Speaker: Dr Akshaya Kamalnath (Australian National University)

Governance of companies has always involved some uncertainty and technology related challenges similarly add to the risks and challenges involved. Yet, corporate governance – both the legal and non-legal aspects – finds ways to address risks and so it will be with tech-related issues. This paper argues that effective corporate governance should now include a focus on ‘digital governance’ which I define as governance of technology and data related challenges. It will include questions of the role of AI and other technologies in making boards more effective, the governance of risks associated with the use of technology at all levels of the firm including considerations of fairness and bias when AI is used in some contexts, and data privacy and cybersecurity risks. While the paper does not call for a change in the core legal duties of directors, it proposes that soft law nudge companies to address tech-related risks. An obvious starting point is to encourage companies to appoint directors with tech expertise and constitute a tech committee where relevant. However, drawing from literature on independent directors and board diversity, the chapter notes that alterations to board composition is not a silver bullet. It must be part of a mindset where the risks posed by technology are treated seriously enough to necessitate strategies and practices beyond mere compliance with existing laws.

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