U.S. Corporate directors' obligation to balance risk-taking and profits is complex in ordinary circumstances. But the issue is even more dynamic in the context of the China-U.S. power rivalry—directly intersecting with national security, the re-evaluation of corporate purpose, and enhanced oversight obligations particularly for mission critical corporate functions. This Article addresses the need for corporate directors to consider national security a "mission critical" issue under the expanded Caremark doctrine developed over the last several years in Delaware courts. Given the importance of large and strategic corporations to the pillars of hegemonic power, the national security corporate governance interface will constitute an increasingly significant issue going forward. The Article opines that the emerging China-U.S. dynamic potentially militates in favor of finding national security as a core critical mission for two reasons. First, mission critical can be understood as conduct that raises the specter of enforcement, fines, and penalties; endangering U.S. security clearly risks Federal prosecution to trigger mission critical status. Two, the trend towards embracing enhanced-shareholder value governance and ESG similarly militates in favor of finding national security as a "mission critical" function as both the long-term profitability of the corporation as well as U.S. notions of "rights and values" may be at risk should China ultimately prevail in shaping global governance. Furthermore, director oversight is now firmly entrenched as a violation of the duty of loyalty—particularly for "mission critical" functions and therefore not protected by the business judgment rule or entitled to indemnification. Accordingly, Caremark oversight liability grounded on the failure of the board to monitor risks to U.S. national security conceptualized as mission critical may significantly impact corporate decision-making and the China-U.S. rivalry.
Tuesday, June 25, 2024