UK Company Law

[2017] 1 BCLC 453 and Dickinson v NAL Realisation (Staffordshire) Ltd [2017] EWHC 28 (Ch). In BTI (supra) Rose J in a lengthy judgment indicated that the s. 172(3) duty arose at a time when the directors ought to be contemplating the future insolvency of the company either because it was on the verge of insolvency or there was a potential long term liability that had not been provided for. Neither condition was met on the facts of the case before the court. But Rose J did indicate that the possibility of s. 423 of the Insolvency Act 1986 coming into play was much greater because the statutory language of the provision was deliberately wide. A dividend payment could be found to be a transaction at an undervalue within the meaning of s. 423 of the 1986 Act. In Dickinson (supra) the point was again made by HHJ McKenna (following BTI) that it would be difficult to engage s. 172(3) where the company was solvent, but not so difficult in the case of engaging s. 423. In this case certain property transactions and share buybacks were under the microscope and were in part successfully challenged. If this thinking becomes the norm we may be witnessing a significant development in upgrading directorial stewardship requirements in UK Company Law through these apparently obscure cases.

Path dependence theory and the complementarity argument offer effective explanations for the continuing predominance of shareholder value orientation in the UK in light of the ESV approach. As regarded, shareholder value orientation has been historically deeply embodied in the UK. The main configurations of the UK corporate governance system, including the dispersed ownership and ultimate shareholder decision rights, the one-tier board structure, the external monitoring system, the liquid market and the dynamic market activities are all determined by and complementary to the ultimate objective of shareholder value maximisation. External socio-economic institutional elements, as presented in the previous section, including the historical recognition of a corporation as a shareholder value maximisation economic entity, the role of the law in promoting trade freedom, discipline forced by the political policy to enhance competition and the market for corporate control, have all solidified the shareholder value maximisation ideology. 114 ‘The fundamental reason is that

Five key fi ndings stood out: 1) voting and dividend rights for Founders; 2) linguistic changes to accommodate US law and culture; 3) company valuation processes; 4) processes for terminating employment and/or membership; and; 5) handling confl icts over intellectual property. Similar to Dojo4Life Ltd, care is taken to empower the Founders to fulfi l their wish to be ‘ activist philanthropists ’ . Whilst AnyShare ’ s bylaws gave only 10 per cent of weighted voting rights (and dividends) to Founders, they retained a requirement for a majority in every stake- holder group to pass special resolutions. Founders, therefore, have veto powers like those created by Dojo4Life ’ s entrenched clauses.

We next turn to directors’ duties. In principle, UK company law observes the legal principle that directors must act in good faith in the interests of the company, rather than those of the shareholders alone (see Parkinson, 2003). How much leeway this gives boards is a matter of dispute. Boards are permitted to take a view based on what the Company Law Review called ‘enlightened shareholder value’, that is, striking a balance between the competing interests of the different stakeholders in order to benefit the shareholders in the long run (Company Law Review Steering Group, 1999: 37). According to this point of view, it should, for example, be legally open to the directors to pursue a policy of minimum redundancies (to gain the cooperation of the workforce) or a preferred supplier policy (to enhance the quality of supplier relations), if the ultimate objective of these policies is to advance shareholders’ interests. Section 309 of the Companies Act 1985 apparently goes further, imposing upon boards a duty to consider the interests of employees alongside those of shareholders when exercising their duty to act in the interests of the company. However, employee representatives do not have standing to enforce this ‘duty’, and unsurprisingly it has rarely been invoked in the courts. Moreover, during a takeover bid, neither section 309 nor the general law of fiduciary obligation have been interpreted as standing in the way of the principle of board ‘neutrality’, nor as diluting the specific obligations which boards have under the Takeover Code to ensure that objective financial advice is provided to shareholders on the merits to the bid, although there is clear potential for conflict between general company law and the Code’s strong endorsement of shareholder primacy (Deakin and Slinger, 1997; Davies, 2001).

This article carries out analysis of the Bangladesh Company Law, Chinese Company Law and UK Compa- ny law’s relating to powers, rights and duties of directors. It provides an overview of the Bangladesh, China and UK Companie’s directors’ power, right and role or duties with company law. It also looks at powers, rights and duties in relation to company’s directors. The article moves on to examine the consequences of the activity of directors in a company. This article contents more sub topics likes powers, rights & duties of directors in China, chairperson of the board, chairing the shareholder’s general meeting, convening and chairing board meeting, examining the management team’s implementation of board resolutions, duties of directors. The powers, rights & duties of directors in UK, the decisions which must be made by a resolution of the members, directors' deci- sions that need members' consent. The powers, rights & duties of directors in Bangladesh, restrictions on power of directors and restriction on Managing Director, If we see the powers, rights and duties of directors in compa- nies that are not same Chinese to other countries. Bangladesh, China and UK company law are provides more information about power, rights and duties of directors, here Uk and Bangladesh company law all most same but Chinese company law is more different from its.

the preceding four months by the acquirer for shares in the target company. 105 This should dispel the concern that remaining shareholders will necessarily be disadvantaged if the selling controlling shareholder’s main objective is not to obtain the best possible price. The rule contains within it a mechanism – the highest price principle - to ensure that minority shareholders receive an equitable price. In any event, it is important not to forget, in the words of Grossmann and Hart that ‘there is a real trade off between achieving a high tender price and inducing managerial efficiency, shareholders pursuit of the former leads to a (partial) sacrifice of the latter.’ 106 Indeed, it has been asserted that ‘to foster efficiency, a takeover mechanism must grant to bidders benefits that do not accrue to other shareholders on a pro-rata basis.’ 107 If the mandatory bid rule assists to lower the price payable on a transfer of corporate control, and thereby induces more takeover activity, leading to improved managerial performance, so much the better. As Hertig and McCahery have advised, one of the objectives of policy makers should be to promote policies that make takeovers less costly and thus produce more bids. 108

iii Finally, companies having their registered office in one Member State should be .able, without difficulties deriving from company law, financial law or fiscal law,· to set up in anot[r]

consideration of the allegations. Though significant overturn of the doctrine that human rights issues should be the subject of judicial scrutiny is unlikely to emanate from the courts where an individual has suffered violation, the Iraq cases have seen a judiciary generally uncertain about examining the possibility of systemic abuse. 68 This has been accentuated by the nature of judicial review and public law in general which, as I have already intimated, places the individual at the core of its practice. Access to legal scrutiny is made contingent on criminal proceedings (investigations as well as prosecutions) being exhausted and the alleged victims obtaining the resources to bring an action if such proceedings are unsuccessful or delayed unreasonably. There may be good reasons for this contingency: preference for the rights of the individual is deeply set in common law and in thicker conceptions of the rule of law as well as western notions of human rights. And if judicial review is to be more of ‘a precision instrument’, as Tom Bingham argued, then its deployment has to be restricted in the interests of good administration. 69 But the Iraq cases suggest that this practical structure is not well suited to address systemic problems, assuming that this is an important legal concern in the first place. It becomes a matter of luck whether any individual case (or cases) is able to be heard, provokes sufficient public outcry to place pressure on government to respond, and thus starts some process for uncovering any systemic issues.

‘stakeholders’. It is important to note at this point that the focus on participation increased with each successive equality duty. In the Race Equality Duty the specific duties included an ‘expectation’ that groups affected by their policies and their provisions to meet the duty will be consulted. There is a strong emphasis in the Disability Equality Duty on involvement of people with disabilities and there is an express requirement to do so in the specific duties. However the focus is on direct participation rather than collective representation. In the Gender Equality Duty the specific duties required that public authorities consult stakeholders, including trade unions, and to take into account their views in formulating gender equality objectives. These conceptual differences in the equality law provided an important opportunity for trade unions to strengthen the links between collective bargaining and equality that are considered in more detail in the following section.

a sincere willingness to be bound by all the elements of EU law in this area, the prospect of UK UPC membership will remain a remote one. At present, with the further delay caused by the German constitutional challenge, it is looking increasingly unlikely that UPC ratification will occur before Brexit takes place in March 2019. On the face of it, the seemingly endless delays, coupled with the awkwardness of the United Kingdom’s position on the UPC/ECJ, puts continuing UK participation in serious doubt. This is not just a problem for UK legal services; it could have profound overall consequences for the United Kingdom’s involvement in European patenting. Although the United Kingdom will remain an EPC member no matter what, unless it participates in the UPC system, the United Kingdom and UK judges will miss out on defining the future requirements of European patenting, since the UPC’s decisions are likely to influence the jurisprudence of the EPC and its administrative appeals system. If UK UPC participation is complicated, but legally possible, the UP is a different story. Created by an EU regulation, the UP is clearly an “EU IP right” — it cannot be considered a predominantly “international right.” Further to this, the United Kingdom has not, as yet, given any indication of whether it would be willing to seek any accommodation with the European Union about how the UP might remain valid in the United Kingdom post-Brexit. Thus, even with so much uncertainty, it seems much more likely that the United Kingdom could remain part of the UPC system than the UP. If this strange situation were to occur, from the United Kingdom’s perspective, only EPs valid in the United Kingdom could be litigated at the UPC, since the UP would apply only in the other 24 UPC signatory states. 66

Given the fact that both privately-owned land and private company-held land were affected by the Land Reform Law of 1972, it was inevitable that public company-hel[r]

Permanent repository link: http://openaccess.city.ac.uk/18550/ Link to published version: Copyright and reuse: City Research Online aims to make research outputs of City, University of L[r]

In the particular field of European Company law, such a reshaping would induce a certain number of consequences, which the present study is intending to highlight. To envisage all the legal consequences of the aforementioned secession being attempting the impossible, we will restrict our focus on chosen specific points, in relation with the right of establishment, and obviously from the sole EU law perspective. Namely, only the incorporation (II) and the recognition processes (III), as well as the freedom of movement of UK (and especially England)/other Member States companies (IV), be- cause of their great practical importance, will be scrutinized below.

Baltzer et al. (2008) show it is easy to see that the law of one price is in fact an implication of the above definition. If all agents face the same rules, have equal access and are treated equally, any price difference between two identical assets will be immediately arbitraged away. Still, there are cases where the law of one price is not directly applicable. For instance, an asset may not be allowed to be listed on another region‟s exchange, which according to our definition would constitute an obstacle to financial integration. Another example is represented by assets such as equities or corporate bonds. These securities are characterized by different cash flows and very heterogeneous sources of risk, and as such their prices are not directly comparable. Therefore, alternative measures based on stocks and flows of assets (quantity-based measures) as well as those investigating the impact of common shocks on prices (news-based measures) may usefully complement measures relying on price comparisons (price-based measures). All the approaches to the financial integration measurement are described in detail in the fifth section of this paper.

Other newpapers: Daily Telegraph, Sunday Telegraph, Guardian, Observer National broadsheet UK newspapers usually publish company news in their business sections. This information will usually cover only large domestic or international companies. Articles may also mention important players within their own industries. The Financial Times and Wall Street Journal Europe have a specific focus on business news, and they are the key sources. In addition, the Independent, Daily Telegraph, Sunday Telegraph, Guardian and Observer also carry a significant amount of company news.

with the benefit of hindsight, it is fair to say that this objective has been achieved—a powerful workhorse for the 21st century has been delivered. Nonetheless, the perfect vision afforded by hindsight will always admit some quibbles. Some stakeholders con- sider that the Act did not go far enough, particularly having regard to the flawed realiza- tion of the concept of ‘enlightened shareholder value’. Some discordant notes are to be expected from mammoth legislation of this kind which is highly technical in content. We must be realistic about what we can expect from legislation, particularly legislation which is designed to regulate the corporate form. In a common law country, codifica- tion in a real sense is not achievable; we should not expect an exhaustive code of the type beloved of our common law neighbours. The wheels of commerce do not stop turning nor should our legislation. There are already a raft of amending provisions and a labyrinth of statutory instruments to contend with. The durability of the Companies Act 2006 remains to be seen. Bearing in mind that no legislation is set in stone; the best we can hope for is that UK companies legislation will continue to be both reactive and responsive.

5\ Department of Trade and Industry, Draft Regulations on the Operating and Financial Review and Directors' Report: A consultative document (DTllPub 7294/3' k/03/041NP May 2004). 52 Alth[r]

Following the onset of liberalization of the economy, many branches of the Indian industry and services have come to be dominated by FDI companies. Considerable proportion of these inflows came through the acquisition route. Existing domestically-owned companies or joint ventures, including listed ones, have thus become FDI companies. It is also a reality that practically no new FDI company is getting listed on the Indian stock exchanges. FERA was mainly responsible for the stock market listing of many of the older companies. On the other hand, many FDI companies which were listed earlier have got delisted and more may follow suit in the coming years and eventually qualify to be converted as private companies. Astrazeneca is on the way out. The recent attempts to hike foreign shares by Hindustan Unilever and GlaxoSmithKline may be a step in that direction. Prominent among the delisted ones are: Philips, Cadbury (now Mondelez), Sulzer, Tekronix, Alfa Laval, Atlas Copco and Wartsila. (Table-1) It is true that there will not be any interest of Indian investors in the operations of unlisted foreign companies. But shareholders are only a subset of the stakeholders in a corporate entity. Given the growing importance of foreign companies in the Indian economy and their leading place in many branches, lack of public information on their operations will hamper the assessment of their contribution to the economy in various respects – output, productivity, profitability, product dominance, exports, net foreign exchange earnings, indigenization of production, technology transfer, transfer pricing, employment, etc. It needs to be underlined that foreign investment is not always a win-win proposition and there are both benefits and costs to the host economy.

claim arose before but was raised after 1 October 2015. Ultimately the CAT dismissed the defence claim under Art 34 that it had no jurisdiction, and more significantly the CAT rejected the defence that it was an abuse of process to raise proceedings in the CAT where High Court proceedings were pending. The multiple claimants in this action raised proceedings seeking damages in the High Court, where MasterCard raised limitation defences to the claims under the various foreign laws which it contended govern the different claims in those High Court proceedings. In light of those limitation defences, and given the overlapping jurisdiction of the CAT and High Court, the claimants raised actions in the CAT as a protective measure, although the High Court claims were more extensive in scope. Following the CRA, the CAT had full jurisdiction for competition law damages claims which is not restricted to follow-on damages actions. Here, since the CAT claim was commenced after 1 October 2015 but arose well before that date, it was governed by this transitional regime. The CAT concluded as follows:- ‘The commencement of a claim under sect 47A CA in the Tribunal as a protective measure, with the expressed intention to have that claim heard together with a pending claim in the High Court, in the circumstances here, does not even come within striking distance of an abuse. Indeed, until the question of whether the FLPA and foreign rules of limitation apply to a claim under sect 47A had been determined, I consider that it is the course which many prudent legal advisers, faced with a limitation defence in the High Court, would have followed.’ 75

The Determinants of Executive Compensation and its Effect on Company Performance in Japan and in the UK A dissertation submitted for the degree of Ph D (Econ) Faculty of Economics London School of Eco[.]