187 Operating enterprise as a starting point.

Instead of focusing on an underlying market contract or legal concession, the ecosystem perspective constitutes the legal corporation in the factual operation of its enterprise. By focusing on the factual circumstances in which the corporation operates (omstandigheden van het geval), the ecosystem perspective allows for the introduction of empirical scientific theories into Dutch corporate law.1 In particular, the complex systems theory developed in contemporary climate science may help to better understand the interdependence between corporate activities and their social and ecological environment.2 In complex systems theory, a system is defined as a set of distinct but interconnected elements that operates as a coherent whole to serve a common purpose.3 A system becomes complex due to its open-ended relationship with other systems, making individual systems irreducibly entwined with other individual systems in a relationship of mutual interdependence.4 By defining the corporate enterprise as a complex system, the ecosystem perspective views the corporate enterprise as emerging from the self-organization of its individual elements and as embedded in a hierarchy of larger social and ecological ecosystems.5 The ecosystem perspective therefore considers the legal corporation to be existentially constituted by its factual embeddedness in society and the natural environment.

Due to this interdependent embeddedness, the health of the larger social and ecological ecosystem is considered to impact the future existence of the corporation, and vice versa.6 Consequently, social and ecological interests become directly relevant for corporate governance, rather than needing to be mediated by market contracts or binding legal rules.7 Since the durable success of the corporation depends on the preservation of its environment, boards are expected to consider relevant social and ecological interests by virtue of their contribution to the durable success of the corporation. Instead of striving for market efficiency or institutional fairness, corporate governance becomes oriented towards increasing the resilience of its corporate enterprise in relation to unpredictable changes in its environment.8 Such resilience includes both the resilience of its own corporate ecosystem to adapt to environmental changes as well as the resilience of the larger social and ecological ecosystems to keep delivering the ecosystem services on which the corporation depends.9 By thus introducing a scientific understanding of modern corporations into corporate legal theory, the ecosystem perspective allows for the inclusion of all relevant social and ecological aspects in corporate governance, even those which cannot be completely captured or represented by human stakeholders.10 For example, social and ecological interests may be included as systemic risks, such as risks related to climate change, or as science-based social and ecological objectives, such as the planetary boundaries or the SDGs.11

All in all, a focus on the factual circumstances of the corporate enterprise enables the ecosystem perspective to add valuable insights and arguments for legal reform, in addition to the suggestions of the other perspectives. In my view, these contributions can be summarized by two general proposals for reform. The first entails a shift in normativity from compliance with external rules towards internal self-assessment.12 By focusing on the complex factual circumstances in which corporations operate, the ecosystem perspective relies more on circumstantial board decision-making than compliance with binding legal rules. On the upside, this allows for a more tailor-made approach towards the unique circumstances in which a given corporate enterprise operates. On the downside, such circumstantial decision-making invites potential arbitrariness and a lack of binding guidance for corporate boards to do what is considered best in their given circumstances. In order to overcome these challenges, I argue that a corporate conscience should be developed in corporate governance, guided by science-based objectives and practical environmental virtues.13 In my assessment, such internalized self-assessment coupled with behavioural standards fits best with the factual orientation of the ecosystem perspective.

The other general proposal for legal reform involves the introduction of scientific methods into corporate governance, supported by a spirit of collaborative learning and ecological democracy. In accordance with the literature resembling the ecosystem perspective, corporate governance should aspire towards a form of ecosystem stewardship, which seeks to serve rather than control the self-organized integrity of the corporate ecosystem in relation to larger social and ecological ecosystems.14 Such ecosystem stewardship relies heavily on the ability within the corporate ecosystem to adapt and solve issues itself. As a consequence, the task of corporate governance is to observe closely the systemic dynamics of the corporate ecosystem and to identify which interventions would best strengthen its resilience and the resilience of larger ecosystems in which it is embedded.15 Rather than centrally imposing solutions, the board is called upon to gather insights from all relevant stakeholders in the ecosystem, including scientists and members of civil society. This entails a shift from the unilateral accountability of the board as the central decision-maker criticized by others towards a collaborative process of mutual learning with the shared aim of finding workable solutions together with stakeholders.16 Stakeholders in turn acquire an equal responsibility to construct and formulate new practices based on their unique experience, instead of merely criticizing existing corporate practices from the sidelines. All in all, these methods introduce a science-based and data-driven approach to corporate governance, resembling the scientific origin of the ecosystem perspective. I will now consider these two general proposals for reform in more detail.