses more transparent, regulated and realistic.

This idea of the utilisation of the institution of ND in family businesses is more in sync with S.
166(2) of the Indian company law. Under S. 166(2), part II, a director is expected to act in the
best interest of three entities: company, shareholders and employee (besides having to act for
the benefit of members as a whole in pursuing company’s objective and for protection of
environment under parts I and III respectively). Hence, a family director appointed by family
members who happen to be shareholders too can regard their nominating shareholders’
interests (which say an ND appointed by creditors cannot as per the language of S. 166(2) as S.
166(2) identifies only three constituencies whose interest a company director can consider). This
is a legal possibility for a family director that other countries especially the ones replete with
family business should analyse for themselves too.

However, concerns may arise regarding the possible misuse of powers by family directors in the
capacity of NDs if such an explicit permission is granted to the directors to consider nominator’s
interests. However, solution to this can be found in the provisions relating to oppression,
mismanagement, unfair prejudice (collectively termed as “O&M” hereinafter). The O&M
provisions can be utilised if a family director acting as an ND unjustly use his powers. This shall
be discussed in the next sub-part [Part 3.2].

III.2. Protection against misuse of power through O&M provisions

Various jurisdictions, including India, have provisions similar to Chapter XVI 54 of the CA 2013
dealing with oppression, mismanagement and/or unfair prejudice.

While each of these three terms may have different scope and ambit across jurisdictions, the
essence of the O&M provisions is to protect the company and the minority shareholders against
the blatantly arbitrary, unreasonable, harsh, unfair/unjust, oppressive, conduct of the person(s)
leading the company.55 These persons leading the company could be shareholders or directors or
any other person(s).56 The O&M provisions equip (mostly the minority) shareholders of the
company to approach the court of law and seek reliefs if the above-mentioned acts are suspected
53
Isabel Acero & Nuria Alcade, ‘Controlling Shareholders and The Composition of The Board: Special
Focus on Family Firms’ (2016) 10(1) Rev. Manag. Sci. 61, 78.
54
Companies Act 2013, ch XVI.
55
For discussion regarding the meaning of oppression, see Umakanth Varottil, ‘Un-Packing the Scope of
Oppression, Prejudice and Mismanagement Under Company Law in India’ (July 2020) NUS Law
Working Paper 2020/020, 6-10 <
https://law.nus.edu.sg/wp-content/uploads/2020/07/020_2020_Umakanth.pdf>.
56
Heinrich Jansen Van Rensburg, ‘Protection Against Oppressive Or Unfairly Prejudicial Conduct Under
Companies Act 71 of 2008’ (2011) University of Cape Town
<https://open.uct.ac.za/bitstream/handle/11427/11568/thesis_law_2011_jansen_van_rensburg_h.pdf?
sequence=1>.
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&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

to be taking place in the company. 57 This is the case with India as well. 58 In some jurisdictions
such as Ghana,59 even a director can file an O&M suit.

While there may be a great utility of the O&M provisions for companies in general, these
sections can be especially helpful in the context of family businesses, including regulating the
conduct of family directors acting as NDs.60 This special utility of O&M provisions in family
businesses is due to four major reasons. While many of these points would be relevant for O&M
provisions across the globe, the analysis here is based on the O&M provisions under the CA 2013
in India.

First, it is easier to establish the case of O&M against one or more family directors acting as NDs
for the family or majority shareholders than against ordinary director in general companies. In
order to establish the claim of O&M, it is mostly essential to prove that the ‘affairs of the
company’ are being conducted in a manner that is oppressive, burdensome, harsh or unfair.
Usually, if one or few directors act in an oppressive or prejudicial manner, it can be hard to
prove oppression because their act may not amount to carrying out the ‘affairs of the company
as a whole’. However, in case of family businesses, it can be easier to link the misconduct of a
‘prominent’ family director, acting as an ND, to the ‘manner in which the affairs of the entire
company’ are being conducted. 61 Hence, there is greater possibility of establishing the case of
O&M against the family directors acting as NDs in family businesses.

Second, the nature of the enquiry undertaken under the O&M provisions is contextual and fact-
based.62 Mere violation of a company law provision in itself is not sufficient to attract relief

57
J F Corkery, ‘Oppression or Unfairness by Controllers -What Can A Shareholder Do About It? An
Analysis of S 320 Of The Companies Code’ Adelaide Law Review 437, 437-439.
58
Companies Act 2013, s 241.
59
A. K. Fiadjoe, ‘The Position of the Non-Member Director and the Oppression Remedy’ (1976) 8 Rev
Ghana L 236, 238.
60
See Umakanth Varottil, ‘Un-Packing the Scope of Oppression, Prejudice and Mismanagement Under
Company Law in India’ (July 2020) NUS Law Working Paper 2020/020, 21 ; see also Marie-Andrée
Vermette, ‘Personal Liability of Directors in Oppression Cases: The Supreme Court Clarifies the
Applicable Criteria in Wilson v Alhareyeri’ (2017) Lexology <
https://www.mondaq.com/canada/shareholders/613392/personal-liability-of-directors-in-oppression-
cases-the-supreme-court-clarifies-the-applicable-criteria-in-wilson-v-alhareyeri>
61
See Australian Govt Takeover Panel, ‘Nominee Directors And Alternate Directors’ (1987) Discussion
Paper No. 7, “[320] A further limitation on the s320 remedy has also been suggested. A shareholder of the
company on the board of which the nominee directors are serving will be able to complain only if the
activities of the nominee directors amount to conducting the affairs of the company or involve acts or
omissions "by or on behalf of the company": s320(1) (a) (ii). Where the nominee directors are in control of
the company, the statutory wording would seem to be satisfied. Where, however, the nominee directors
whose conduct is objected to are in a minority or deadlock position, it may be difficult to establish that
their conduct amounts to conducting the affairs of the company or acting by or on behalf of the company.
The consequence is that the activities of nominee directors who are not in a controlling position may well
be beyond review under s320 (and also s364).”
62
Shreyas Jayasimha & Rohan Tigadi, ‘Arbitrability Of Oppression, Mismanagement And Prejudice
Claims In India: Need For Re-Think?’ (2018) 11 NUJS L.Rev. 547, 553.
 Writing Sample by Ms Priya Garg
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under the O&M sections.63 After all, not every legal violation is large or significant enough to
make it an act of oppression, unfair prejudice, harshness or unfairness. Likewise, there can be
oppression, mismanagement or unfair prejudice even if no company law provision has been
violated so long as in the context in which the conduct is carried out, the conduct seems
oppressive or prejudicial. 64 This kind of contextual and fact-based enquiry can be of significant
assistance in family companies where more than the legal documents and provisions, the
surrounding circumstances and the complete context needs to be looked at to understand
whether there exists some serious company law violation.

Third, a family director acting as an ND need not be too concerned to be held liable under the
O&M provision in India and in various other jurisdictions. After all, a single mistake is less likely
to make him so liable because for a corporate wrongdoing to amount to oppression,
mismanagement or unfair prejudice it should be a continuous wrongdoing. 65 This safeguards a
family director where such protection may be required.

Fourth, in India, the remedies available under the O&M provisions are broad and flexible. 66 The
power of the adjudicating body adjudicating the O&M claims is significant and with little
limitations.67 For instance, in India, the adjudicating body can pass or tailor almost any
reasonable and lawful relief which is necessary to ‘bring the matters to an end’. 68 The facilitating
nature of the remedy provision is especially useful for family businesses which may have
complex family equations and peculiar corporate governance issues and may thereby benefit
from the tailor made reliefs. Further, in India, even in situations where all the substantive and
procedural pre-conditions for claiming relief under the O&M provisions are not satisfied, the
adjudicating authority can grant appropriate relief to bring the matters to an end. 69

Therefore, it can be stated that the presence of the O&M provisions act as a balanced and gentle
safeguard against the possible misuse of powers by family directors as they openly act as NDs for
the family or family members. This strengthens the argument of the need as well as the legal
possibility to permit the family directors to openly act as NDs having special duties to their
nominators.

63
ibid 554; see also Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holdings Ltd.,
(1981) 3 SCC 333, p. 51; Sheth Mohanlal Ganpatram v. Sayaji Jubilee Cotton and Jute Mills Co., 1964 SCC
OnLine Guj 66 : (1964) 34 Comp Cas 830-831 (Guj).
64
ibid.
65
R.S. Mathur v H.S Mathur (1970) 1 Comp LJ 35; see also Ajay Kr. Sharma, ‘Majority Dictates and
Minority Rights: ‘Oppression and Mismanagement’ Law and Practice in India – A Primer for
International Business Lawyers’ (2020) 41(4) Kluwer Business Law Review 126, 128.
66
Ajay Kr. Sharma, ‘Majority Dictates and Minority Rights: ‘Oppression and Mismanagement’ Law and
Practice in India – A Primer for International Business Lawyers’ (2020) 41(4) Kluwer Business Law
Review 126, 129.
67
ibid.
68
Umakanth Varottil, ‘Un-Packing the Scope of Oppression, Prejudice and Mismanagement Under
Company Law in India’ (July 2020) NUS Law Working Paper 2020/020, 23-25.
69
ibid 25 “The law that courts may grant relief without a finding of oppression or, for that matter,
prejudice or mismanagement has received general acceptance.”
 Writing Sample by Ms Priya Garg
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&
JGLS | NLU-Hyderabad | GLC | IIFT | NMIMS Faculty (India)

IV. CONCLUSION

Throughout the world, the institution of ND is underanalysed (as opposed to other tools for
improving corporate governance such as that of an ID). For instance, out of the many FDs of
NDs, only duty of loyalty has been discussed at length. There is dearth of scholarly work
analysing how each of these duties ‘are’ and ‘ought’ to be effectively adapted to accommodate an
NDs role.

In India, the institution of ND is underanalysed even more, which is surprising given that Indian
companies face Type 2 agency problem and NDs have a true potential of solving various unique
corporate governance issues faced by such companies especially those which are family owned
(just how the institution of IDs plays a special role for companies facing Type 1 agency problem).

It is time that in the Indian context, we clarify the duties of NDs (especially the duty of loyalty).
It is also required that in the Indian and in the global context we compensate for the
underanalysis of the institution of NDs by delving into various other aspects of NDs’ roles and
duties. For instance, while the articles continue to debate the possible duties, especially the duty
of loyalty of NDs, I submit that this is time that we cover more practical debates as well. This
could include questions such as what should the restrictions be on the right to nominate NDs or
what should the maximum number of NDs be that should be allowed to the board and whether
there is need at all for such a cap?

Likewise, it is high time that besides entities such as JVs and group companies in which NDs
role has been recognised,70 the literature and experts begin identifying the special role that NDs
can play in family businesses; be it in India or abroad. Further, as this possibility is explored by
experts and law makers, it is equally essential to simultaneously assess and acknowledge the
tools (such as the O&M provisions) present under the company law of respective jurisdictions to
keep a check on the misuse of powers by family directors acting as NDs of family or family
members as shareholders.

So far, we have not dealt with various questions pertaining to an ND’s position. This might be
because jurisdictions such as the US, which is a pioneering jurisdiction for the corporate
governance reforms for various countries, the institution of ND is not as important. Hence, once
again, a reminder needs to be sent that we should beware of the transplant effect 71 regarding the
rules of corporate governance.

70
Yang Chik Adam, ‘Corporate Governance and Nominee Directors- What does it Mean?’ (2016) 15(2)
Malaysian Accounting Review 171, 172; Susanna Auyeung, ‘Nominee Directors: Sui Generis or Merely A
Breed of Directors?’ (2004) One-Day Symposium on Accountability, Governance and Performance in
Transition – Proceedings 34, 38-40; Bob Baxt, ‘The Expanding Scope of Personal Liability: A “Guide” for
Nominee Directors’ (2003) AMPLA Year Book 530; Olie, R. et al., ‘United or divided? Antecedents of
board cohesiveness in international joint ventures’ (2020) (1) 6 pp., Article 21123, Academy of
Management Proceedings.
71
Umakanth Varottil, ‘A Cautionary Tale of the Transplant Effect on Indian Corporate Governance’ 2009)
21(1) Nat. L. Sch. Ind. Rev. 1.