Do Directors Owe a Duty to Ensure Corporate Compliance with (Foreign) Law?

Four leading corporate-law jurisdictions, the US state of Delaware, England, Australia and Japan, recognise some form of ‘corporate compliance duty’ requiring company directors to facilitate corporate compliance with domestic law, the breach of which may result in personal civil liability to the company. However, they differ in how the duty responds to corporate non-compliance with foreign law. Choice-of-law analysis under private international law poses a potential obstacle because it mainly treats directors’ duties as governed by one lex societatis (typically the law of the state of incorporation, lex incorporationis) and excludes all other laws. This article proposes that the emerging private international law technique of ‘taking into consideration’ be used to facilitate better engagement with foreign law when adjudicating directors’ duties, and to increase corporate law’s permeability to foreign legal norms to better respond to demands for accountability in globalised business.