Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0022
B. Hannigan
This chapter discusses the doctrine of capital maintenance which precludes the return of capital, directly or indirectly, to the shareholders ahead of a winding up of the company. The discussion covers the purchase and redemption of a company’s own shares, reduction of capital, distributions to the members, and financial assistance by a company for the acquisition of its own shares. Purchase and redemption schemes (buy-backs) are common transactions and are discussed in detail as is the procedure for a reduction of capital. The key issue for creditors, however, is the risk posed by distributions to members and much of the chapter is devoted to discussing the distribution rules laid down in CA 2006, Part 23 and the common law. The chapter discusses the rules as to distributable profits and the liability of directors in the case of improper distributions and, in particular, their liability for dividends improperly declared.
{"title":"22. The doctrine of capital maintenance","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0022","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0022","url":null,"abstract":"This chapter discusses the doctrine of capital maintenance which precludes the return of capital, directly or indirectly, to the shareholders ahead of a winding up of the company. The discussion covers the purchase and redemption of a company’s own shares, reduction of capital, distributions to the members, and financial assistance by a company for the acquisition of its own shares. Purchase and redemption schemes (buy-backs) are common transactions and are discussed in detail as is the procedure for a reduction of capital. The key issue for creditors, however, is the risk posed by distributions to members and much of the chapter is devoted to discussing the distribution rules laid down in CA 2006, Part 23 and the common law. The chapter discusses the rules as to distributable profits and the liability of directors in the case of improper distributions and, in particular, their liability for dividends improperly declared.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"26 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80911812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/he/9780198722861.003.0008
B. Hannigan
The Companies Act 2006 (CA 2006) includes for the first time a statutory statement of directors’ general duties in Pt 10, Ch 2. This chapter explains the background to the introduction of this statutory statement and discusses the duties which have been set out. The duties remain based on and will be interpreted in accordance with the pre-existing common law while evolving in the normal manner through judicial decisions. The chapter notes that the duties are cumulative and non-exhaustive and are not owed to the shareholders individually but to the company, though in very exceptional circumstances, the courts may find a duty owed to shareholders.
{"title":"8. A statutory statement of directors’ duties","authors":"B. Hannigan","doi":"10.1093/he/9780198722861.003.0008","DOIUrl":"https://doi.org/10.1093/he/9780198722861.003.0008","url":null,"abstract":"The Companies Act 2006 (CA 2006) includes for the first time a statutory statement of directors’ general duties in Pt 10, Ch 2. This chapter explains the background to the introduction of this statutory statement and discusses the duties which have been set out. The duties remain based on and will be interpreted in accordance with the pre-existing common law while evolving in the normal manner through judicial decisions. The chapter notes that the duties are cumulative and non-exhaustive and are not owed to the shareholders individually but to the company, though in very exceptional circumstances, the courts may find a duty owed to shareholders.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"33 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78898587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/he/9780198722861.003.0007
B. Hannigan
This chapter discusses the appointment and removal of directors. Directors are responsible for the management of the company’s business, for which purpose they may exercise all the powers of the company. This chapter considers three classes of directors: the de jure director, the de facto director, and the shadow director. It identifies the characteristics of each category and the liabilities which attach in the event that someone is classed as being a director. It also considers whether fiduciary duties are owed by shadow directors. The position of corporate directors is also considered. In addition, the remuneration of directors is addressed.
{"title":"7. Board composition—appointment and removal of directors","authors":"B. Hannigan","doi":"10.1093/he/9780198722861.003.0007","DOIUrl":"https://doi.org/10.1093/he/9780198722861.003.0007","url":null,"abstract":"This chapter discusses the appointment and removal of directors. Directors are responsible for the management of the company’s business, for which purpose they may exercise all the powers of the company. This chapter considers three classes of directors: the de jure director, the de facto director, and the shadow director. It identifies the characteristics of each category and the liabilities which attach in the event that someone is classed as being a director. It also considers whether fiduciary duties are owed by shadow directors. The position of corporate directors is also considered. In addition, the remuneration of directors is addressed.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"52 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78962036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198811831.003.0003
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses ‘lifting the veil’, a phrase that refers to situations where the judiciary or the legislature have decided that the separation of corporate personality from the members must not be maintained. In this case, the veil of incorporation is said to be lifted. ‘Lifting’ is also known as ‘peeping’, ‘penetrating’, ‘piercing’, or ‘parting’. The chapter presents statutory examples of veil lifting, many of which involve corporate group structures and others involve straightforward shareholder limitation of liability issues. It also considers cases of veil lifting by the courts as well as classical veil lifting during the periods of 1897 to 1966, 1966 to 1989, and 1989 to the present. Three cases are highlighted: Adams v Cape Industries (1990), Chandler v Cape Plc (2012), and Prest v Petrodel Industries Ltd (2013) as well as important recent case development. The chapter also examines claims of tortious liability, the liability of a parent company for personal injury, and commercial tort. Finally, it looks at the costs and benefits of limited liability.
{"title":"3. Lifting the veil","authors":"A. Dignam, J. Lowry","doi":"10.1093/HE/9780198811831.003.0003","DOIUrl":"https://doi.org/10.1093/HE/9780198811831.003.0003","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses ‘lifting the veil’, a phrase that refers to situations where the judiciary or the legislature have decided that the separation of corporate personality from the members must not be maintained. In this case, the veil of incorporation is said to be lifted. ‘Lifting’ is also known as ‘peeping’, ‘penetrating’, ‘piercing’, or ‘parting’. The chapter presents statutory examples of veil lifting, many of which involve corporate group structures and others involve straightforward shareholder limitation of liability issues. It also considers cases of veil lifting by the courts as well as classical veil lifting during the periods of 1897 to 1966, 1966 to 1989, and 1989 to the present. Three cases are highlighted: Adams v Cape Industries (1990), Chandler v Cape Plc (2012), and Prest v Petrodel Industries Ltd (2013) as well as important recent case development. The chapter also examines claims of tortious liability, the liability of a parent company for personal injury, and commercial tort. Finally, it looks at the costs and benefits of limited liability.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"90 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77898795","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/he/9780198811831.003.0005
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on raising equity from the general public and its consequences for the operation of the company. It begins by outlining the basics of raising equity before turning to the consequences of operating in a public market, with emphasis on areas such as takeovers and insider dealing. It then considers the distinction between public and private companies in terms of capital raising, how such companies are regulated, and how public companies differ from listed companies. It also discusses various methods of raising money from the public, the role of the Financial Conduct Authority and the London Stock Exchange in ensuring the proper functioning of the listed market in the UK, and the regulation of listed companies as well as takeovers and other public offers.
{"title":"5. Raising capital: equity and its consequences","authors":"A. Dignam, J. Lowry","doi":"10.1093/he/9780198811831.003.0005","DOIUrl":"https://doi.org/10.1093/he/9780198811831.003.0005","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on raising equity from the general public and its consequences for the operation of the company. It begins by outlining the basics of raising equity before turning to the consequences of operating in a public market, with emphasis on areas such as takeovers and insider dealing. It then considers the distinction between public and private companies in terms of capital raising, how such companies are regulated, and how public companies differ from listed companies. It also discusses various methods of raising money from the public, the role of the Financial Conduct Authority and the London Stock Exchange in ensuring the proper functioning of the listed market in the UK, and the regulation of listed companies as well as takeovers and other public offers.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"98 6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88462011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-10-01DOI: 10.1093/HE/9780198722861.003.0003
B. Hannigan
This chapter discusses the concept of corporate legal personality. This fundamental principle of company law—that the company on incorporation becomes a separate legal entity in its own right—was established by the House of Lords in Salomon v Salomon & Co Ltd. The Salomon principle and its consequences for individual companies and for groups of companies are considered. In limited circumstances, the court may disregard or pierce or lift the corporate veil and the narrow jurisdiction to do so is explained. The chapter also considers corporate groups in the light of Salomon, particularly with regard to the liability of parent companies for the actions of subsidiary companies.
{"title":"3. Corporate personality","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0003","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0003","url":null,"abstract":"This chapter discusses the concept of corporate legal personality. This fundamental principle of company law—that the company on incorporation becomes a separate legal entity in its own right—was established by the House of Lords in Salomon v Salomon & Co Ltd. The Salomon principle and its consequences for individual companies and for groups of companies are considered. In limited circumstances, the court may disregard or pierce or lift the corporate veil and the narrow jurisdiction to do so is explained. The chapter also considers corporate groups in the light of Salomon, particularly with regard to the liability of parent companies for the actions of subsidiary companies.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"63 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80316446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-10-01DOI: 10.1093/he/9780198722861.003.0013
B. Hannigan
This chapter considers provisions of the Companies Act 2006 (CA 2006), Pt 10, Ch 4, and Ch 4A. These provisions regulate transactions with directors where there is an acute conflict of interest between the director’s personal interests and his duty to the company and so, typically, the statute requires prior shareholder approval of the transaction. The relevant provisions address: directors’ service contracts (CA 2006, ss 188–189); payments for loss of office (CA 2006, ss 215–221); for quoted companies (which must have a directors’ remuneration policy)—remuneration payments and payments for loss of office (Ch 4A); substantial property transactions (CA 2006, ss 190–196); and loans and similar financial transactions (CA 2006, ss 197–214).
{"title":"13. Specific conflicts—CA 2006, Part 10, Ch 4, and Ch 4A","authors":"B. Hannigan","doi":"10.1093/he/9780198722861.003.0013","DOIUrl":"https://doi.org/10.1093/he/9780198722861.003.0013","url":null,"abstract":"This chapter considers provisions of the Companies Act 2006 (CA 2006), Pt 10, Ch 4, and Ch 4A. These provisions regulate transactions with directors where there is an acute conflict of interest between the director’s personal interests and his duty to the company and so, typically, the statute requires prior shareholder approval of the transaction. The relevant provisions address: directors’ service contracts (CA 2006, ss 188–189); payments for loss of office (CA 2006, ss 215–221); for quoted companies (which must have a directors’ remuneration policy)—remuneration payments and payments for loss of office (Ch 4A); substantial property transactions (CA 2006, ss 190–196); and loans and similar financial transactions (CA 2006, ss 197–214).","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"20 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72677217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-10-01DOI: 10.1093/HE/9780198722861.003.0004
B. Hannigan
This chapter looks at identifying whose acts are the acts of the company for the purposes of determining the rights and liabilities of the company, given that the company is an artificial legal entity. There are several distinct rules of attribution which may assist in this context. The chapter examines corporate liability in contract, corporate liability in tort, and criminal liability of the company. The chapter addresses the debate between the traditional approach to attribution, relying on directing mind and will theory, (especially in criminal matters) and the more purposive approach being adopted in civil matters. Attribution in the case of the wrongdoing director is considered as well as the application of an illegality defence.
{"title":"4. Rules of attribution—corporate acts and liabilities","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0004","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0004","url":null,"abstract":"This chapter looks at identifying whose acts are the acts of the company for the purposes of determining the rights and liabilities of the company, given that the company is an artificial legal entity. There are several distinct rules of attribution which may assist in this context. The chapter examines corporate liability in contract, corporate liability in tort, and criminal liability of the company. The chapter addresses the debate between the traditional approach to attribution, relying on directing mind and will theory, (especially in criminal matters) and the more purposive approach being adopted in civil matters. Attribution in the case of the wrongdoing director is considered as well as the application of an illegality defence.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75955060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-10-01DOI: 10.1093/HE/9780198722861.003.0012
B. Hannigan
This chapter discusses the director’s duty to avoid a situation in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect (the no-conflict rule); and the equally inflexible rule that, without consent, a person in a fiduciary position is not entitled to profit from that position (the no-profit rule or, more accurately no secret profit rule). These key obligations are discussed in detail, exploring the extent of the strict duty to avoid a conflict and the judicial attitude to breaches of duty. The need for disclosure and authorisation is discussed. Benefits from third parties and conflicts from proposed transactions with the company are also addressed.
{"title":"12. Duty to avoid a conflict of interest","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0012","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0012","url":null,"abstract":"This chapter discusses the director’s duty to avoid a situation in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect (the no-conflict rule); and the equally inflexible rule that, without consent, a person in a fiduciary position is not entitled to profit from that position (the no-profit rule or, more accurately no secret profit rule). These key obligations are discussed in detail, exploring the extent of the strict duty to avoid a conflict and the judicial attitude to breaches of duty. The need for disclosure and authorisation is discussed. Benefits from third parties and conflicts from proposed transactions with the company are also addressed.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"56 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76578183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-09-29DOI: 10.1109/cic.2007.4745616
Douglas C. Smith
and time-depth and trophic prior to depletion, identification of the full range of benefits that healthy ecosystems provide to present and future generations and integration of the fine-scale knowledge of the maritime community with large-scale national and international fisheries management. the social capital developed through collaboration and knowledge of function in on five areas: population dynamics, energetics and physiology, dietary analyses, behaviour and ecology, and simulation modeling. The multi-disciplinary research program contains field and data analysis and laboratory
{"title":"Directors","authors":"Douglas C. Smith","doi":"10.1109/cic.2007.4745616","DOIUrl":"https://doi.org/10.1109/cic.2007.4745616","url":null,"abstract":"and time-depth and trophic prior to depletion, identification of the full range of benefits that healthy ecosystems provide to present and future generations and integration of the fine-scale knowledge of the maritime community with large-scale national and international fisheries management. the social capital developed through collaboration and knowledge of function in on five areas: population dynamics, energetics and physiology, dietary analyses, behaviour and ecology, and simulation modeling. The multi-disciplinary research program contains field and data analysis and laboratory","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88409317","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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