The derivative action as a corporate governance tool : a functional and focused approach

This thesis of 98,273 words is concerned with one of company law's most thorny aspects: the derivative action. The thesis has both a positive and a normative dimension. It takes a position about the role that derivative action litigation should have in the corporate governance matrix. This is the realm of the normative, the domain of what some political philosophers call 'ideal theory'. However the analysis here aims not to be merely a philosophical flight of fantasy about how things ought to be, but rather aims to provide insight into current practice and to suggest substantive viable improvements. In view of this, this analysis can be used both to understand substantial and procedural rules governing the derivative action and judicial decisions in this area, and to suggest how problems should be resolved in the future, judicially and legislatively. First, the thesis attempts a fundamental rethink of the content of the derivative action and its objectives. It attempts to clarify the nature of the action and the circumstances in which its application may be deemed propitious. The thesis then focuses on and examines the conditions that may produce a positive inducement to litigate. It expresses a view on what might be the optimal level of such litigation with a view to enhancing the potential effectiveness of the action. Crucially, it strongly links the actual viability of derivative actions to funding mechanisms, namely developing adequate means to fund derivative actions so as to make them worthwhile financially. Finally, the thesis argues that it is vital to clarify the interaction between the primary remedies available to shareholders. More specifically, the thesis calls for action on three complementary levels, namely, conceptual the adoption of a new framework in the guise of the Functional and Focused Model ('FFM') to govern derivative action litigation; strategic the employment of appropriate incentives and fee rules which advance the premises behind the FFM; and, finally, maintaining doctrinal consistency - by clarifying the interaction between the derivative action and the unfair prejudice remedy.</p

The derivative action as a corporate governance tool : a functional and focused approach

This thesis of 98,273 words is concerned with one of company law's most thorny aspects: the derivative action. The thesis has both a positive and a normative dimension. It takes a position about the role that derivative action litigation should have in the corporate governance matrix. This is the realm of the normative, the domain of what some political philosophers call 'ideal theory'. However the analysis here aims not to be merely a philosophical flight of fantasy about how things ought to be, but rather aims to provide insight into current practice and to suggest substantive viable improvements. In view of this, this analysis can be used both to understand substantial and procedural rules governing the derivative action and judicial decisions in this area, and to suggest how problems should be resolved in the future, judicially and legislatively. First, the thesis attempts a fundamental rethink of the content of the derivative action and its objectives. It attempts to clarify the nature of the action and the circumstances in which its application may be deemed propitious. The thesis then focuses on and examines the conditions that may produce a positive inducement to litigate. It expresses a view on what might be the optimal level of such litigation with a view to enhancing the potential effectiveness of the action. Crucially, it strongly links the actual viability of derivative actions to funding mechanisms, namely developing adequate means to fund derivative actions so as to make them worthwhile financially. Finally, the thesis argues that it is vital to clarify the interaction between the primary remedies available to shareholders. More specifically, the thesis calls for action on three complementary levels, namely, conceptual the adoption of a new framework in the guise of the Functional and Focused Model ('FFM') to govern derivative action litigation; strategic the employment of appropriate incentives and fee rules which advance the premises behind the FFM; and, finally, maintaining doctrinal consistency - by clarifying the interaction between the derivative action and the unfair prejudice remedy

The derivative action as a corporate governance tool : a functional and focused approach

EThOS - Electronic Theses Online ServiceGBUnited Kingdo

Fiduciary Duty under the Microscope: Stewardship and the spectrum of Pension Fund Engagement

UK pension fund trustees’ interpretations of their fiduciary duties may shape pension fund approaches to corporate stewardship and engagement envisioned by the UK Stewardship Code. Data from interviews with pension fund trustees, executives, investment intermediaries and pensions experts reveals interpretive pluralism of the concept of fiduciary duty in the area of pension funds. This article develops a model identifying the spectrum of pension fund engagement, linking interpretations of fiduciary duty to intensity and methods of engagement in practice. The findings help disambiguate the concept of ‘Fiduciary Duty’, highlighting the practical challenges of Stewardship Code application. These insights are relevant to the ongoing revisions of the Stewardship Code and policy clarifications of the nature of fiduciary duty by the UK Financial Conduct Authority. The paper encourages trustees, regulators and others to consider what role pension fund trustees should have in stewardship, which may not be directly relevant to their fiduciary duties as trustees

Comparative Corporate Law (American Casebook Series)

1st ed

Corporations: a comparative perspective

This book discusses corporate law topics from a comparative perspective. It contains cases, statutes, analysis and readings, the majority of which are from foreign jurisdictions. It also has extensive notes and questions. The focus is primarily on the U.S., U.K., major European continental civil law systems (France, Germany, Italy) and European Union law, and Japan; with references to other jurisdictions such as China, India and Brazil