"Oscar Wilde would have regarded our modern Corporations Law not only as uneatable, but also indigestible and incomprehensible" (Sir Anthony Mason, 1992).There is no dispute; it is unlovely and unloved. Complex, ungainly, internally inconsistent, conceptually troubled; the Corporations Act 2001(CA 2001) is a mishmash of old law, ad hoc amendments, provisions pulled willy-nilly from different legal systems, statements which are not law at all, ideological posturing, and drafting styles that swing wildly from the colloquial to the technical. Despite massive efforts at law reform in the last fifteen years, and continuous tweaking, the CA 2001 remains, as Sir Anthony Mason found it, indigestible and incomprehensible.The state of the legislation, at odds with the dynamism of the Australian economy over this same period, raises some intriguing questions. Is corporations law not just "trivial", as Bernard Black provocatively suggested a few years ago, but completely irrelevant? In this case, does law not matter, not a whit? Is corporate law reform not worth the economic candle? Why is consistency and coherency in business law not valued in Australia? Is this an atavistic response of an old common law system, a deep-rooted aversion to "codification"?This paper looks at some of the consequences of this state of affairs, arguing that a better corporations law would be of benefit to Australia. The paper identifies some points of departure: a separate business corporations statute, elimination of the bifurcation of directors duties (as between the statute and the general law), substitution of a comprehensive personal property security regime for the troublesome insolvent trading provisions and reconceptualisation of the complexities of capital maintenance rules.
“奥斯卡·王尔德会认为我们的现代公司法不仅不能吃，而且难以消化和理解”(安东尼·梅森爵士，1992)。没有争议;它既不可爱，也不讨人喜欢。复杂的，笨拙的，内部不一致的，概念混乱的;《2001年公司法》(CA 2001)是旧法律、临时修正案、从不同法律体系中随意提取的条款、根本不是法律的声明、意识形态姿态以及从通俗到专业的疯狂摇摆的起草风格的大杂烩。尽管过去15年在法律改革方面做出了巨大的努力，并不断进行调整，但正如安东尼·梅森爵士(Sir Anthony Mason)所发现的那样，2001年的《CA》仍然难以消化和理解。这项立法的现状，与同期澳大利亚经济的活力相矛盾，提出了一些有趣的问题。正如伯纳德•布莱克(Bernard Black)几年前挑衅性地提出的那样，公司法不仅“微不足道”，而且完全无关紧要吗?在这种情况下，法律不重要吗，一点也不重要吗?公司法改革不值得在经济上花费精力吗?为什么澳大利亚不重视商法的一致性和连贯性?这是对旧普通法制度的返祖反应，是对“法典化”根深蒂固的厌恶吗?本文着眼于这种状况的一些后果，认为更好的公司法将有利于澳大利亚。本文确定了一些出发点:单独的商业公司法规，消除董事职责的分岔(在法规和一般法律之间)，用全面的个人财产安全制度取代麻烦的破产交易条款，以及重新定义资本维持规则的复杂性。
{"title":"Unlovely and Unloved: Corporate Law Reform's Progeny","authors":"Cally Jordan","doi":"10.2139/SSRN.1125542","DOIUrl":"https://doi.org/10.2139/SSRN.1125542","url":null,"abstract":"\"Oscar Wilde would have regarded our modern Corporations Law not only as uneatable, but also indigestible and incomprehensible\" (Sir Anthony Mason, 1992).There is no dispute; it is unlovely and unloved. Complex, ungainly, internally inconsistent, conceptually troubled; the Corporations Act 2001(CA 2001) is a mishmash of old law, ad hoc amendments, provisions pulled willy-nilly from different legal systems, statements which are not law at all, ideological posturing, and drafting styles that swing wildly from the colloquial to the technical. Despite massive efforts at law reform in the last fifteen years, and continuous tweaking, the CA 2001 remains, as Sir Anthony Mason found it, indigestible and incomprehensible.The state of the legislation, at odds with the dynamism of the Australian economy over this same period, raises some intriguing questions. Is corporations law not just \"trivial\", as Bernard Black provocatively suggested a few years ago, but completely irrelevant? In this case, does law not matter, not a whit? Is corporate law reform not worth the economic candle? Why is consistency and coherency in business law not valued in Australia? Is this an atavistic response of an old common law system, a deep-rooted aversion to \"codification\"?This paper looks at some of the consequences of this state of affairs, arguing that a better corporations law would be of benefit to Australia. The paper identifies some points of departure: a separate business corporations statute, elimination of the bifurcation of directors duties (as between the statute and the general law), substitution of a comprehensive personal property security regime for the troublesome insolvent trading provisions and reconceptualisation of the complexities of capital maintenance rules.","PeriodicalId":140847,"journal":{"name":"ERPN: Corporate Law (Other) (Sub-Topic)","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128884479","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}
The public company was the invention that allowed entrepreneurs to raise substantial amounts of capital to finance big projects. These huge amounts of money could not be mobilized without granting to entrepreneurs the privilege of limited liability. Limited liability would give them the courage to invest the money put forward by investors in projects, which sometimes entailed too high a risk of failure. The privilege of limited liability meant that the danger of failure was shifted from the entrepreneurs to the investors. Because of this shift in bearing the costs of failure, the entrepreneurs would have the incentive to abuse with the privilege of limited liability, jeopardizing the interests of the investors, be they shareholders or creditors.Should law protect the creditors of the company, or should creditors look out for themselves? If yes, how much protection should law provide? Is there any benefit from protecting this group of investors? In the European level, does the Second Company Law Directive for the protection of creditors provide the mechanisms? Is Albanian Company Law providing the basic creditors' protection mechanisms required by the Second Directive? We try to answer these questions and end our paper with few recommendations on how to better align Albanian Company Law with the Second Directive as far as the protection of creditors' interests is concerned.
{"title":"Protection of Creditors in Public Limited Companies: Second Council Directive and Albanian Company Law Compared: Is There a Need for Reform?","authors":"Elis Tarelli","doi":"10.2139/SSRN.1130311","DOIUrl":"https://doi.org/10.2139/SSRN.1130311","url":null,"abstract":"The public company was the invention that allowed entrepreneurs to raise substantial amounts of capital to finance big projects. These huge amounts of money could not be mobilized without granting to entrepreneurs the privilege of limited liability. Limited liability would give them the courage to invest the money put forward by investors in projects, which sometimes entailed too high a risk of failure. The privilege of limited liability meant that the danger of failure was shifted from the entrepreneurs to the investors. Because of this shift in bearing the costs of failure, the entrepreneurs would have the incentive to abuse with the privilege of limited liability, jeopardizing the interests of the investors, be they shareholders or creditors.Should law protect the creditors of the company, or should creditors look out for themselves? If yes, how much protection should law provide? Is there any benefit from protecting this group of investors? In the European level, does the Second Company Law Directive for the protection of creditors provide the mechanisms? Is Albanian Company Law providing the basic creditors' protection mechanisms required by the Second Directive? We try to answer these questions and end our paper with few recommendations on how to better align Albanian Company Law with the Second Directive as far as the protection of creditors' interests is concerned.","PeriodicalId":140847,"journal":{"name":"ERPN: Corporate Law (Other) (Sub-Topic)","volume":"31 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114028040","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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