Company Law

Power Point Presentation by G Tsagas on directors' duties during a UK hostile takeover bid @ UCL 8.3.12

by Georgina Tsagas

The takeover of Cadbury’s by Kraft in 2010 led to the questioning of the UK’s open market for corporate control and... more The takeover of Cadbury’s by Kraft in 2010 led to the questioning of the UK’s open market for corporate control and initiated a political enquiry into the framework regulating takeover bids. One of the concerns brought forward is that contrary to their role, target directors act more like “auctioneers” selling to the highest bidder rather than "stewards" looking after the company's long-term interests. The target board’s role as an advisor will be analysed with reference to the Code, common law, the Companies Act 2006 and the EU Takeover Directive. It will be argued that the grey areas of law reported on are the result of the conflicting aims to facilitate an open market for corporate control, whilst sustaining companies with a long-term vision. The legal solution proposed is strengthening the target board’s advisory role by providing directors with guidelines on how to construct their recommendation of a bid to shareholders.

Genel Kurul ile Yönetim Kurulu Arasinda Yetki Dağılımı

by Sinan Sarıkaya

Galatasaray Üniversitesi Hukuk Fakültesi 6.Yarıyıl Ticaret Hukuku Ödevi

ANONİM ŞİRKET(AŞ) İLE LİMİTED ŞİRKET(LTD. ŞTİ.) ARASINDAKİ FARKLAR

by Sinan Sarıkaya

Company Deregistration and Reinstatement: Part 1

by John Tarrant

(2008) 22(4) Commercial Law Quarterly 3.

Company Deregistration and Reinstatement: Part 2

by John Tarrant

(2008) 22(4) Commercial Law Quarterly 14.

Relazione sull'impresa illecita

by Chiara Gallese

The strategic management of relationships

by Marcelo Manucci

“Persuasion” and “design” are two different postures about the relationships. When we talk about “the strategic... more “Persuasion” and “design” are two different postures about the relationships. When we talk about “the strategic management of the relationships”, we try to transcend the model that the organization uses to design interventions in the community.

The Director's Duty of Skill and Care: Has the Law Commission Got it Right?

by Lee Roach

Published in the Business Law Review in 1999.

On the 10th September last year, the Law Commission published its eagerly awaited consultation paper entitled Company... more On the 10th September last year, the Law Commission published its eagerly awaited consultation paper entitled Company Directors: Regulating Conflicts of Interests and Formulating a Statement of Duties (Law Com Consultation Paper No. 153). The paper addressed two burning issues in the area of corporate governance, namely the future of Part X of the Companies Act 1985 and the desirability and content of a statutory statement of directors’ duties. This article concentrates on the latter issue, specifically the issue of whether the duty should be subjective, objective or a combination of the two.

The Paradox of the Traditional Justifications for Exclusive Shareholder Governance Protection: Expanding the Pluralist Approach

by Lee Roach

Published in the Company Lawyer in 2001.

The modern conceptualization of the corporation states that the shareholders, as sole owners and residual... more The modern conceptualization of the corporation states that the shareholders, as sole owners and residual risk-­bearers, are entitled to assume that the company will be run in their interests exclusively. In a recent article, Gavin Kelly and John Parkinson contended that the shareholders are not the only group to bear the residual risk of a company’s activities, and that other groups, most notably the employees, are entitled to governance protection. Accordingly, company law should adopt a ‘pluralist approach’ and widen the parameters of corporate legal protection. This paper contends that the traditional reasons advocated for exclusive shareholder corporate governance protection are paradoxical in that they can be utilized to include non-­‐shareholder constituents, in this case, the environment.

The Directors' Remuneration Report Regulations 2002 and the Disclosure of Executive Remuneration

by Lee Roach

Published in the Company Lawyer in 2004.

Executive remuneration is once again a hot topic. The ebb and wake of the popularity of the issue is again evident by... more Executive remuneration is once again a hot topic. The ebb and wake of the popularity of the issue is again evident by the enactment of the Directors’ Remuneration Report Regulations 2002. Welcome though they are, in several important respects, the Regulations still do not go far enough and the requirement of shareholder approval can be severely questioned.

The Legal Model of the Company and the Company Law Review

by Lee Roach

Published in the Company Lawyer in 2005.

Academic debate surrounding the scope, form and content of directors’ duties is perhaps one of the oldest issues in... more Academic debate surrounding the scope, form and content of directors’ duties is perhaps one of the oldest issues in company law/corporate governance. It is also the issue that has proved most difficult to resolve. The recent work of the Company Law Review Steering Group has sought to move the debate forward by proposing a draft statement of directors’ duties and increasing the scope of the directors’ duties of disclosure. Here the draft statement is examined together with the Steering Group’s proposed rules relating to the Operating and Financial Review.

Equitable Life and Non-Executive Directors: Clarification from the High Court?

by Lee Roach

Published in the Company Lawyer in 2005.

There can be little doubt that there is a general feeling that NEDs are being increasingly exposed to negligence... more There can be little doubt that there is a general feeling that NEDs are being increasingly exposed to negligence claims following corporate failures. The Equitable Life litigation has the potential to impose more liability on NEDs than all the previous cases put together. Should the High Court find for Equitable Life, then the problem of increasing NED liability will become much more pronounced. The High Court should take the time to state to what extent NEDs are expected to monitor the executives, and to what extent they are supposed to contribute to the running of the company. Ironically, at the time when the need for qualified NEDs has never been greater, recent events have ensured that such people are discouraged from taking up the post. Clarification of their role could go some way towards reducing their concerns. Langley J recognised that this area of the law is “developing.” It is to be hoped that when this case comes before him again, he contributes to its development, and grants NEDs some much needed clarification.

An Equitable Solution for Non-Executive Directors?

by Lee Roach

Published in the International Company and Commercial Law Review in 2006.

The seemingly never-­‐ending Equitable Life litigation has finally and inevitably collapsed amid repeated calls for... more The seemingly never-­‐ending Equitable Life litigation has finally and inevitably collapsed amid repeated calls for resignations, accusations of inflated damages claims and a general feeling that the case should never have made it to court in the first place. Understandably, much of the sympathy has fallen on Equitable's policy holders who saw £45 million of their investment dissipated in lawyer's fees. The crowing exhibited by Ernst & Young and their legal team did little to encourage us to sympathise with their claims that the combination of “ deep pockets” and joint and several liability makes auditors easy targets for inflated damages claims. The Penrose Report demonstrated in no uncertain terms that some of the directors involved undoubtedly contributed to the débâcle that this litigation concerned.

Equitable Life and Auditor Liability

by Lee Roach

Published in the International Company and Commercial Law Review in 2006.

The seemingly never-­ending Equitable Life litigation is finally over (although numerous investigations still... more The seemingly never-­ending Equitable Life litigation is finally over (although numerous investigations still continue). The case’s inevitable collapse is evidence that in the post-­Woolf era, largely pointless, ill-­conceived and ludicrously expensive cases still occur. This case garnered attention from a number of parties for numerous reasons. It grabbed the media’s attention due to the mammoth damages and costs involved. Policyholders attention concentrated on the £75 each of them loss due to the failed litigation. For company lawyers, however, the focus of the case concerned the extent of the auditors’ and directors’ liability – two issues that company law has struggled to adequately resolve for decades. In the first of a two-­‐part article, Equitable Life’s case against their auditors, Ernst & Young, will be examined.

Equitable Life and Director Liability

by Lee Roach

Published in the International Company and Commercial Law Review in 2006.

The previous article examined Equitable Life’s case against its auditor, Ernst & Young. We saw the claim was... more The previous article examined Equitable Life’s case against its auditor, Ernst & Young. We saw the claim was deeply flawed in many respects, had no reasonable prospect of success and should never have been brought in the first place. Can the same be said of the claim against the former directors? To an extent, no. We will see that there are portions of the claim that were ludicrously unrealistic (notably the quantum of damages), but the directors themselves certainly were significantly more blameworthy than the auditors. There is a feeling amongst many that certain directors played a major part in the debacle and got off lightly as a result of the litigation’s collapse. That they also had their costs paid was a further source of indignation.

The UK Stewardship Code

by Lee Roach

Published in the Journal of Corporate Law Studies in 2011.

The UK Stewardship Code is the latest in a lengthy series of reports and codes designed to foster good corporate... more The UK Stewardship Code is the latest in a lengthy series of reports and codes designed to foster good corporate governance. The Code is heralded as the first of its kind in the world. Unlike many other corporate governance codes, which are aimed at companies themselves, the Stewardship Code is aimed primarily at fund managers and institutional investors. Commentators have argued that the failure of institutional investors to adequately engage with their investee companies was a significant contributory factor in the recent financial crisis, so the UK Stewardship Code seeks to improve the quality of institutional investor engagement. This article discusses the origins and scope of the Code before going on to discuss the Code’s content. The principal argument advanced is that, while the Code is a worthwhile initiative, in its current form its impact upon investor engagement is likely to be modest at best, and that expeditious publication triumphed over comprehensiveness and rigour.

Auditor Liability: Liability Limitation Agreements

by Lee Roach

Published in the Company Lawyer in 2010.

Accountancy firms have long argued that they, like other providers of a service, be allowed to contractually limit... more Accountancy firms have long argued that they, like other providers of a service, be allowed to contractually limit their liability. In this two-­‐part article, the overall debate surrounding the limitation of auditor liability will be examined, with this second part discussing the operation of liability limitation agreements, recent notable developments and international auditor liability.

Auditor Liability: The Case for Limitation

by Lee Roach

Published in the Company Lawyer in 2010.

Accountancy firms have long argued that they, like other providers of a service, be allowed to contractually limit... more Accountancy firms have long argued that they, like other providers of a service, be allowed to contractually limit their liability. In this two-­‐part article, the overall debate surrounding the limitation of auditor liability will be examined, with this first part discussing the arguments put forward by auditors to justify the introduction of some form of limitation.

A disciplina da remuneração de administradores nos códigos de governança corporativa britânicos e brasileiros sob a ótica da teoria da representação.

by Bruno Haack-Vilar

The first part of this paper presents the agency theory, specially as it was developed by Michael Jensen and William... more The first part of this paper presents the agency theory, specially as it was developed by Michael Jensen and William Meckling based on the developments of Fischer Black, Myron Scholes and Robert Merton. The second part tries to find elements from the agency theory in the corporate governance codes of the United Kingdom and Brazil. We conclude that while the agency theory influences the UK codes very much, the Brazilian ones have moved to a perspective much closer to the stakeholder theory.

Alcance Del Derecho De Establecimiento Primario En La Unión Europea (Comentario a La STJCE De 16 De Diciembre De 2008. C-210/06, Cartesio).

by Paola Rodas