Contracting Out of Fiduciary Duties

A significant implication arising out of an increasingly influential view that fiduciary duties are terms expressed or implied into voluntary undertakings is that all express or implied fiduciary duties can be excluded. This article critiques this implication by advancing the argument that this implication is doctrinally unjustified and normatively questionable through an analysis of the circumstances in which directors’ fiduciary duties have been contracted out under English law.postprin

Her Majesty's Signet

A survey of the WS Society's long relationship with the monarchy in honour of the Queen's Diamond Jubilee

Lawyering Within the Domain of Expertise

This Article uses the history of patent prosecution to assess the relationship between the practice of law and the claim of an administrative agency to possess and to employ expertise

An Insightful Study of the Oppression Remedy under South African and Canadian Corporate Law

A new perspective is provided on the South African company law through the comparative analysis of a shareholders’ remedy known as the Oppression Remedy under section 163 of the Companies Act 71 of 2008 and section 241 of the Canada Business Corporations Act. Despite the introduction of the new Companies Act 71 of 2008, the statute still remains unclear as to the rights, duties and powers of each individual within a company. In an aim to address this lack of clarity, this thesis takes a “back-to-basics” approach by discussing the fundamental principles of corporate personality and majority rule. This thesis provides a historical analysis of the English company law, its influence on the South African company law as well as the development of Canadian corporate law specifically through section 241. This study analyses the English, South African and Canadian statutes, cases and secondary materials

Majority rule and minority shareholder protection in joint stock companies in England and Iran

Principally, joint stock companies are governed by the principle of majority rule, which means that while they are formed and continue to work through participation of every shareholder, only those who hold a majority of voting shares can make decisions in companies. The principle relies on contract and is often supported by company law. In the main, it is advantageous to companies, the Judiciary and the economy. It facilitates collective action, allows management to focus on the daily running of the company business and encourages corporate financing, which is decisively important for corporations. It also saves, by curbing minority actions, the courts’ time and the public budget. In one sense, however, it can also be dangerous to the rights and interests of minority shareholders. Using the majority rule, majority shareholders may fix for themselves private benefits or adopt policies which are poor and consequently harmful to companies. Such danger could discourage likely investors from investing their capital in companies and might undermine one of the main purposes of the corporation as an institution introduced by law and business practice to solve problems encountered in raising substantial amounts of capital. This research seeks to study in the light of English and Iranian company laws difficulties deriving from application of the majority rule for minority shareholders and possible ways and mechanisms which can be used to sensibly curb the occurrence of such difficulties. To this objective, it identifies four factors which can explain how and why the rule is liable to abuse by majority shareholders and examines the mechanisms provided by company laws of England and Iran which attempt to strike a balance between the rule of majority and interests of minority shareholders

Reflexive Governance and European Company Law

The use of reflexive forms of regulation is growing within the EU, in particular as the open method of coordination ('OMC') is applied to a growing number of contexts including employment policy, social inclusion, enterprise promotion, environmental protection, energy policy, and fundamental human rights. Company law, however, seems to be an exception to this: recent activity has taken the form of 'hard law' harmonization through directives, coupled with the stimulation of regulatory competition through judgments of the European Court of Justice in relation to freedom of movement, stemming from the Centros case. There is a very limited 'company law OMC' in the form of the deliberations of the European Corporate Governance Forum, but there is little evidence here of what proponents of the OMC call 'learning from diversity'; instead, the Forum appears to envisage the elimination of country-specific practices which it refers to as 'distortions of competition'. This paper argues that the lack of a meaningful company law OMC is likely to prove a more serious long-term obstacle to capital market integration than the persistence of inter-country variations in corporate governance practices. The example of labour law shows how functional convergence and a coordinated raising of standards can be achieved by the dovetailing of the OMC with social policy directives. By contrast, the recent failure of the Takeover Directive to impose a uniform model of takeover regulation indicates the limits of top-down modes of harmonization. At the same time, the case of labour law highlights the importance of placing the OMC within a wider framework of legal support for fundamental rights, of the kind which is capable of providing a countervailing force against court-led deregulation.reflexive governance, company law, labour law, European Union