... THE COMPANY AS A JURISTIC PERSON VERSUS RESPONSIBILITY FOF THE DIRECTOR’S ACTIONS. Introduction: For a very long time a company has been treated as a corporate entity or a juristic person. In fact the concept of limited liability stems from this premise. Despite being an artificial person a company is wholly a creature of human beings, by human beings and for human beings. It solely rely on humans to conduct and transact any business. This research paper seeks to examine the concept of juristic personality, its advantages and its relationship with its owners. It delves into how decisions are made by this juristic personality, its liabilities and liabilities of those running it. The paper shall seek to examine if this veil of juristic person exists permanently or it can be lifted. What are the consequences of lifting that gown of juristic personality? The Concept of juristic personality. Companies and corporations are said to be legal or juristic personalities. This arises from the incorporation process. A corporation is a word that is said to have been derived from a Latin word corpus which means among other things “body”. An incorporated body becomes what is known as a “corpora coporata” in Latin or corporate body. The idea of a juristic person in law refers to an entity recognized in law as an artificial person. What this means is the entity recognized is given rights and responsibilities that arise from the law. The idea here is to separate the entity’s rights...
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...PIERCING THE CORPORATE VEIL: ITS LEGAL AND JUDICIAL RECOGNITION IN ETHIOPIA Endalew Lijalem Enyew ♣ Abstract: Upon acquisition of legal personality a company enjoys certain attributes such as limited liability. While the separate legal personality of a company enables it to enjoy rights and assume obligations quite different from its members, the limited liability of shareholders refers to the fact that the company alone is liable for its debts. However, such privilege of limited liability may not always exist when the legal personality of a company is abused and used for illegitimate or unlawful purposes and other reasons. This article examines some of the grounds by which the corporate veil can be pierced under Ethiopian law and the role of courts in recognizing the doctrine. Based on the analysis of the relevant legislative provisions and some court cases, it is found that Ethiopian company law, though not sufficient, provides some clear grounds of piercing the corporate veil and certain possible grounds which may call for the application of the doctrine. It is also argued that Ethiopian courts should apply the doctrine of piercing the corporate veil, through the purposive interpretation of the statutory provisions, if doing so produces equitable results and fairness. Key Words: Company, corporate veil, piercing the veil, Ethiopia DOI http://dx.doi.org/10.4314/mlr.v6i1.3 _____________ Introduction The separate legal personality of a company renders it a juridical person...
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...attribute of separate legal entity is that the company is regarded as a legal person distinct from any and all of the individuals involved in the company by incorporation of a projected or existing enterprise. Under s15(1) of the Companies Act 2006, companies which are registered become incorporated and separate legal persons on registration. As a consequence of the existence of a distinct legal entity, a company has the capacity to be a party to a contract, sue or being sued, commit a crime, be the victim of a crime, hold property, and rationally, thus, make profits and losses that are its own rather than those of the shareholders of the company. The Principle of Separate Legal Personality The importance of the corporate personality which was created by statute in the first half of the nineteenth century was not fully appreciated until the well-known case of Salomon. This case firmly established the operation of the concept of the separate legal personality of a company under the Companies Act of 1862 and this principle is still existed in the Companies Act of 2006 today under the UK Company Law. The Salomon case makes it clear that it is possible for a sole trader owner to transfer a small business into a registered company and hence separate himself from the liabilities of the business. In this case, Salomon carried on a boot and shoe manufacturing business as a sole proprietor. In 1892, he registered a company and sold his profitable business to that company for the purpose...
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...Overview * Introduction to and sources of Company Law (2) * Types of companies – General characteristics (7) * Formation of a company (13) * Capital (19) * Financing of company * Corporate Bodies * General meeting * Control * Annual Corporate Compliance * Director’s liabilities * Restructuring of companies * Liquidation of companies * Continuity * Draft questions exam Introduction to and sources of company law Sources When I start up a business in Belgium, whether I’m Belgian or my foreign company locates a subsidiary here, which legislative rules should I take into account? Which legislation can accurately tell me what to do and what not to do? There are four sources of legislation for Belgian companies: the Belgian Company Code, the Jurisprudence, the Doctrine and the European Directives. The Company Code The Company Code is a legislation code that was adopted by the Belgian Parliament on the 7th of May in 1999, which regroups and restructures the main provisions of Belgian Company Law. For decades, authors and practitioners had been complaining about the complexity of the Belgian Company Law. There were far too many sources to it. What they wanted was one and only one book with all the provisions concerning the Belgian Company Law. So by adopting the Company Code, the legislator didn’t have as main objective...
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...and services). Where is this regulation?-Corporations Act 2001, Australian Securities and Investments Commission Act 2001, These are both federal or commonwealth (central government). Subordinate legislation also (regulations under these Acts plus ASX listing rules, statements and Guides, Accounting Standards). Finally, A lot of the important principles relating to corporations and their responsibilities have evolved via case law. The (Corporations) Act has been described as “Bloated” – why???, Moves have been made to simplify the Act, but every time this happens, something else comes in to make it bigger again! The Administrative and Enforcement bodies ASIC, Under ASIC Act, Corporations and Markets Advisory Committee, Takeovers Panel, Companies Auditors and Liquidators Disciplinary Board, Financial Reporting Council, Australian Accounting Standards Board,...
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...by the agent is binding on the principal 1. principal may be liable in K, tort, property, etc…. (Vicarious liability) ii. question of agency is a factual matter to be determined as a “matter of fact” b. Res 3d Agency 1.01 (definition of “Agency”) i. Agency relationship created when (First Question to ask when dealing with agency) 1. The principal manifests assent to have the agent act on the principal’s behalf and under the principal’s control; and 2. The agent manifests assent or otherwise consents so to act 1. When agency exists the principles of attribution bind’s the principals to agents dealings with third parties 2. manifestation need not be by words (spoken or written), it may be created by conduct/actions i. Agent rx believes that Principal has manifested assent, and has rx accepted ii. (Notes….Legal Consequences of Agency) 1. Inward Looking Consequences: relate to the relationship between the principal and the agent and are largely governed by the contracts between the parties and by the law of fiduciary duties 2. Outward Looking Consequences: relates to the relationship among the principal, the agent, and a third party and are governed by various “principles of attribution” (authority….actual/apparent) 1. Tend to be the primary focus where central issue is agency formation 2. Come about because principals can be held liable for the tortuous actions of their agents c. Res 3d Agency 1.02 i. Whether a relationship is characterized as agency in an agreement...
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...Foster Back H8032-Prelims.QXD 7/1/06 11:08 AM Page ii CIMA Publishing is an imprint of Elsevier Linacre House, Jordan Hill, Oxford OX2 8DP, UK 30 Corporate Drive, Suite 400, Burlington, MA 01803, USA First edition 2006 Copyright © 2006 Elsevier Ltd. All rights reserved No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the publisher Permissions may be sought directly from Elsevier’s Science & Technology Rights Department in Oxford, UK: phone (ϩ44) (0) 1865 843830; fax (ϩ44) (0) 1865 853333; e-mail: permissions@elsevier.com. Alternatively you can submit your request online by visiting the Elsevier web site at http://elsevier.com/locate/permissions, and selecting Obtaining Permission to use Elsevier material Notice No responsibility is assumed by the publisher for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions or ideas contained in the material herein. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN-13: 978 0 7506 8032 5 ISBN-10: 0 7506 8032 6 For information on all CIMA publications visit our web site at books.elsevier.com Typeset by Integra Software Services Pvt. Ltd,...
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...Question 3 or 4 in Section A. Only 3 solutions will be marked. 2. When the examination is over, place your solutions to this section of the Corporate Laws and Governance examination in a separate envelope to your solutions to Section B. Q. 1. The Board of XYZ Ltd. is considering a major diversification of the Company’s activities into a new product/market area. The Board of Directors are aware of the risks of diversification away from the Company’s existing core business and are anxious to limit the resulting risks of such a move. Accordingly, they have decided that a new company, which will be a subsidiary of XYZ Ltd. Should be set up for the purpose of carrying on the new business. The Finance Director of XYZ has been asked by the Board to advise on the funding options for the subsidiary. You are have been asked by the Finance Director to assist in this task. Specifically, you are required to draft a memorandum dealing with the following issues: a) The different types of real non-possessory security interests that are recognised in Irish law. (5 marks) b) The likely terms that a bank will seek to incorporate into any debenture creating a charge over the subsidiary’s undertaking and assets. (5 marks) c) The types of charges that must be registered under Section 99 of the Companies Act 1963. (4 marks) d) The powers that a Receiver appointed out of Court on foot of a debenture might be expected to possess. (5 marks) e) The likelihood of a bank being willing...
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...COMMERCIAL COMPANIES IN LEBANON 06 Chamber of Commerce Industry and Agriculture of Beirut and Mount Lebanon 00 CONTENT 01 LETTER FROM THE CHAIRMAN 02 JOINT LIABILITY COMPANY 03 LIMITED PARTNERSHIP 04 UNDECLARED PARTNERSHIP 05 JOINT STOCK COMPANY LIMITED LIABILITY COMPANY (LLC) 07 PARTNERSHIP LIMITED BY SHARES 08 HOLDING COMPANIES 09 OFFSHORE COMPANIES 10 THIRD-FOREIGN COMPANIES Chamber of Commerce Industry and Agriculture of Beirut and Mount Lebanon 01 2 LETTER FROM THE CHAIRMAN True to its mission of supporting the private economy, the Chamber hereby undertakes to assist prospective foreign investors all through the establishment process. The defining advantages of Lebanon’s investment environment derive from its free enterprise system distinguished by a high degree of openness to foreign trade and the absence of restrictions on capital movement. Such system naturally safeguards private ownership of all form of assets, and subjects local and foreign investors to the same code of laws and regulations. Hence, foreign investors retain full control over their business and private assets, unhindered by the constraint of an imposed local partner or restrictions on business and investment decisions. Evolution at the policy-making level continues to build on the competitiveness of the investment environment. The public-private partnership approach certainly generates ...
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...CMS_LawTax_CMYK_28-100.eps Duties & Responsibilities of Directors September 2012 With increased consolidation of business across Europe, executives of multinational groups can find that they are required to become directors of companies in a variety of jurisdictions, often at short notice. The rules relating to directorships vary considerably from jurisdiction to jurisdiction. This guide is intended to provide an overview of the duties and responsibilities of directors across 23 countries in Europe, answering the most frequently asked questions for directors coming from another jurisdiction. In many jurisdictions, there are various forms of company available, and there are different rules for directors according to the type of company used. This guide focuses for each jurisdiction on the most common form of company, and on the rules which apply to executive / managing directors. CMS is the organisation of independent European law and tax firms of choice for organisations based in, or looking to move into, Europe. CMS provides a deep local understanding of legal, tax and business issues and delivers client-focused services through a joint strategy executed locally across 28 countries with 52 offices in Western and Central Europe and beyond. CMS was established in 1999 and today comprises ten CMS firms, employing over 2,800 fee earners and is headquartered in Frankfurt, Germany. This guide is intended only to provide a general overview of the matters covered. It is based...
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...Securities and Exchange Commission of Pakistan This manual is for reference only and does not constitute any legal requirement on companies, their officers, directors or auditors. This manual may be used for guidance and compliance must be ensured with the provisions of applicable laws and regulations. CONTENTS I. II. INTRODUCTION WHAT IS CORPORATE GOVERNANCE? (i) The Background (ii) Definition of Corporate Governance (iii) The Benefits of Corporate Governance (iv) The Pakistani Corporation (v) The Origins of Corporate Governance in Pakistan THE NEED FOR CORPORATE GOVERNANCE THE STAKEHOLDERS (i) General (ii) Shareholders (iii) Directors (iv) Employees (v) Creditors PROMOTING REFORM AND SHAREHOLDER ACTIVISM ROLE AND RESPONSIBILITIES OF DIRECTORS AND MANAGERS (i) Directors and Managers Distinguished (ii) Appointment and Proceedings of Directors (iii) Fiduciary Duties (iv) Powers and Responsibilities of Directors (v) Liability of Directors (vi) Executive and the Non-executive Directors (vii) The CEO 1 3 3 4 7 8 10 12 17 17 19 20 20 21 22 26 26 26 32 38 42 42 45 III. IV. V. VI. (viii) (ix) (x) (xi) The Company Secretary The CFO Internal Control System Reporting Requirements 47 49 49 50 VII. SCRUTINIZING FINANCIAL STATEMENTS - WHAT EVERY DIRECTOR SHOULD KNOW (i) General (ii) Liability of Directors (iii) Preparation of Financial Statements (iv) Tools for Directors' Review (v) How to Prevent Misleading and Fraudulent Financial Statements (vi) External Auditors (vii)...
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...Governance Program that IFC is implementing in Indonesia since 2012. This manual is distributed with the understanding that neither the authors, nor the organizations, countries they represent, nor the publisher are engaged in rendering legal or financial advice. The material in this Manual is set out in good faith for general guidance, and no liability can be accepted for any possible loss or expense in incurred as a result of relying on the information contained herein. This publication is not intended to be exhaustive. It should not be relied upon as a basis for formulating business decisions. On all financial issues and questions, an accountant, auditor, or other financial specialist should be consulted. A lawyer should be consulted on all legal issues and questions. As the laws in the Republic of Indonesia are constantly changing, legal rules referred to herein may be obsolete or superseded by new legislation at the moment of the publication of this Manual. All references to the male gender throughout this Manual apply to both sexes, unless otherwise indicated. The conclusions and judgments contained in this report should not be attributed to, and do not necessarily represent the views of IFC or its Board of Directors or the World...
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...MEANING, CHARACTERISTICS AND TYPES OF A COMPANY INTRODUCTION Industrial has revolution led to the emergence of large scale business organizations. These organization require big investments and the risk involved is very high. Limited resources and unlimited liability of partners are two important limitations of partnerships of partnerships in undertaking big business. Joint Stock Company form of business organization has become extremely popular as it provides a solution to overcome the limitations of partnership business. The Multinational companies like Coca-Cola and, General Motors have their investors and customers spread throughout the world. The giant Indian Companies may include the names like Reliance, Talco Bajaj Auto, Infosys Technologies, Hindustan Lever Ltd., Ranbaxy Laboratories Ltd., and Larsen and Tubro etc. 1.2 MEANING OF COMPANY Section 3 (1) (i) of the Companies Act, 1956 defines a company as “a company formed and registered under this Act or an existing company”. Section 3(1) (ii) Of the act states that “an existing company means a company formed and registered under any of the previous companies laws”. This definition does not reveal the distinctive characteristics of a company . According to Chief Justice Marshall of USA, “A company is a person, artificial, invisible, intangible, and existing only in the contemplation of the law. Being a mere creature of law, it possesses only those properties which the character of its creation of its creation confers...
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...) Debt, Equity, and Valuation 22 III.) CONTROL OF CORPORATE DECISIONS 32 A.) The Role of the Shareholder 32 B.) Management Obligations 50 1.) Duty of Care 51 2.) Duty of Loyalty 56 3.) Duty of Fairness: Parent-Subsidiary Relationships 63 4.) Duty of Good Faith 64 5.) Management Obligations Under Federal Securities Laws 67 C.) Shareholder Litigation 76 IV.) Structural Changes 85 A.) Transactions in Control 85 B.) Mergers and Acquisitions 86 1.) Mergers 87 2.) Sale of Assets 93 3.) Asset Purchase or Tender Offer 94 C.) Public Control Contests 96 1.) The Poison Pill 100 2.) Enhanced Review When Business is Up for Sale 103 3.) Proxy Contests for Corporate Control 106 4.) Protecting the Deal: Shareholder Lockup Agreements 109 I.) INTRODUCTORY PRINCIPLES • Definitions o Corporate Law: The allocation of rights and power within a corporation; the internal body of law ▪ Addresses the creation of economic wealth through the facilitation of voluntary, ongoing collective action ▪ Flexible- expectation that market discipline will weed out what is not working ▪ Principle aim- reduce agency costs of all sorts o Securities Law: Regulates capital markets that corporations use to obtain funding o Firm: A form of business relation that has a temporal dimension, a social identity, and a separate pool of dedicated assets Efficiency and Other Concepts • Efficiency is the primary...
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...electronic publications which help readers to understand and apply their content, whether studying or at work. To find out more about the complete range of our publishing, please visit us on the World Wide Web at: www.pearsoned.co.uk 6th Edition Financial Accounting for Decision Makers Peter Atrill and Eddie McLaney Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at: www.pearsoned.co.uk Second edition published 1999 by Prentice Hall Europe Third edition published 2002 by Pearson Education Limited Fourth edition 2005 Fifth edition 2008 Sixth edition 2011 © Prentice Hall Europe 1996, 1999 © Pearson Education Limited 2002, 2011 The rights of Peter Atrill and Eddie McLaney to be identified as authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic,...
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