Directors' Duty of Care in Corporate Governance: Legal, Technological, and Sustainability Perspectives (9786052648896)

ACKNOWLEDGEMENTS 5 GENİŞ
ÖZET 7
TABLE OF CONTENTS 13 ABBREVIATIONS 19 ENTRANCE 21
AIM AND SCOPE OF THE THESIS 22
PROBLEMS AND KEY RESEARCH QUESTIONS 22
RESEARCH METHODS 23
STRUCTURE OF THE THESIS 23
LITERATURE REVIEW 26
CONTRIBUTION AND ORIGINALITY OF THESIS 27
FIRST CHAPTER DUTY OF CARE OF DIRECTORS IN JOINT STOCK COMPANIES
1. GENERAL OVERVIEW OF THE DUTY OF CARE OF DIRECTORS IN JOINT STOCK COMPANIES 29
1.1. Place of the Duty of Care in the Law of Obligations and the TCC 29
1.2. Legal Nature of the Duty of Care 34
1.2.1. Legal Nature of the Duty of Care Within the Scope of the Employment Agreement 34
1.2.2. Legal Nature of the Duty of Care in Joint Stock Companies 35
1.3. Fundamental Functions of the Duty of Care in the Management of Joint Stock Companies 37
1.3.1. Providing Transparency and Legal Security 37
1.3.2. Identifying the Duties of Directors 38
1.3.3. Contributing to Corporate Governance 38
1.3.4. Role of the Duty of Care in Legal Liability of Directors 39 2.UATION OF THE DUTY OF CARE AS TO PERSON AND TIME 40
2.1. General Overview 40 2.2.uation of the Duty of Care as to Person 40
2.2.1. Members of the BoD 40
2.2.2. Characteristics of the Duty of Care for Legal Person Members of BoD 41
2.2.3. Characteristics of the Duty of Care of Directors of Controlled Company 43
2.2.3.1. Characteristics in Fully Controlled Companies 43
2.2.3.2. Characteristics in Partially–Controlled Companies 45
2.2.4. Characteristics of the Duty of Care of Independent Members of BoD 47
2.2.5. Characteristics of the Duty of Care of the Chairman and Vice Chairman of the BoD 48
2.2.6. Characteristics of the Duty of Care in Joint Stock Companies with Sole Shareholder 48
2.3. Third Persons in Charge of Management 49
2.3.1. General Overview 49
2.3.2. Examination of Third Persons in Charge of Management 50
2.3.2.1. Third Parties to Whom Management or Representation Authority Has Been Transferred 50
2.3.2.2. Commercial Representatives and Commercial Agents 51
2.3.2.3. De Facto Bodies of Companies 52
2.3.2.4. Trustees 53
2.3.2.5. Liquidators 53 2.4.uation of the Duty of Care as to Time 54
2.4.1. General Overview 54
2.4.2. Beginning Period of the Duty of Care 54
2.4.3. Ending Period of the Duty of Care 55
2.5. Joint Stock Company as the Incumbent of the Duty of Care 56
3. SUBJECT OF THE DUTY OF CARE AND CRITERIA REGARDING THE DUTY OF CARE 57
3.1. General Overview 57
3.2. Acceptance of the Duty of Care 58
3.3. Duty of Care in the Process of Decision–Making 59
3.4. Duty of Care in Determining the Company’s Management Organization 62
3.5. Other Areas 63
3.6. Criteria Regarding the Duty of Care 64
3.6.1. General Overview 64
3.6.2. Subjective Criterion 64
3.6.3. Objective Criterion 65
3.6.4. Objective Criterion in Accordance With Applicable Law 65
4. LEGAL CONSEQUENCES OF THE DUTY OF CARE OF THE MEMBERS OF BoD 67
4.1. Legal Liability 67
4.2. Due Cause for Dismissal of the Members of BoD and the Directors 70
4.3. Due Cause for Terminating Joint Stock Companies 70
5. BUSINESS JUDGMENT RULE AND THE DUTY OF CARE 71
5.1. General Overview 71
5.2. Application of the Business Judgment Rule in Turkish Law 72 5.3.uation Regarding the Application of the Business Judgment Rule in Turkish Law 75
SECOND CHAPTER THE IMPACT OF DIGITALISATION OF COMPANIES TO THE DUTY OF CARE OF DIRECTORS
1. EFFECT OF AI (ARTIFICIAL INTELLIGENCE) TO THE DUTY OF CARE OF DIRECTORS 77
1.1. Definition of AI 77
1.2. Regulations Regarding AI 78
1.3. Incorporating AI into Companies 80
1.3.1. Use of AI to Support Human Decision Making 82
1.3.1.1. Assisted AI 83
1.3.1.2. Augmented AI 84
1.3.2. Hybrid Model (Amplified AI) 85
1.3.3. Use of AI to Human Beings in Company Boardrooms 86
1.3.3.1. Autonomous AI 86
1.3.3.2. Autopoietic AI 87 1.3.4.uation of AI Models in Company Boardrooms 88 1.3.5.uation of AI Models in Company Boardrooms According to TCC 88 1.4.uation of AI Systems in Terms of Principles of Corporate Governance 90
1.5. Effect of AI–based Technology to the Duty of Care and Liability of Directors 95
1.5.1. General Overview 95 1.5.2.uation of Effect of AI–based Technology Regarding the Duty of Care 96
1.5.2.1. Missed Opportunities 97
1.5.2.2. Falling Traps 98
1.5.2.3. Effect of Not Using AI–based Technologies in Companies to the Duty of Care of the Directors 98 1.5.2.3.1.uation of the Use of AI Systems in Companies in Terms of the Business Judgment Rule 100 1.5.3.uation of the Effect of AI–based Technology Regarding Legal Liability 102 1.5.4.uation of the Use of AI in Mergers in Terms of the Duty of Care of the Directors 105
2. EFFECT OF BLOCKCHAIN TO THE DUTY OF CARE OF DIRECTORS 107
2.1. Definition of Blockchain 107
2.2. Operation of Blockchain 110
2.3. Types of Blockchain Technology 111
2.4. Use of Blockchain in Companies and Company Law 111
2.4.1. Use of Blockchain in Registration to the Trade Registry 112
2.4.2. Use of Blockchain in Share Ledger Records 113
2.4.3. Keeping Financial Records in Blockchain 115
2.4.4. Use of Blockchain in AGMs 116
2.4.5. Use of Blockchain in Board Meetings 119
2.5. Contribution of Blockchain to the Corporate Governance Principles 120 2.6.uation of the Relation Between Blockchain Technology and Data Protection in Terms of the Duty of Care of Directors 121 2.7.uation of Blockchain Technology Regarding the Duty of Care of Directors 123 2.7.1.uation of Blockchain Technology in Terms of the Business Judgment Rule 124
THIRD CHAPTER THE IMPACT OF SUSTAINABILITY ISSUES TO THE DUTY OF CARE OF DIRECTORS
1. CONCEPTS OF ESG, CORPORATE SOCIAL RESPONSIBILITY(CSR) AND SUSTAINABILITY 127
1.1. General Overview 127
1.2. Concept of ESG 128
1.3. Concept of CSR 129
1.4. Concept of Sustainability and Sustainable Development 131
1.4.2. The UN Sustainable Development Goals 134
1.4.3. Sustainable Development Plans of Türkiye 136
2. THE IMPACT OF SUSTAINABLITY ISSUES TO THE DUTY OF CARE OF THE DIRECTORS 139
2.1. The Relation Between Sustainability, Sustainable Development and Company Law 139 2.2.ution of a Proposal for a Directive on Corporate Sustainability Due Diligence Within the Scope of Duty of care of the Directors 142 2.3.ution of Shell vs. Clientearth Case in Terms of Duty of Care of The Directors as a Case Study 146 2.4.uation of Article 369 of TCC In Accordance With Sustainability Issues 148 2.5.uation of the Business Judgment Rule in Terms of Sustainability Issues 151 CONCLUSION 153 REFERENCES 157