The independent non-executive director: Origins, regulation and persistent challenges
Author: Helena Stoop-Koornhof
Affiliations: LLB (Cum Laude) (Pretoria), LLM (Stellenbosch), PhD (Durham)
Source: Journal of Corporate and Commercial Law & Practice, Volume 9 Issue 1, 2023, p. 68 – 91
The premise that non-executive directors acting independently from management is essential to the integrity of the company board has driven much of the corporate governance agenda for decades. This is the case, despite conflicting empirical evidence of the value or contribution of independent non-executives. In addition, the exact meaning of ‘independence’ in the context of the corporate board remains opaque, and expectations regarding the role and remit of the office are far from settled. This article elaborates on some of these themes. The discussion will introduce the reader to the salient concepts and offer an overview of the most prominent discourse and recent developments with reference to approaches in the United States, the United Kingdom, the European Union and other jurisdictions. Ultimately, the paper contributes to the ongoing debate surrounding the efficacy of the independent non-executive director as a critical oversight mechanism in good corporate governance and the extent to which regulation can and should scaffold the office.