622 research outputs found

    A Platonian Approach to Shareholder Derivative Claim: Rationale for Legislative Reforms in Cyprus with Lessons from England and Germany

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    One of the most powerful tools of shareholder protection is the derivative action. The thesis argues that shareholder protection in Cyprus is weak, because Cypriot law lacks effective mechanisms of shareholder protection. In particular, it argues that the common law derivative action, as it stands in Cypriot company law, is deficient in protecting the interests of Cypriot shareholders against mismanagement. Its thesis is that a legal reform, which will replace the Cypriot common law on derivative claims with a statutory remedy, is necessary in order to strengthen the protection of minority shareholders against managerial misconduct and to improve the weaknesses of corporate governance practices within Cypriot markets. This aim will be achieved through the comparative analysis of Cypriot, English and German law and the development of a new conceptual framework, upon which the reform proposals would be based. This conceptual framework is rooted on the famous Plato’s allegory of cave and provides an innovative outlook on how the law on derivative claims should be formulated, so that minority shareholders are equipped with an effective corporate governance mechanism against maladministration. Based on the allegory, the study argues that the derivative action can only amount to an effective corporate governance mechanism, if it is accessible to minority shareholders. The development of this conceptual framework provides for the introduction of a new model on derivative claims that the thesis named as Platonian Remedial Model (PRM

    An institutional analysis of UK ostensible minority shareholder protection mechanisms

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    This article argues that there is a conundrum at the heart of the company law understanding of ostensible minority protection mechanisms (the derivative claim and unfair prejudice): they are terrible at protecting those that they are thought to protect. The hurdles to access the remedies are too high, there is undue focus on the behaviour of the wronged party, costs are uncertain, and relief inadequate. This conundrum can be resolved by applying an institutional analysis and exploring the rules from the perspective of the company. Here, a number apparent weaknesses in the regime are mostly strengths for the company. The remedies are important for the company as they act as a ‘lightning rod’: all complaints by disgruntled shareholders are funnelled through these hegemonic argumentation structures, which protect the institutional arrangement of the company and, in turn, that part of the institutional environment which is company law

    The Importance of Minority Shareholders Protection in Private Companies: a Comparative Analysis of the Derivative Claim in England and Wales and the Derivative action in Nigeria and Unfair Prejudicial Petition under both Jurisdiction

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    The protection of minority shareholders within the realm of corporate governance constitutes an ongoing challenge facing modern company law. This thesis critically analyses the statutes in the protection of minority shareholders in England and Wales and Nigeria, the reason been both jurisdictions operate the common law system, and Nigeria been a former colony of the British empire despite the similarities in the different statutes in the protection of minority shareholders, the question which arises is it effective in the protection of minority shareholders, this is worthy of discuss. It is important to note that at the start of the research, the Companies and Allied Matters Act 2004 (CAMA) was in operation in Nigeria upon completion it was repealed and replaced by the CAMA 2020 which came into force on the 7th of August 2020, the relevant sections under focus are s.303 -308 under the CAMA 2004 now s.346-352 of the CAMA 2020 which highlights the procedure for commencing a derivative action and s.310-312 of the CAMA 2004 now s.353-357 of the CAMA 2020 which provides relief on the grounds of unfairly prejudicial and oppressive conduct. The CAMA 2020 has brought about key changes for instance, an improvement under s.346 of the CAMA 2020 enables an applicant to apply for leave to the courts to bring an action on behalf of a company or a subsidiary, this development is absent under the s.303 of the 2004 which allowed leave to bring an action on behalf of a company excluding its subsidiaries. This is a breakthrough in holding majority shareholders accountable for their actions. Considering this development, the relevance of the 2020 Act will come into focus in a comparative analysis of the CAMA 2004 and 2020 and the Companies Act 2006 in England and Wales in chapter 6 and 7. Alternatively, the remedy of derivative claim and unfair prejudice petition have been codified under s.260 and s.994 of the Companies Act 2006 in England and Wales (CA 2006). In analyzing both jurisdictions, the Nigerian jurisdiction differs from England and Wales in several ways. For instance, while corporate ownership in the United Kingdom consists mainly of diffused ownership between widely dispersed public shareholders in public limited companies, and privately owned shares in private limited companies, in contrast ownership in Nigeria is concentrated predominantly in individuals, families and the government. Despite the differences, both countries share similarities in the substance of their codes (the Nigeria Securities and Exchange Commission (SEC) Code 2011 and the United Kingdom 2016 Financial Reporting Code (FRC), and most importantly their reliance on efficient market-based governance mechanisms to enforce corporate governance by applying a system of disclosure of roles of non-executives to attain greater transparency between the company and its members. The core question to be addressed in this thesis is: to what extent are minority shareholders’ rights effectively protected against breach by majority shareholders? This comparative study focuses on the remedy of derivate claim/action and unfair prejudice petition in both jurisdictions in order to address this question; to demonstrate the current state of minority shareholder protection in England and Wales, and Nigeria, respectively; and to make suggestions as to the realistic achievement of greater protection, based on the findings of the comparative analysis. Adopting a doctrinal comparative analysis of these claims/actions in the respective jurisdictions, this thesis argues that the statutory provisions in England and Wales are more progressive in the protection of minority shareholders than the Nigerian legal provisions. The key reason is the relative ease of instituting both remedies in a suit, in addition with the option of an exit strategy which is usually present in a shareholders’ agreements. There is a greater chance of success for a minority shareholder to get justice which usually entails the majority purchasing his or her shares at a fair value. Whereas, in Nigeria, evidence reveals minority shareholders in most circumstances are at the mercy of the majority shareholders they are left with little or no remedy due to the literal interpretation of the majority rule in Foss v Harbottle by the courts, which set the precedent in any action in which a wrong is alleged to have been done to a company, the proper claimant is the company itself. This poor situation is further compounded by slow judicial processes and legal enforcement. The thesis recognizes that despite the Nigerian jurisdiction has specific provisions for the protection of minority shareholders under CAMA 2004 now 2020, unfortunately it is not effective in its application. As a result, it is suggested legal reform is required by amending relevant sections under the CAMA Act 2004 now 2020. Alternatively, this may entail the adoption of a partial legal transplant of key provisions under the Companies Act 2006 in England and Wales to supplement existing statutes in Nigeria to bridge the gap in the protection and enforcement of minority shareholders rights when necessary.However, it is recognized that the adoption of a partial legal transplant would not necessarily be without significant challenges as a result the advantages and disadvantages of this approach will be critically analyzed to ascertain if it is an appropriate mechanism for reforming and modernizing Nigerian corporate law, over 60 years after it attained independence. In view of the foregoing observations, the thesis nevertheless concludes with a series of recommendations for change which acts as a blueprint for future revision of corporate law statutes in Nigeria by the Houses of Assembly in order to improve minority shareholder protection in Nigeria. As such this thesis is relevant to policy holders and legislators in this field, and could contribute to amending policy, legislation and practice in the future

    Emerging trends in labour legislation and policy in the SADC region : the experiences of Botswana and Swaziland in the context of the ILO convention on freedom of association and protection of the right to organise (C.87)

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    The advent of the Southern African Development Community (SADC) brought with it a · euphoric expectation of instantaneous transformation of the sub-region into a vibrant, viable economic haven for its inhabitants. Time and reality have since reduced this euphoria to disillusionment. This state of affairs has resulted in a lot of introspection leading to vital questions about the readiness and capacity of the member states to let go of their national sovereignty as a price for more meaningful regional integration. Embedded in this is the major question of how the labour law regimes have lent themselves to change and whether they can be transformed into engines of growth that can facilitate employment within internationally acceptable environments. To attempt to answer this question, one needs to examine closely the individual domestic situations in order to determine how strong differences are in the context of international labour standards such as the very basic freedom of association and protection of the right to organise. The examination of • Botswana and Swaziland was therefore undertaken for this purpose. It has led us to the conclusion that essentially, labour legislation in these countries is common in many significant respects, unwilling to approximate to expected international standards but flexible enough for potential harmonization and transformation. This dissertation is however fairly inconclusive given the size of the SADC itself. It is therefore only a pointer, a part of the critical foundation of enquiry. It is thus only part of the preliminary survey for the roadmap that needs to be drawn on which a workable integration in the SADC could be built in the future

    University of Windsor Undergraduate Calendar 2023 Spring

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    The role of collective bargaining in business sustainability and the future of work: a South African perspective

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    Despite Africa's significant legislative and institutional framework developments, collective bargaining remains underdeveloped. As a contribution to the theoretical discourse on collective bargaining in South Africa, this thesis addresses the question: In what ways can collective bargaining support the viability of corporations while securing employment in the changing world of work? It suggests a need to look into various aspects that contribute to business sustainability within the collective bargaining landscape, which is adequately linked to job security, growth, the development of businesses, and strengthening industrial relations. The study adopted a qualitative research method to outline and combine such aspects using doctrinal, open-ended research questionnaires (based on desktop research) and comparative research methods. The thesis further contributes to an understanding that employers and employees have conflicting interests in employment relations. The thesis argues that while businesses seek to make returns, employees also seek fair wages to satisfy their human needs. The findings further show that collective bargaining plays a vital role in the sustainability of a business by negotiating in good faith and recognising and reconciling various parties' interests. Additionally, collective bargaining can be used by employers and employees to ease the movement of skills development in the changing world of work in which the partnership between humans and machines is inevitable because the growing adoption of artificial intelligence will shape the future of work. The purpose of this thesis is to give clarity as to how collective bargaining can continue to serve its purpose in the changing world of work. To this end, the thesis is valuable in that it contributes to a deeper understanding of other relevant aspects of collective bargaining in the world of work

    Co-design and modelling of security policy for cultural and behavioural aspects of security in organisations

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    Organisations have historically applied a technology-oriented approach to information security. However, organisations are increasingly acknowledging the importance of human factors in managing secure workplaces. Having an effective security culture is seen as preferable to enforced compliance with policy. Yet, the study of security culture has not been addressed consistently, either in terms of its conceptual meaning or its practical implementation. Consequently, practitioners lack guidance on cultural elements of security provisioning and on engaging employees in identifying security solutions. To address existing problems relating to security policy in respect of organisational culture, this thesis explores behavioural and cultural aspects of organisational security. We address gaps in human-centred research, focusing on the lack of work representing real-world environments and insufficient collaboration between researchers and practitioners in the study of security culture. We address these gaps through analytical work, a novel co-design methodology, and two user studies. We demonstrate that current approaches to security interventions mirror rational-agent economics, even where behavioural economics is embodied in promoting security behaviours. We present two case studies exploring the dynamics between security provisioning and organisational culture in real-world environments, focusing on distinct groups of users — employees, security managers, and IT/security support — whose interactions are understudied. Our co-design methodology surfaces the complex, interconnected nature of supporting workable security practices by engaging modellers and stakeholders in a collaborative process producing mutually understood and beneficial models. We find employees prefer local support and assurances of secure behaviour rather than guidance without local context. Trust-based relationships with support teams improve engagement. Policy is perceived through interactions with support staff and by observing everyday workplace security behaviours. We find value in engaging with decision-makers and understanding their decision-making processes. We encourage researchers and practitioners to engage in a co-design process producing multi-stakeholder views of the complexities of security in organisations

    University of Windsor Undergraduate Calendar 2023 Winter

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    The ancient practice of trial by combat was abandoned hundreds of years ago and has never been employed in America. Yet this has not stopped litigants and others from demanding trial by combat—a tactic which, while infrequent, implicates deeper questions of the history of American law. In the past several years, several high-profile demands for trial by combat have prompted media attention and caused several commentators to suggest that trial by combat may be an option for civil litigants. Most coverage and commentary only focuses on each instance of trial by combat as they arise—without attention to other examples of demands or references to trial by combat in modern American law. No more. This Article provides a systematic discussion of modern demands and references to trial by combat in American courts. From cases in the early 1800s, to Rudy Giuliani’s infamous call for trial by combat on January 6, 2021, this Article surveys demands and mentions of trial by combat, and how courts have treated such demands. This Article examines what motivates parties who seek trial by combat, noting that the popular television series, Game of Thrones likely plays a role. This Article then examines parties’ legal arguments for trial by combat, finding that they ignore relevant precedents and take a skewed view of history. Recent demands for trial by combat prompt widespread media coverage—coverage which often suggests that trial by combat may be a possibility for litigants. This Article provides historic context for this discussion and, following a systematic review of cases involving or referencing trial by combat, concludes that such demands are not only legally baseless, but that they almost invariably will harm the demanding party’s case. Still, this Article does not count out the possibility that parties may privately contract for a dispute resolution method that mirrors aspects of trial by combat—particularly if such a contract is crafted in a manner that puts both parties on an equal playing field and minimizes the chances of physical harm. While physical trial by combat between parties or champions may be a historic relic, the possibility for parties to agree to virtual trial by combat or similar dispute resolutions remains. And even though demands for trial by combat in court are likely to fail, this has not stopped litigants from making them for centuries, and parties will likely continue to do so in the decades and centuries to come
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