Step-in rights, in the context of a project finance, are contractual mechanisms through which lenders, upon certain events pre-agreed, may intervene in a project company that they are financing to perform certain actions, to either cure a specific breach or recover the project. Lenders’ step-in can be performed in several manners, including, without limitation, by taking ownership of company’s shares or control of company’s governance bodies, or novation of the project’s contracts. Measures taken by lenders while exercising their step-in rights are likely to affect not only the project company but also third parties involved in the project, as users and company’s employees. Assuming that a step-in occurs, one question that needs to be asked is whether lenders are liable for events occurred before or during the step-in period. Per the English Law, with some exceptions, a clause that exempt a party from liabilities may be effective and an English court may enforce it based on to the principle of freedom of contract. On the other hand, under civil law countries, exemption of liabilities is a sensible matter and a court will unlikely enforce it if verify a causal link between the party whose liabilities was limited and the relevant damage. Due to the fact that lenders’ step-in and liabilities thereof are topics little explored by academics and legislators, the study in reference provides an analysis on how the English Law regulates those, with focus on what liabilities are susceptive of exemption and on what basis and whether lenders could be deemed liable as shadow directors. To give some parameter of comparison, approaches of other jurisdictions are brought to discussion. Special attention is being given to the Brazilian case, in particular due to the Brazilian Law 13.097/2015 that modified the articles on step-in rights in the Brazilian concession and public-private partnerships laws. The new wording of those articles provide that lenders are exempted from liabilities if their step-in rights are performed exclusively within the corporate governance structure of a project company (e.g., appointing members to the board or by veto rights). Controversially, if lenders take ownership of shares or in case of project contracts novation, they would be liable. This position contradicts the theory of the liability of the shadow directors and the principle of the separation of financial ownership and control. Additionally, the recent Brazilian law presents relevant gaps on how lenders’ step-in and related exemptions would be implemented and legally enforced in practice.
{"title":"Step-In Rights Mechanisms in Project Finance Transactions and Lenders’ Liabilities – The English and Brazilian Legal Approaches","authors":"Carla Rossi","doi":"10.2139/ssrn.3144346","DOIUrl":"https://doi.org/10.2139/ssrn.3144346","url":null,"abstract":"Step-in rights, in the context of a project finance, are contractual mechanisms through which lenders, upon certain events pre-agreed, may intervene in a project company that they are financing to perform certain actions, to either cure a specific breach or recover the project. Lenders’ step-in can be performed in several manners, including, without limitation, by taking ownership of company’s shares or control of company’s governance bodies, or novation of the project’s contracts. Measures taken by lenders while exercising their step-in rights are likely to affect not only the project company but also third parties involved in the project, as users and company’s employees. Assuming that a step-in occurs, one question that needs to be asked is whether lenders are liable for events occurred before or during the step-in period. Per the English Law, with some exceptions, a clause that exempt a party from liabilities may be effective and an English court may enforce it based on to the principle of freedom of contract. On the other hand, under civil law countries, exemption of liabilities is a sensible matter and a court will unlikely enforce it if verify a causal link between the party whose liabilities was limited and the relevant damage. Due to the fact that lenders’ step-in and liabilities thereof are topics little explored by academics and legislators, the study in reference provides an analysis on how the English Law regulates those, with focus on what liabilities are susceptive of exemption and on what basis and whether lenders could be deemed liable as shadow directors. To give some parameter of comparison, approaches of other jurisdictions are brought to discussion. Special attention is being given to the Brazilian case, in particular due to the Brazilian Law 13.097/2015 that modified the articles on step-in rights in the Brazilian concession and public-private partnerships laws. The new wording of those articles provide that lenders are exempted from liabilities if their step-in rights are performed exclusively within the corporate governance structure of a project company (e.g., appointing members to the board or by veto rights). Controversially, if lenders take ownership of shares or in case of project contracts novation, they would be liable. This position contradicts the theory of the liability of the shadow directors and the principle of the separation of financial ownership and control. Additionally, the recent Brazilian law presents relevant gaps on how lenders’ step-in and related exemptions would be implemented and legally enforced in practice.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"513 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123422485","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}
This paper explores the complexities of corporate tax policy and (legal) tax avoidance by businesses. It first examines justifications for the existence of a corporate tax and shows that different theoretical conceptualizations of the corporate entity surface in the major rationales used to justify treating corporations as taxable subjects. Next, the paper discusses the problem of aggressive tax planning, including its mechanics, effects, the role of governments, and regulatory frameworks and initiatives in this area. Finally, the paper answers the question whether there is a corporate (fiduciary) duty not to engage in aggressive tax planning. It concludes that while there is normally no legal duty to this effect, there is an extra-legal obligation not to utilize aggressive tax planning techniques based on the benefit principle and corporations’ status as consumers of public goods and services. From this perspective, tax avoidance contributes to corporate free riding on publicly financed infrastructure.
{"title":"Corporate Tax Avoidance - The Problem of Aggressive Tax Planning","authors":"M. Petrin","doi":"10.2139/SSRN.3107375","DOIUrl":"https://doi.org/10.2139/SSRN.3107375","url":null,"abstract":"This paper explores the complexities of corporate tax policy and (legal) tax avoidance by businesses. It first examines justifications for the existence of a corporate tax and shows that different theoretical conceptualizations of the corporate entity surface in the major rationales used to justify treating corporations as taxable subjects. Next, the paper discusses the problem of aggressive tax planning, including its mechanics, effects, the role of governments, and regulatory frameworks and initiatives in this area. Finally, the paper answers the question whether there is a corporate (fiduciary) duty not to engage in aggressive tax planning. It concludes that while there is normally no legal duty to this effect, there is an extra-legal obligation not to utilize aggressive tax planning techniques based on the benefit principle and corporations’ status as consumers of public goods and services. From this perspective, tax avoidance contributes to corporate free riding on publicly financed infrastructure.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130424840","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}
Section 206F of the Corporations Act (2001) provides ASIC with a cheap and flexible enforcement power to disqualify for up to five years persons who have been involved in managing two or more failed companies within a seven year period. Individuals who have been disqualified under s 206F may challenge such disqualifications through the merits review process at the Administrative Appeals Tribunal (AAT), and in further limited circumstances, through the courts. This article examines the 36 AAT decisions that have determined challenges to the corporate regulator’s disqualification orders. It shows that whilst the Tribunal has set aside or varied around half of these disqualification orders (based in several cases on the consideration of fresh evidence), the Tribunal has nevertheless demonstrated a firm approach to upholding standards of responsible corporate management in those disqualification orders that it has affirmed. The article concludes by outlining potential reforms to s 206F to further enhance the effectiveness of this provision in deterring insolvent trading and ensuring responsible corporate management practices.
{"title":"Flexible Yet Firm: The Practice of the AAT and the Courts in Reviewing ASIC S 206F Management Disqualification Orders","authors":"R. Bowley","doi":"10.2139/SSRN.3250262","DOIUrl":"https://doi.org/10.2139/SSRN.3250262","url":null,"abstract":"Section 206F of the Corporations Act (2001) provides ASIC with a cheap and flexible enforcement power to disqualify for up to five years persons who have been involved in managing two or more failed companies within a seven year period. Individuals who have been disqualified under s 206F may challenge such disqualifications through the merits review process at the Administrative Appeals Tribunal (AAT), and in further limited circumstances, through the courts. This article examines the 36 AAT decisions that have determined challenges to the corporate regulator’s disqualification orders. It shows that whilst the Tribunal has set aside or varied around half of these disqualification orders (based in several cases on the consideration of fresh evidence), the Tribunal has nevertheless demonstrated a firm approach to upholding standards of responsible corporate management in those disqualification orders that it has affirmed. The article concludes by outlining potential reforms to s 206F to further enhance the effectiveness of this provision in deterring insolvent trading and ensuring responsible corporate management practices.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"12 11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125760602","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 : 2017-10-01DOI: 10.1017/9781108163965.014
W. Wan
In 1974, Singapore adopted the UK City Code of Takeovers and Mergers (City Code), even though it did not have the equivalent of the business community to the City of London. The concentrated ownership structure of Singapore listed firms differs significantly from the Berle and Means ownership model found in the UK firms, even today. This chapter gives an account of the evolution of takeover regulation and explains the reasons for the transplantation, and with certain limited exceptions, maintenance of, UK model of takeover regulation, from the perspectives of the supply side of rule production, that is, the blockholders and regulators. First, the regulatory framework has been responsive to blockholders generally by successive increasing the mandatory bid threshold progressively from 20% in 1974 to 30% in 2002 and adhering to the creeper rule (which was abolished by the UK in 1998). Together with the availability of the whitewash waiver, blockholders have more flexibility to increase their stake or to inject fresh cash/assets into the company without making a mandatory bid for the remaining shares. Second, even though concentrated shareholdings are the norm, there is a significant proportion of companies where any group of blockholders does not have statutory control (that is, more than 50%). The requirement in the Takeover Code that directors of a target company must seek shareholder approval for action that would frustrate a bona fide bid limits the potential for these blockholders to prevent bona fide bids from succeeding, in the absence of case law. Concentrated shareholding structures also explain why the SIC has not, which has been the case for UK post-Cadbury takeover, tightened the restriction on deal protections that may be entered into by target companies. Third, while investor protection rights in Singapore under company law and takeover regulation are similar to the UK, there remains an important area of difference which favour the blockholders seeking to privatise targets; blockholders are able to use their shareholding to first delist the target, an option that is not readily available in UK and Hong Kong. Finally, adopting the process of regulation in the UK model enables the Securities Industry Council (SIC) a quick and efficient process to informally and proactively enforce norms and public interests and this process of takeover regulation has deeper, substantive consequences. Recent examples will be drawn to show that SIC has used the power to intervene or adjust the legal rights of the market participants, particularly the bidder, where such rights are inconsistent with the public interests. This chapter then examines the implications of the findings on recent developments, particularly in light of the fact that Singapore stock market becomes more international in attracting foreign listings and the changes in shareholder ownership patterns.
1974年，新加坡采用了《英国城市收购与合并法典》(City Code of Takeovers and Mergers，简称City Code)，尽管新加坡没有伦敦金融城那样的商业社区。即使在今天，新加坡上市公司的集中所有权结构也与英国公司的Berle和Means所有权模式有很大不同。本章从规则产生的供给侧，即大股东和监管者的角度，阐述了收购监管的演变，并解释了英国收购监管模式移植的原因，并在某些有限的例外情况下得以维持。首先，监管框架总体上对大股东做出了回应，陆续将强制性出价门槛从1974年的20%逐步提高到2002年的30%，并遵守爬行规则(该规则于1998年被英国废除)。再加上粉饰豁免的可用性，大股东在增加股份或向公司注入新的现金/资产方面拥有更大的灵活性，而无需对剩余股份进行强制性收购。其次，尽管股权集中是常态，但仍有相当大比例的公司没有任何股东集团的法定控制权(即超过50%)。在没有判例法的情况下，《收购法》要求目标公司的董事必须寻求股东的批准才能采取可能阻碍善意收购的行动，这限制了这些大股东阻止善意收购成功的可能性。集中的股权结构也解释了为什么国家投资委员会没有收紧对目标公司可能参与的交易保护的限制，而英国收购吉百利后的情况就是如此。第三，尽管新加坡在公司法和收购监管方面的投资者保护权利与英国相似，但仍存在一个重要的差异，即有利于寻求将目标私有化的大股东;大股东可以利用所持股份首先将目标公司摘牌，这一选择在英国和香港并不容易实现。最后，采用英国模式的监管过程使证券业委员会(SIC)能够快速有效地非正式地主动执行规范和公共利益，并且这种接管监管过程具有更深层次的实质性后果。最近的例子表明，SIC利用权力干预或调整市场参与者，特别是投标人的合法权利，而这些权利与公共利益不一致。本章随后探讨了研究结果对近期发展的影响，特别是考虑到新加坡股票市场在吸引外国上市和股东所有权模式变化方面变得更加国际化。
{"title":"Legal Transplantation of UK-Style Takeover Regulation in Singapore","authors":"W. Wan","doi":"10.1017/9781108163965.014","DOIUrl":"https://doi.org/10.1017/9781108163965.014","url":null,"abstract":"In 1974, Singapore adopted the UK City Code of Takeovers and Mergers (City Code), even though it did not have the equivalent of the business community to the City of London. The concentrated ownership structure of Singapore listed firms differs significantly from the Berle and Means ownership model found in the UK firms, even today. This chapter gives an account of the evolution of takeover regulation and explains the reasons for the transplantation, and with certain limited exceptions, maintenance of, UK model of takeover regulation, from the perspectives of the supply side of rule production, that is, the blockholders and regulators. \u0000First, the regulatory framework has been responsive to blockholders generally by successive increasing the mandatory bid threshold progressively from 20% in 1974 to 30% in 2002 and adhering to the creeper rule (which was abolished by the UK in 1998). Together with the availability of the whitewash waiver, blockholders have more flexibility to increase their stake or to inject fresh cash/assets into the company without making a mandatory bid for the remaining shares. \u0000Second, even though concentrated shareholdings are the norm, there is a significant proportion of companies where any group of blockholders does not have statutory control (that is, more than 50%). The requirement in the Takeover Code that directors of a target company must seek shareholder approval for action that would frustrate a bona fide bid limits the potential for these blockholders to prevent bona fide bids from succeeding, in the absence of case law. Concentrated shareholding structures also explain why the SIC has not, which has been the case for UK post-Cadbury takeover, tightened the restriction on deal protections that may be entered into by target companies. \u0000Third, while investor protection rights in Singapore under company law and takeover regulation are similar to the UK, there remains an important area of difference which favour the blockholders seeking to privatise targets; blockholders are able to use their shareholding to first delist the target, an option that is not readily available in UK and Hong Kong. \u0000Finally, adopting the process of regulation in the UK model enables the Securities Industry Council (SIC) a quick and efficient process to informally and proactively enforce norms and public interests and this process of takeover regulation has deeper, substantive consequences. Recent examples will be drawn to show that SIC has used the power to intervene or adjust the legal rights of the market participants, particularly the bidder, where such rights are inconsistent with the public interests. \u0000This chapter then examines the implications of the findings on recent developments, particularly in light of the fact that Singapore stock market becomes more international in attracting foreign listings and the changes in shareholder ownership patterns.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115337453","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}
This paper was written as part of the policy paper series produced by the Secured Transactions Law Reform Project, which exists to consider the need for and shape of reform in this area of law in the UK, as well as to study and inform discussion about the reform of secured transactions law around the world. The paper is a working paper intended to stimulate discussion. The paper considers, in some detail, arguments relating to different registration systems and sets out for discussion two possible schemes: a notice filing scheme and a priority notice scheme. It is an attempt to articulate some of the arguments for and against these two different types of systems, and to identify further arguments relating to the shape and operation of a modern secured transactions register. It is assumed that the most modern technology would be available. Section 2 of the paper considers the rationales for registration, section 3 sets out the parameters resulting from the agreed core of a modern secured transactions law and the arguments for and against each parameter, and section 4 considers what information should be included in the register. Section 5 looks at two specific problems: identification (which arises particularly when non-corporate debtors are included) and empty filing (which arises particularly from advance filing). Section 6 compares document filing and notice filings, section 7 sets out the two schemes and section 8 concludes. The discussion, particularly in sections 5 and 7, is informed by comparative analysis of a number of notice filing systems. This analysis is included in four appendices, which account, in part, for the length of the paper.
{"title":"Secured Transactions Law Reform Project: Registration Discussion Paper","authors":"L. Gullifer","doi":"10.2139/ssrn.3148886","DOIUrl":"https://doi.org/10.2139/ssrn.3148886","url":null,"abstract":"This paper was written as part of the policy paper series produced by the Secured Transactions Law Reform Project, which exists to consider the need for and shape of reform in this area of law in the UK, as well as to study and inform discussion about the reform of secured transactions law around the world. The paper is a working paper intended to stimulate discussion. The paper considers, in some detail, arguments relating to different registration systems and sets out for discussion two possible schemes: a notice filing scheme and a priority notice scheme. It is an attempt to articulate some of the arguments for and against these two different types of systems, and to identify further arguments relating to the shape and operation of a modern secured transactions register. It is assumed that the most modern technology would be available. Section 2 of the paper considers the rationales for registration, section 3 sets out the parameters resulting from the agreed core of a modern secured transactions law and the arguments for and against each parameter, and section 4 considers what information should be included in the register. Section 5 looks at two specific problems: identification (which arises particularly when non-corporate debtors are included) and empty filing (which arises particularly from advance filing). Section 6 compares document filing and notice filings, section 7 sets out the two schemes and section 8 concludes. The discussion, particularly in sections 5 and 7, is informed by comparative analysis of a number of notice filing systems. This analysis is included in four appendices, which account, in part, for the length of the paper.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123920808","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}
There is now a large literature arguing that shareholders are better protected against abuse by corporate insiders in common-law than in civil-law countries, especially those with legal systems modeled on the French code. There is also a growing literature critiquing this view, to which we have contributed. In this paper we continue that work of criticism by questioning the idea that common law countries followed broadly similar legal trajectories. In particular, we show that corporate law developed in a fundamentally different way in Britain than in the United States, so that founders of British corporations had much more contractual freedom than their counterparts in the U.S.
{"title":"Contractual Flexibility within the Common Law: Organizing Private Companies in Britain and the United States","authors":"Ron Harris, N. Lamoreaux","doi":"10.2139/SSRN.2874780","DOIUrl":"https://doi.org/10.2139/SSRN.2874780","url":null,"abstract":"There is now a large literature arguing that shareholders are better protected against abuse by corporate insiders in common-law than in civil-law countries, especially those with legal systems modeled on the French code. There is also a growing literature critiquing this view, to which we have contributed. In this paper we continue that work of criticism by questioning the idea that common law countries followed broadly similar legal trajectories. In particular, we show that corporate law developed in a fundamentally different way in Britain than in the United States, so that founders of British corporations had much more contractual freedom than their counterparts in the U.S.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115028110","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}
Both the venerable British Westinghouse decision and the current New Flamenco case have been analyzed in terms of mitigation. Properly understood, in neither is mitigation relevant. Although in the former, the House of Lords came to the right result, the replacement of the substandard turbines with new superior ones was not to mitigate damages — the buyer would have installed the new turbines even had the Westinghouse turbines met the contractual specifications. Even if Westinghouse’s failure accelerated the replacement (which it almost certainly did not) it would have been a mistake to compensate the buyer for the cost of the new (Parsons) turbines.The New Flamenco involved the anticipatory repudiation of a time charter with two years remaining. An identical substitute charter was not “available.” The owner sold the ship before the market meltdown of 2008 for over $23 million and by 2009 its value had fallen to $7 million. The Court of Appeal held that because it avoided this loss, the owner suffered no harm. However, the damages would be the change in the value of the charter at the time of the repudiation. By selling the ship, the owner in effect allowed the new owner to put the ship to its highest and best use. Damages should reflect the fact that the new owner expected to use the ship for at least part of the remaining two years. The subsequent fall in the value of the ship had nothing to do with the damages suffered by the original owner.
{"title":"From British Westinghouse to the New Flamenco: Misunderstanding Mitigation","authors":"Victor P. Goldberg","doi":"10.2139/SSRN.2818056","DOIUrl":"https://doi.org/10.2139/SSRN.2818056","url":null,"abstract":"Both the venerable British Westinghouse decision and the current New Flamenco case have been analyzed in terms of mitigation. Properly understood, in neither is mitigation relevant. Although in the former, the House of Lords came to the right result, the replacement of the substandard turbines with new superior ones was not to mitigate damages — the buyer would have installed the new turbines even had the Westinghouse turbines met the contractual specifications. Even if Westinghouse’s failure accelerated the replacement (which it almost certainly did not) it would have been a mistake to compensate the buyer for the cost of the new (Parsons) turbines.The New Flamenco involved the anticipatory repudiation of a time charter with two years remaining. An identical substitute charter was not “available.” The owner sold the ship before the market meltdown of 2008 for over $23 million and by 2009 its value had fallen to $7 million. The Court of Appeal held that because it avoided this loss, the owner suffered no harm. However, the damages would be the change in the value of the charter at the time of the repudiation. By selling the ship, the owner in effect allowed the new owner to put the ship to its highest and best use. Damages should reflect the fact that the new owner expected to use the ship for at least part of the remaining two years. The subsequent fall in the value of the ship had nothing to do with the damages suffered by the original owner.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"192 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123018663","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}
This chapter analyses the manner in which the ADR Directive and ODR Regulation have been implemented in the UK, with a particular focus on the ombudsman sector. The chapter argues that in the UK implementation has been minimalist and that this represents a missed opportunity. The Directive is capable of laying the foundations for robust ADR, but the regulation of the sector looks deficient. As a result, there is a heightened risk that sub-optimal standards in the sector will go undetected which may in turn undermine user confidence. More work needs to be done to make the regulatory set-up a standard-bearer for the sector rather than a passive observer.
{"title":"Regulating ADR: Lessons from the UK","authors":"Richard L. Kirkham","doi":"10.2139/ssrn.2793440","DOIUrl":"https://doi.org/10.2139/ssrn.2793440","url":null,"abstract":"This chapter analyses the manner in which the ADR Directive and ODR Regulation have been implemented in the UK, with a particular focus on the ombudsman sector. The chapter argues that in the UK implementation has been minimalist and that this represents a missed opportunity. The Directive is capable of laying the foundations for robust ADR, but the regulation of the sector looks deficient. As a result, there is a heightened risk that sub-optimal standards in the sector will go undetected which may in turn undermine user confidence. More work needs to be done to make the regulatory set-up a standard-bearer for the sector rather than a passive observer.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128397614","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 : 2015-07-13DOI: 10.1017/cbo9781316529706.008
P. G. Turner
The conjunction of the equity and business activity can be a sensitive one. A business must be able to derive a sufficient margin of profit from its commercial activities to be a sustainable organisation. The allocation of power among the parties to the organisation must be stable and clear. And the organisation must be adaptable to commercial conditions that often quickly change. Flexibility and certainty are necessary. All these things can be hampered by equitable doctrines and remedies. Yet the system of judge-made equity has made extensive contributions to the nature and operation of business associations – especially limited liability companies and “common law” partnerships, as this paper shows. When misapplied, equity can hamper business activity – as can the misapplication of any law. But in the creation and working of business associations, the predominant character of equity is facilitative. Equitable doctrines and remedies have been, and are, strongly effective means of achieving desired ends through the operation of business associations.
{"title":"Equitable Doctrines in Business Associations","authors":"P. G. Turner","doi":"10.1017/cbo9781316529706.008","DOIUrl":"https://doi.org/10.1017/cbo9781316529706.008","url":null,"abstract":"The conjunction of the equity and business activity can be a sensitive one. A business must be able to derive a sufficient margin of profit from its commercial activities to be a sustainable organisation. The allocation of power among the parties to the organisation must be stable and clear. And the organisation must be adaptable to commercial conditions that often quickly change. Flexibility and certainty are necessary. All these things can be hampered by equitable doctrines and remedies. Yet the system of judge-made equity has made extensive contributions to the nature and operation of business associations – especially limited liability companies and “common law” partnerships, as this paper shows. When misapplied, equity can hamper business activity – as can the misapplication of any law. But in the creation and working of business associations, the predominant character of equity is facilitative. Equitable doctrines and remedies have been, and are, strongly effective means of achieving desired ends through the operation of business associations.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114113694","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 decision of the Supreme Court in AIB Group (UK) Plc v Mark Redler & Co confirms the approach taken by Lord Browne‐Wilkinson in Target Holdings Ltd v Redferns: where a trustee misapplies trust assets, a beneficiary is limited to a claim for equitable compensation for losses caused by the trustee's breach of duty. This seems to be a departure from traditional equitable doctrine, which held that the beneficiary could falsify the trustee's unauthorised disbursement and bring a claim for an ‘equitable debt’. This note considers the impact of the decision of the Supreme Court, and how the law regarding ‘equitable compensation’ might continue to develop.
{"title":"Remedies for Breach of Trust","authors":"P. Davies","doi":"10.1111/1468-2230.12134","DOIUrl":"https://doi.org/10.1111/1468-2230.12134","url":null,"abstract":"The decision of the Supreme Court in AIB Group (UK) Plc v Mark Redler & Co confirms the approach taken by Lord Browne‐Wilkinson in Target Holdings Ltd v Redferns: where a trustee misapplies trust assets, a beneficiary is limited to a claim for equitable compensation for losses caused by the trustee's breach of duty. This seems to be a departure from traditional equitable doctrine, which held that the beneficiary could falsify the trustee's unauthorised disbursement and bring a claim for an ‘equitable debt’. This note considers the impact of the decision of the Supreme Court, and how the law regarding ‘equitable compensation’ might continue to develop.","PeriodicalId":174628,"journal":{"name":"English Law: Business (Topic)","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124533576","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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