In seeking to combat the abuse of limited liability, the wrongful trading provision under section 214 of the Insolvency Act 1986 has long formed part of the UK’s ex post facto creditor protection strategy. However, despite being introduced nearly forty years ago, claims for wrongful trading have been far and few, raising key questions over the provision’s potential. In light of these low numbers, this article assesses the effectiveness of section 214, by examining whether it achieves its underlying objectives. It is argued that, as the regime’s development has been riddled with a lack of clarity, judicial discretion, and inconsistency, officeholders currently face a number of difficulties. These difficulties mean there is currently insufficient incentive for officeholders to bring an action and thus section 214 is not achieving its objectives. However, the provision’s effectiveness can be improved by introducing an ex-ante measure into the ex post facto regime. Premised upon the idea that prevention is better than cure, this author proposes a new model for compulsory preappointment director education. By targeting potential troublemakers from the outset, this eliminates, or at least drastically reduces, the need to rely on section 214 in the first place. wrongful trading, limited liability, company law, insolvency, creditor protection, directors’ duties
{"title":"What Went Wrong With Wrongful Trading?","authors":"Y. Arora","doi":"10.54648/bula2022024","DOIUrl":"https://doi.org/10.54648/bula2022024","url":null,"abstract":"In seeking to combat the abuse of limited liability, the wrongful trading provision under section 214 of the Insolvency Act 1986 has long formed part of the UK’s ex post facto creditor protection strategy. However, despite being introduced nearly forty years ago, claims for wrongful trading have been far and few, raising key questions over the provision’s potential. In light of these low numbers, this article assesses the effectiveness of section 214, by examining whether it achieves its underlying objectives. It is argued that, as the regime’s development has been riddled with a lack of clarity, judicial discretion, and inconsistency, officeholders currently face a number of difficulties. These difficulties mean there is currently insufficient incentive for officeholders to bring an action and thus section 214 is not achieving its objectives. However, the provision’s effectiveness can be improved by introducing an ex-ante measure into the ex post facto regime. Premised upon the idea that prevention is better than cure, this author proposes a new model for compulsory preappointment director education. By targeting potential troublemakers from the outset, this eliminates, or at least drastically reduces, the need to rely on section 214 in the first place.\u0000wrongful trading, limited liability, company law, insolvency, creditor protection, directors’ duties","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"35 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77702954","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}
Financial markets, particularly stock markets, have long been accepted as a key source of wealth generation and preservation. The potential for astronomical financial gain has tempted more sophisticated investors to make numerous irrational, speculative and risky investment decisions. The most notable of which is engaging in insider trading. While insider trading is more prevalent in economically advanced markets such as in the United States, Canada, England and Asia, the need for stringent regulation is not lost on lawmakers in the Commonwealth Caribbean. This article therefore seeks to examine the adequacy of the provisions in the Companies Acts of various Caribbean territories in curbing insider trading by analysing said provisions and their possible interpretations by reference to decided cases. stock market, investments, insider trading, Commonwealth Caribbean, stocks, equities, investors, Companies Act
{"title":"Insider Trading in the Commonwealth Caribbean: An Examination of the Adequacy of the Current Companies Act Framework","authors":"Akeem Lopez","doi":"10.54648/bula2022025","DOIUrl":"https://doi.org/10.54648/bula2022025","url":null,"abstract":"Financial markets, particularly stock markets, have long been accepted as a key source of wealth generation and preservation. The potential for astronomical financial gain has tempted more sophisticated investors to make numerous irrational, speculative and risky investment decisions. The most notable of which is engaging in insider trading. While insider trading is more prevalent in economically advanced markets such as in the United States, Canada, England and Asia, the need for stringent regulation is not lost on lawmakers in the Commonwealth Caribbean. This article therefore seeks to examine the adequacy of the provisions in the Companies Acts of various Caribbean territories in curbing insider trading by analysing said provisions and their possible interpretations by reference to decided cases.\u0000stock market, investments, insider trading, Commonwealth Caribbean, stocks, equities, investors, Companies Act","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"221 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79909921","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 : 2022-06-30DOI: 10.24886/blr.2022.06.36.2.145
Sun Woo Youn
{"title":"The Introduction of Injunctive Relief in Fair Trade Law - Focusing on Measures to Develop Current System and Effects on Individual Business Operators","authors":"Sun Woo Youn","doi":"10.24886/blr.2022.06.36.2.145","DOIUrl":"https://doi.org/10.24886/blr.2022.06.36.2.145","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"91 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83781391","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 : 2022-06-30DOI: 10.24886/blr.2022.06.36.2.113
Minkyung Lee
{"title":"Legal Status and Challenges of Proxy Voting Advice - Focusing on Regulatory Trends in the United States -","authors":"Minkyung Lee","doi":"10.24886/blr.2022.06.36.2.113","DOIUrl":"https://doi.org/10.24886/blr.2022.06.36.2.113","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"18 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80744955","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 : 2022-06-30DOI: 10.24886/blr.2022.06.36.2.57
Jeemin Song
{"title":"History of Regulations on the UK Director’s Remuneration - Distribution of Discretionary Power Among Shareholder’s Meeting and the Board of Director and Say on Pay -","authors":"Jeemin Song","doi":"10.24886/blr.2022.06.36.2.57","DOIUrl":"https://doi.org/10.24886/blr.2022.06.36.2.57","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"10 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73403640","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 : 2022-06-30DOI: 10.24886/blr.2022.06.36.2.87
Young-cheol Ahn, Soo-seok Maeng
{"title":"Review of Legal Issues Related to Big Tech Companies that are Financial Platform Operators","authors":"Young-cheol Ahn, Soo-seok Maeng","doi":"10.24886/blr.2022.06.36.2.87","DOIUrl":"https://doi.org/10.24886/blr.2022.06.36.2.87","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"76 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73280226","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 : 2022-06-30DOI: 10.24886/blr.2022.06.36.2.9
Hyun-Seong Hwang
{"title":"A Study on Termination and Compensation for Damages by the Significant Changes in Circumstances in Financial Lease Agreement","authors":"Hyun-Seong Hwang","doi":"10.24886/blr.2022.06.36.2.9","DOIUrl":"https://doi.org/10.24886/blr.2022.06.36.2.9","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"11 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85599071","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 : 2022-06-30DOI: 10.24886/blr.2022.06.36.2.33
Yu-Jin Lee
{"title":"A Study on the Preservation of the Economic Interests of Minority Stockholders against the Merger Ratio - Focusing on the Supreme Court Decision of Stock Purchase Price in the Merger of Samsung C&T and Cheil Industries -","authors":"Yu-Jin Lee","doi":"10.24886/blr.2022.06.36.2.33","DOIUrl":"https://doi.org/10.24886/blr.2022.06.36.2.33","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89340344","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 : 2022-06-30DOI: 10.24886/blr.2022.06.36.2.171
K. Kim, Gui Zhou
{"title":"Research on the Legal Issues of the Exclusion Mechanism of Private Equity Funds in China","authors":"K. Kim, Gui Zhou","doi":"10.24886/blr.2022.06.36.2.171","DOIUrl":"https://doi.org/10.24886/blr.2022.06.36.2.171","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"18 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85369901","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}
Public confidence in the fairness of markets enhances their liquidity and efficiency. Market manipulation harms the integrity of securities and derivatives markets by distorting prices, and creates an artificial appearance of market activity. Market manipulation damages the interests of retail and institutional investors alike by disrupting the smooth functioning of financial markets. This leads to a lack of trust in the fairness of the capital markets, resulting in higher risk premiums and reduced investor participation. This article provides an analytical framework (covering the United States, Switzerland, Singapore and the United Kingdom) for understanding select market manipulation behaviour with a focus on pump and dump schemes; and how to craft a preliminary defence strategy when a query is received from a markets regulator. Some tools for combating crossborder fraud and misconduct that can weaken global markets and undermine investor confidence, have been discussed. corporate governance, comparative law, shareholder primacy
{"title":"A Look into ‘Market Manipulation’ With a Focus on Pump and Dump Schemes and Initial Considerations for Responding to a Regulatory Query","authors":"Ritankar Sahu","doi":"10.54648/bula2022016","DOIUrl":"https://doi.org/10.54648/bula2022016","url":null,"abstract":"Public confidence in the fairness of markets enhances their liquidity and efficiency. Market manipulation harms the integrity of securities and derivatives markets by distorting prices, and creates an artificial appearance of market activity. Market manipulation damages the interests of retail and institutional investors alike by disrupting the smooth functioning of financial markets. This leads to a lack of trust in the fairness of the capital markets, resulting in higher risk premiums and reduced investor participation. This article provides an analytical framework (covering the United States, Switzerland, Singapore and the United Kingdom) for understanding select market manipulation behaviour with a focus on pump and dump schemes; and how to craft a preliminary defence strategy when a query is received from a markets regulator. Some tools for combating crossborder fraud and misconduct that can weaken global markets and undermine investor confidence, have been discussed.\u0000corporate governance, comparative law, shareholder primacy","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"11 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74272062","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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