The Directors’ Duties of the UK Companies Act 2006

The Directors’ Duties of the Companies Act 2006— If You Can’t Take the Heat, Get Out of the Kitchen Marvin Rowe, LL.M. International Finance & Banking Law 28 May 2013 1 The Directors’ Duties of the Companies Act 2006— If You Can’t Take the Heat, Get Out of the Kitchen Marvin Rowe 28 May 2013 “This above all: to thine own [company]1 be true, and it must follow, as the night the day, thou canst not then be false to any man”2 Introduction The landmark Companies Act 2006 (the “CA 2006”) made considerable changes to numerous areas of company law3 including perhaps the most significant and controversial change, the statutory statement of the general fiduciary duties of directors set forth in Part 10, Chapter 2, ss 171-177 of the CA 2006 (the “Directors’ Duties”).4 The Directors’ Duties were an attempt to correct flaws in the old law, to make them more clear and accessible and to make them better known and understood.5 In 2007, Margaret Hodge, the former UK Minister of State for Industry and the Regions, laid out the key objectives of the Directors’ Duties, namely: ‘to create a legal environment that helps businesses to perform better; to be more sustainable in the long term, and; to have regard to a wider group of issues as they pursue success’.6 Herein I will answer the question as to whether or not the Directors’ Duties have fulfilled their objectives, with particular emphasis on the ‘duty to promote the success of the 1 I have taken the liberty to replace the word ‘self’ with the word ‘company’ in this quote by William Shakespeare. William Shakespeare, Hamlet, Act I, Scene III (Polonius speaking to Laertes) 3 The majority of the Companies Act 1985 was replaced: The new statutory code is laid out in Chapter 2 of Part 10 of CA 2006, ss 170–181. The new Directors’ Duties in Chapter 2 of the CA 2006 are followed by provisions in Chapter 3 related to directors’ declarations of interest in existing company contracts; the Chapter 4 requirement for shareholder approval of long-term service contracts (where a director is guaranteed at least 2 years employment), Chapter 4 which covers ‘substantial property transactions’, loans to directors and payments for loss of office; and finally, Chapter 5, covering the availability of the ‘inspection of directors’ service contracts’, all of which represent significant changes to those previously set forth in Part X of the Companies Act 1985. 4 The Companies Act 2006, Part 10, Chapter 2 (the “General Directors’ Duties”), s 171-177; Lady Justice Arden DBE, ‘Regulating the Conduct of Directors’ (2010) 10/1 Journal of Corporate Law Studies 1-3; Simon W Holden, ‘Pain and litigation’ (October, 2007) 26/10 International Financial Law Review 47; Samantha Fettiplace and Rebecca Addis, ‘Evaluation of the Companies Act 2006, Volume One’ (2010) A report prepared for the Department for Business, Innovation and Skills 17; Stuart Weinstein and Charles Wild, ‘Smith & Keenan's Company Law’ (DRAFT: 16th edn., Pearson, to be published 2013) Chapter 19: ‘Directors and Management, Generally’ 5 Modernising Company Law (“MCL”) (Cm 6456, 2005 DTI); Andrew Keay, ‘The Duty to Promote the Success of the Company: Is it Fit for Purpose?’ (August 20, 2010) University of Leeds School of Law, Centre for Business Law and Practice Working Paper 10; Brenda Hannigan, Company Law (3rd edn., Oxford University Press, 2009) 153, 157, 169; Arden (n 4) 4, 8; Stuart Borrie and Anne Stojanovic, ‘The United Kingdom’s Corporate Law Overhaul: The Companies Act 2006’ (2008) 16/1 The Corporate Governance Advisor 29 6 Margaret Hodge, ‘Companies Act 2006: Intention, Interpretation, Implementation’ (BERR, 27 February 2007) http://webarchive.nationalarchives.gov.uk/+/http://www.berr.gov.uk/aboutus/ministerialteam/Speeches/page38106.html> accessed 19 May 2013 2 2 company’ in light of post 2006 director duties cases, while briefly touching on the UK in comparison to that of the US7 of and secondary legislation enacted in support of CA 2006. The Directors’ Duties—A Brief Summary The duty to promote the success of the company is the backbone of the Directors’ Duties and the focus of this paper but, before we explore the ‘success duty’, we will briefly summarize the other six Directors’ Duties.8 The duty to act within powers (s 171) requires that directors ‘act in accordance with the company’s constitution’, and ‘only exercise powers for the purposes for which they are conferred’, which is to say, in simple terms, that directors are required to advance the objectives of the company, not their own agenda9.10 The duty to exercise independent judgment (s 173) requires that a director make his/her own independent decisions, but it does not prohibit him/her from entering into an agreement restraining his/her will nor does it keep him/her from delegating his/her powers as per the company’s charter.11 The duty to exercise reasonable care and diligence (s 174)12 is based on the level of competence a director should display in carrying out his/her particular role13 in view of his/her level of knowledge, qualifications, background and experience14.15 The duty to avoid conflicts of interest (s 175), as the name implies, covers ‘likely’16 conflicts of interest and, notably, served to convert the 7 Specifically with regard to the Sarbanes-Oxley Act 2002 The General Directors’ Duties (n 4), s 172(1)(a)-(f); Arden (n 4) 6 9 In actuality company objects clauses are often drafted as broadly as possible in order to allow companies to engage in virtually any business area, such that, in practice, arguably there is no meaningful effect on what directors can and cannot do for the company under this duty. Nonetheless, CA 2006 seems to make it clear that the company’s shareholders hold the most power. 10 The General Directors’ Duties (n 4) s 171(a)(b); Tahir Ashraf, ‘Directors’ duties with a particular focus on the Companies Act 2006’ (2012) 54/2 IJLMA 127-128 11 The General Directors’ Duties (n 4), s 173(1) and (2)(a)(b); Ashraf (n 10) 168 12 This is a subjective duty which again reflects the law as developed by the courts over time. 13 Naturally, the duties of non-executive directors are less intense than those of executive directors. 14 In short, the more experienced a director, the greater the expectation of the measure of skill and care, although directors are not released from responsibility due to a lack of the base qualities a director should have. It should be noted that, since directors often make decisions simply based on information provided by others, the company is responsible for implementing a control system to ensure that such information is accurate. As such, considerations including a company’s size, complexity, location and urgency of any decision, influence the subjective nature and extent of this duty. 15 The General Directors’ Duties (n 4), s 174(1) and (2)(a)(b); Arden (n 4) 11 16 Merely the possibility of a conflict of interest in circumstances not yet contemplated is not enough to infringe on the duty to avoid conflicts of interest. Indeed, if the circumstances are not ‘likely’ to create a conflict of interest, then the duty would not be infringed. Additionally, transactions in which a director wishes to participate must not always be approved in general meeting of the shareholders, but the new duties impose two exceptions to the rule, created to enable directors to exploit 8 3 ‘general law about liability to account for secret profits’ into a duty whereas, before, directors were not prohibited from accepting a directorship with a competing business, so long as he/she does not disclose any information considered confidential or misappropriate the company’s property.17 The duty not to accept benefits from third parties (s 176)18, unlike the duty to avoid conflicts of interest, is not subject to the new exceptions allowing board approval but, like the duty to avoid conflicts, this duty is only breached when the benefit is considered ‘likely’ to create a conflict of interest.19 The secondary legislation of The Bribery Act 2010 (the “BA”) which, as the name implies, deals with bribery20, clearly took the ‘no benefits duty’ to a new level21.22 The duty to declare interest in proposed transactions or arrangements (s 177), also modeled after recent case law, requires that directors disclose the details23 of any proposed transaction they wish to have approved24, except for those where his/her interest is already known to the other directors or where it is reasonable that he/she was unaware of the otherwise reportable transaction.25 Other Secondary Legislation Impacting Directors The Corporate Manslaughter and Corporate Homicide Act 2007 (the “CMCHA”) enabled the prosecution of individuals in cases where failure(s) by a company’s senior management are found to have played a significant part in a ‘gross breach of the duty of care’ owed to its employees or the corporate opportunities that might otherwise go to waste due to the burdensome cost associated with arranging a general meeting: (1) private company directors can usually (Unless the articles state otherwise) gain approval from the board of directors and (2) public company directors can also gain approval from the board of directors if specifically enabled by the company’s constitution. 17 The General Directors’ Duties (n 4), s 175(1)-(3),(4)(a)(b), (5)(a)(b), (6)(a)(b), (7); Arden (n 4) 12-13 18 This duty does not end when a director no longer holds the office 19 The General Directors’ Duties (n 4), s 176(1)(a)(b)-(5); Arden (n 4) 13 20 The Ministry of Justice defines ‘bribery’ as “[…] giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so. So this could cover seeking to influence a decision-maker by giving some kind of extra benefit to that decision maker rather than by what can legitimately be offered […].” 21 The Bribery Act 2010 affects not only companies and those executing its functions, but also interrelates with the directors’ duty not to accept benefits from third parties; or even doing or not doing something as a director and, where bribery is concerned, guilt lies with both giver and recipient. Under the BA, bribery and ‘secret profit making’ are treated equally and directors found guilty of either can receive serious civil and criminal penalties, depending on the nature of the claim, as was seen in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 2 BCLC 501. 22 The Bribery Act 2010; ‘The Bribery Act 2010: A Quick Start Guide’ (Gov.uk, 11 February 2012) Ministry of Justice Report [available online] <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/181764/briberyact-2010-quick-start-guide.pdf> accessed 26 May 2013; Ashraf (n 10) 131; Hannigan (n 5) 248, 249 (text and footnotes), 251, 282 23 Including but not limited to the nature, extent and, of course, their interest in the transaction 24 Once approved, the company’s articles determine whether the director is allowed to contribute to the decision-making process of the transaction. Additionally, the company may incorporate additional approval requirements in its articles of incorporation. 25 The General Directors’ Duties (n 4), s 177(1)-(2)(a)(b)(i)(ii) and (3)-(6)(a)-(c)(i)(ii); Arden (n 4) 13 4 general public, resulting in death26.27 The CMCHA makes it clear that where directors are closely involved in the decision-making process, they can be prosecuted and held personally liable, regardless of their position.28 In the first CMCHA case, R v Cotswold Geotechnical29, the fine levied was a full 250% of the company’s yearly revenue30.31 On appeal, the court held that ‘[t]here could be no justifiable criticism of the sentence imposed […]’32.33 The duty to promote the success of the company The “application or exercise of social norms of reciprocity, trust and exchange for political or economic purposes”34 The duty to promote the success of the company (s 172) consists of two key considerations which define the way directors are to manage their company.35 First, they must act in a way in which they36 consider, ‘in good faith’, is most likely to promote the success of their company for the benefit of all shareholders as a whole. 37 Second, while performing this first function, directors must, where ‘relevant’ and ‘reasonably practicable’, also pay homage to several additional, intentionally nonexhaustive components of responsible business behavior, including: (a) the long-term consequences of their decisions; (b) relationships with employees; (c) nurturing relationships with customers and suppliers; (d) community and environmental factors; (e) ‘maintaining a reputation for high standards of 26 In the UK alone, more than 200 workers die on the job every year, not including driving related deaths, which would significantly inflate this number. 27 The Corporate Manslaughter and Corporate Homicide Act 2007 (“CMCH Act”); ‘Leading Health and Safety at Work: Leadership Actions for Directors and Board Members’ (2007) A Guideance Paper by The Institute of Directors and the Health and Safety Executive (HSE) 1-2; Padraig Cronin and Frances Murphy (eds), ‘Corporate Governance for Main Market and AIM Companies’ 190 (September 2012) White Paper Published by White Page Ltd in association with the London Stock Exchange 190 28 CMCH Act (n 27); Ashraf (n 10) 135 29 (Holdings) Ltd [2011] All ER (D) 100 (May) 30 Fines for breach of this act are unlimited and additionally, courts can force the company to publish the details of the conviction and the amount of its fine publicly. 31 CMCH Act (n 27); Ashraf (n 10) 135 and 139 (footnote 43) 32 Held by Lord Judge CJ, Beatson and Bean JJ in the Court of Appeal, Criminal Division 33 CMCH Act (n 27); Ashraf (n 10) 135 34 Philip Cooke, Nick Clifton and Mercedes Oleaga, ‘Social capital, firm embeddedness and regional development’ (2005) 39/8 Regional Studies 1066 35 The General Directors’ Duties (n 4), s 172(1)(a)-(f); MCL (n 5); Keay (n 5) 9 36 This duty gives regard only to what the particular director in question would think as being carried out ‘in good faith’ to ‘promote the success of the company’, despite whether or not the director’s thinking was reasonable and, for further clarification, gives no regard to what others might think in the same circumstances. 37 The General Directors’ Duties (n 4), s 172(1); MCL (n 5); Ashraf (n 10) 128; Keay (n 5) 10 5 business conduct’ and; (f) the fair and equal treatment of all company members.38 Despite these additional considerations, it should be noted that Parliament has emphasized that the success duty is, in actuality, the primary duty of section 172(1), reining supreme over these secondary matters, which are really only to be considered while carrying out the first part of the success duty.39 The narrow character of the first part of this duty merely insures that the director does what he thinks is right and, in doing so, is absolved, even when clearly in the wrong.40 The new success duty offers a pragmatic approach to ensure that directors do what they consider is best, and successfully brings the interests of the company in line with its shareholders ‘as a whole’ as well as with society and its broader objectives.41 Case Law related to the success duty Under CA 2006, legal proceedings against directors brought by shareholders on behalf of the company are now restrained by narrower derivative actions’ rules as compared to the pre-codification rules established by Foss v Harbottle42, even though Foss was not actually replaced by CA 2006, but merely covered by a fresh set of procedures on derivative claims setting forth details of how such claims are to be managed.43 This, of course, lead to the fear of exploitation by dubious shareholders via the mere threat of a derivative lawsuit.44 The following cases demonstrate how courts envisage directors reach their decisions, at least insofar as they relate to bringing legal proceedings, In Mission Capital Plc v Sinclair and another45, even though the claimants convinced the court that they were acting in good faith in bringing the action, they nonetheless failed to raise support for a derivative claim against a non-executive majority whose directorships and employment contracts had been terminated46.47 The court was not satisfied that a ‘hypothetical director’ acting in accordance with section 172 would have attempted to continue the claim.48 In Franbar Holdings Ltd v Patel49, the court also refused permission 38 The General Directors’ Duties (n 4), s 172(1)(a)-(f); MCL (n 5); Keay (n 5) 10; Hannigan (n 5) 183-185 The General Directors’ Duties (n 4), s 172(1)(a)-(f); MCL (n 5); Keay (n 5) 10; Hannigan (n 5) 183-186, 191 40 The General Directors’ Duties (n 4), s 172(1)(a)-(f); John Lowry, ‘The Duty of Loyalty of Company Directors: Bridging the Accountability Gap Through Efficient Disclosure’ (2009) 68/3 Cambridge Law Journal 614 41 The General Directors’ Duties (n 4), s 172(1)(a)-(f); Lowry (n 40) 614 42 (1843) 2 Hare 461 43 Arden (n 4) 13; Holden (n 4) 44 Holden (n 4) 45 [2008] EWHC 1339 46 Floyd J felt that a company would be more apt to simply replace those directors who made the decision to dismiss a director wrongfully, rather than going after the responsible parties. Floyd J was also not convinced Mission Capital was damanged. 47 Simon Graham, ‘Directors' duties: Current interpretation and future reforms’ (Wragge & Co, 9 March 2009) <http://www.wragge.com/published_articles_4961.asp> accessed 22 May 2013 48 Stephen F Copp, ‘Corporate Social Responsibility and the Companies Act 2006’ (2009) 29/4 Institutue of Economic Affairs 20; Graham (n 47) 49 [2008] EWHC 1534 39 6 to continue largely because they felt the claimants had other remedies available50.51 And, again, the claimants failed to convince the court not to continue the claim and, with particular regard to s 263(3)(b), the court felt that a ‘hypothetical director’, considering many issues in deciding whether to continue the claim52, concluded that the ‘hypothetical director’ would decide not to proceed.53 Similar to Franbar, the appeal case of Alexander Marshall Wishart v Castlecroft Securities54, again considered what the ‘hypothetical director’ would do and, taking into account the same considerations as Franbar, leave was granted on appeal.55 While it is clear that post-codification cases demonstrate that the Directors’ Duties are in many ways simply restatements of the old common law56, the fact is, this matters not.57 The codified restatement, if that is what it is, is still powerful in and of itself, leading to much better accessibility and a better understanding of the Directors’ Duties. These cases illustrate the court’s general reluctance to grant permission to continue derivative claims.58 This author believes this hesitancy by the courts is healthy in light of the high level of conduct expected of directors and the conceivable potential for abuse through rogue shareholder claims under the new duties. The foregoing cases lend support to the notion that the commonsense approach by the courts in interpreting the Directors’ Duties is functioning well and that, while Foss is clearly not dead, the new duties have allowed it to shed its tired skin, revealing the taut new layer underneath. Have the Stated Goals Been Met? 50 The court felt that a better route for the claimants would be an unfair prejudice petition and related shareholder action. Lowry (n 40) 622 (footnote 83) 52 Including the prospect of success; the costs; the ability to recover damages; the business disruption which would occur and; damage to their reputation if the proceedings failed 53 Copp (n 48); Graham (n 47) 54 Ltd. and Others [2010] CSIH 2 55 Copp (n 48); Graham (n 47) 56 As illustrated in Southern Counties Fresh Foods [2008] EWHC 2810, where the court compared the wording of the Directors’ Duty to the old, ‘bona fide in the interests of the company’ concluding that the end-meaning was the same, but conceding that the version of the new Directors’ Duties defined the scope of the duty in an easier to understand format. Also as illustrated in Moore Stephens v Stone & Rolls Limited (in liquidation) [2009] UKHL 39, whereby the dissenting decision by Lord Mance in the House of Lords underscored that not only is the success duty based explicitly on ‘common law rules and equitable principles’ but that it is also explicitly subject to the requirements of directors, ‘in certain circumstances, to consider or to act in creditors' interests’. 57 Graham (n 47); Andrew Keay and Hao Zhang, ‘An Analysis of Enlightened Shareholder Value in Light of Ex Post Opportunism and Incomplete Law’ (2011) 4 ECFR 461 (footnote 61) 58 Keay and Zhang (n 57) 51 7 To create a legal environment that helps businesses to perform better CA 2006 is now more in step with today’s business environment, where the number of private companies dwarfs the number public limited companies.59 The Directors’ Duties conveniently guide directors in exactly what is expected of them.60 In addition, due to the sheer volume of discussion the codification has caused, directors are almost certainly more aware of their legal duties than before, thus achieving the goal of greater accessibility.61 This alone clearly results in a legal environment that helps businesses to perform better, especially smaller companies with limited legal resources. Even if company directors familiarize themselves solely with the Directors’ Duties (as opposed to all of CA 2006), I see no way it can be successfully argued that they cannot be better prepared to meet the demands of their duties than before codification. To have regard to a wider group of issues as they pursue success Due to the differing asset mix of companies today, companies should change the way they relate to the world around them, including their employees, shareholders, suppliers, customers, the community in which they operate, and their impact on the environment and community, all with regard to long-term consequences of their actions and their reputation.62 This modern concept known as the ‘enlightened shareholder’ model encourages company directors to promote these additional benefits to society.63 I agree with Murphy that it can safely be said that if directors follow s 172 (1)(a)-(f), it is very likely to have a positive effect on the wider social capital gained.64 To be more sustainable in the long term CA 2006 has played an integral part in refining and improving the UK corporate governance framework, which benefits shareholders65, directors, creditors and the broader social order in the long run.66 Moreover, rapid globalization has resulted in a tremendous increase in foreign direct investment over the last quarter century as well as an increase in international arbitration.67 Indeed, global players 59 Hannigan (n 5) 153, 157; Arden (n 4) 5-6 Deirdre Ahern, ‘Directors' duties, dry ink and the accessibility agenda’ (2012) 114 Law Quarterly Review 14 61 ibid 62 The General Directors’ Duties (n 4), s 172(1)(a)-(f); Hannigan (n 5) 153, 157; Arden (n 4) 5-6 63 Hannigan (n 5) 153, 157; Arden (n 4) 5-6 64 Lyndon Murphy, ‘The relationship between social capital and the director’s duty to promote the success of the company (2013) 55/2 International Journal of Law and Management 99 65 Although admittedly, the CA 2006 has shifted the balance of power further toward the company’s board to the disadvantage of its shareholders. 66 Arden (n 4) 4; Hannigan (n 5) 161 67 ‘ICC Statement on Controlled Foreign Corporations (“CFC”) Rules’ (International Chamber of Commerce World Business Organization, 17 September 2003) <http://www.iccwbo.org/about-icc/policy-commissions/> accessed 24 May 60 8 now often carry out management roles held by domestic players in the past. 68 As such, to be sustainable in the long term, businesses must successfully enter the international environment. I agree with Cerioni that ultimately, s 172(1) merged law with strategic management rendering it highly relevant in the global realm.69 Concluding Remarks The codification of directors’ duties has led to considerable debate as to whether it was worthwhile, and whether the success duty really changed the law at all.70 Others have argued that the Directors’ Duties are complicated ‘lawyers’ law’, out of reach of the normal layman.71 I do not buy into these arguments. The Directors’ Duties are not merely lawyers’ law but, as Lady Justice Arden argues, they clearly bring the law more within the reach of individual directors, guiding them toward higher standards, playing a meaningful role in ‘making positive improvements in corporate governance’.72 The approach taken by the UK to regulate its corporate governance is a flexible ‘comply or explain’, principle-based approach, lying in contrast to the prescriptive, rule-based approach exemplified by others, including the overly burdensome Sarbanes-Oxley Act of the US.73 At the very least, the CA 2006 punctuated the importance of the Directors’ Duties, and clarified their intent, particularly the secondary functions74, whose very intent is aimed at the enrichment of society. Moreover, even if the new Directors’ Duties are, in fact, merely a restatement of the common law75, the act of their codification has resulted in such rich public discourse that it has led, in and of itself, to a deeper awareness of the Directors’ Duties which, taken alone, should definitely increase their impact.76 Finally, directors should be up for the challenge ahead of them. Indeed, in July 2009, the Treasury 2013; Jennifer Tobin and Susan Rose-Ackerman, ‘Foreign Direct Investment and the Business Environment in Developing Countries: the Impact of Bilateral Investment Treaties’ (2003) 587/1 William Davidson Institute Working Paper Number 11 68 Eric J Pan, ‘Challenge of International Cooperation and Institutional Design in Financial Supervision: Beyond Trans governmental Networks’ (2010) 11 Chicago Journal of International Law 243, 274, 276 69 Luca Cerioni, ‘The Success of the Company in s 172(1) of the UK Companies Act 2006: Towards an “Enlightened Directors” Primacy (2008) 4/1 OLR 38 70 Arden (n 4) 14 71 Ahern (n 60) 72 Lady Justice Arden DBE, ‘Companies Act 2006 (UK): A new approach to directors’ duties’ (2007) 81 ALJ 164 73 Bryan Horrigan, ‘Directors’ Duties and Liabilities – Where Are We Now and Where Are We Going in the UK, Broader Commonwealth, and Internationally?’ (2012) 3/2 International Journal of Business and Social Science 25; Larry E Ribstein, ‘Market vs. Regulatory Responses to Corporate Fraud: A Critique of the Sarbanes-Oxley Act of 2002’ (2002) 28/1 The Journal of Corporation Fraud 61 74 Companies Act 2006, Part 10, Chapter 2, s 172(1)(a)(b) and (c) 75 As has been suggested 76 Ahern (n 60) 9 Committee again77 recommended that senior directors should have an appropriate level of qualification or ‘relevant compensatory experience’ for the post.78 Moreover, research conducted on behalf of the Law Commission revealed broad support amongst directors themselves for the codification of their obligations79.80 Surely if one is to assume the important role of director of a company, they should at least be capable of carefully reading the mere four pages81 of the CA 2006 that comprise the Directors’ Duties until a strong level of comprehension is attained and, frankly, those unwilling to do so should not be directors in the first place. Indeed, the stern phrase coined by President Harry S Truman comes to mind, offering the best advice for directors today: ‘if you can’t take the heat, get out of the kitchen’82. 77 This was recommended the first time after Northern Rock Graham (n 47) 79 Especially where smaller company directors with less access to quality legal advice are concerned 80 Arden (n 72) 81 Pages 78-81 of CA 2006 82 President Harry S Truman was widely reported as coining this phrase but he actually used it at least as early as 1942, before becoming president, as seen by this Idaho newspaper citation, The Soda Springs Sun, from July 1942: “Favorite rejoinder of Senator Harry S. Truman, when a member of his war contracts investigating committee objects to his strenuous pace: “If you don't like the heat, get out of the kitchen’.” Truman later used a different version in 1949, after becoming president, when warning his staff not to concern themselves over criticism about their appointments: “I'll stand by [you] but if you can't take the heat, get out of the kitchen.” 78 10 Marvin Rowe earned his Master of Laws (LL.M.) in International Finance & Banking Law (Hons., Distinction) from the University of Liverpool Law School. Marvin is currently the Head of Global Markets for Swiss International Finance Group, a Swiss Financial Services Firm, regulated by the Financial Services Standards Association (VQF Verein zur Qualitätssicherung von Finanzdienstleistungen) an SRO officially recognized by the Federal Financial Market Supervisory Authority (FINMA) of Switzerland. 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