Company Directors Liability And Creditor Protection
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Company Directors Liability And Creditor Protection
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Author : Andrew Keay
language : en
Publisher: Taylor & Francis
Release Date : 2023-06-23
Company Directors Liability And Creditor Protection written by Andrew Keay and has been published by Taylor & Francis this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023-06-23 with Law categories.
The book provides an analytical exposition of the law concerning directors’ liability for the losses sustained by their companies’ creditors, when the directors’ companies are in financial distress or become insolvent. It is a detailed one-stop resource for obtaining a good understanding of the law which has developed from legislation and case law. In particular, there is a detailed consideration of what needs to be proved, what defences there are, and what might be the issues of concern for all parties. A doctrinal method is adopted and there is extensive analysis of the relevant legislation and case law. Rather than merely referring to cases to support propositions, the discussion considers many of the cases in context and in depth and their relevance to the aim of the book. The book also endeavours to provide views, in a practical way, on aspects of the law and it identifies problems and how they may be addressed. Of interest to legal practitioners and insolvency practitioners alike, in addition the book will be useful to directors, government officials and academics.
Directors Duties In The Context Of Insolvency
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Author : Julia Honds
language : en
Publisher: GRIN Verlag
Release Date : 2007-12-17
Directors Duties In The Context Of Insolvency written by Julia Honds and has been published by GRIN Verlag this book supported file pdf, txt, epub, kindle and other format this book has been release on 2007-12-17 with Law categories.
Essay from the year 2006 in the subject Law - Comparative Legal Systems, Comparative Law, grade: A, Victoria University of Wellington, course: LLM Research Paper, Master Abschlussarbeit, language: English, abstract: This essay deals with directors’ duties, focusing on the duties that specially arise in the context of a company becoming insolvent. The relevant duties are those under sections 131, 135 and 136 of the Companies Act 1993. The drafting of these insolvent trading provisions in New Zealand has been criticised in the legal literature. This research paper considers not only this criticism but also deals with the more general debate about the value of insolvent trading provisions in general. Although the current drafting of the relevant provisions in New Zealand is not without minor flaws, the need for creditor protection requires the maintenance of insolvent trading provisions in general. Besides that, this essay looks at the remedies for breaches of directors’ duties. The most important provision in this context is s 301 Companies Act 1993. Pursuant to this provision both the liquidator and individual creditors can enforce directors’ civil liability. However, the possibilities of individual creditors to obtain payment directly to themselves are restricted. The final part of this essay considers the question whether a separate duty directly owed to individual creditors should be introduced. Although such a duty seems to have some benefits, it would not be commensurate with leading principles and ideas of Insolvency Law and should therefore not be introduced. It is the concern of this research paper to point out the many issues that arise in context of directors’ duties and insolvency law and to show that it is important to strike an appropriate balance between the intended creditor protection and the entrepreneurial freedom of company directors.
Company Directors Liability And Creditor Protection
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Author : Andrew Keay
language : en
Publisher:
Release Date : 2023
Company Directors Liability And Creditor Protection written by Andrew Keay and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023 with LAW categories.
The book provides an analytical exposition of the law concerning directors' liability for the losses sustained by their companies' creditors, when the directors' companies are in financial distress or become insolvent. It is a detailed one-stop resource for obtaining a good understanding of the law which has developed from legislation and case law. In particular, there is a detailed consideration of what needs to be proved, what defences there are, and what might be the issues of concern for all parties. A doctrinal method is adopted and there is extensive analysis of the relevant legislation and case law. Rather than merely referring to cases to support propositions, the discussion considers many of the cases in context and in depth and their relevance to the aim of the book. The book also endeavours to provide views, in a practical way, on aspects of the law and it identifies problems and how they may be addressed. Of interest to legal practitioners and insolvency practitioners alike, in addition the book will be useful to directors, government officials and academics.
Civil Liability Of Company Directors And Creditor Protection In The Vicinity Of Insolvency
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Author : Tetiana Bersheda Vucurovic
language : en
Publisher:
Release Date : 2007
Civil Liability Of Company Directors And Creditor Protection In The Vicinity Of Insolvency written by Tetiana Bersheda Vucurovic and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2007 with Bankruptcy categories.
Creditor Protection In Private Companies
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Author : Thomas Bachner
language : en
Publisher:
Release Date : 2009
Creditor Protection In Private Companies written by Thomas Bachner and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2009 with Corporation reserves categories.
Investigates mechanisms in English and German law that protect creditors against the abuse of limited liability by directors and shareholders.
Company Directors Responsibilities To Creditors
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Author : Andrew Keay
language : en
Publisher: Routledge
Release Date : 2007-03-12
Company Directors Responsibilities To Creditors written by Andrew Keay and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2007-03-12 with Law categories.
This timely work is the first to comprehensively examine directors' responsibilities to creditors in times of financial strife, as well as addressing when these responsibilities arise, and what directors should have to do to ensure that they comply with their obligations. Keay explores the relevant issues from doctrinal, normative and comparative perspectives and addresses the question as to when directors are liable for wrongful trading, fraudulent trading or breach of their duties to creditors and whether directors should be held responsible for the before mentioned. Besides the relevant UK legislation and case law, legislation and case law from Australia, Canada, Ireland and the United States are examined and compared and reforms which take into account the aims and rationale of the relevant legislation as well as creditors' interests are proposed and assessed. Importantly, new approaches for courts which would make the nature of the responsibility and its timing more precise are suggested. Company directors have certain responsibilities to creditors of their companies. In particular, they should avoid fraudulent and wrongful trading and consider, as part of their duties, the interests of creditors when their companies might be, or are, in financial difficulty. The work is precipitated by the lack of coherence in the consideration of wrongful trading and the recent delivery of important cases on fraudulent trading. Also, this timely work is the first to comprehensively examine directors' responsibilities to creditors in times of financial strife, as well as addressing when these responsibilities arise, and what directors should have to do to ensure that they comply with their obligations. Keay explores the relevant issues from doctrinal, normative and comparative perspectives and seeks to address the question as to when directors are liable for wrongful trading, fraudulent trading or breach of their duties to creditors and whether directors should be held responsible for wrongful trading and failing to consider the interests of creditors. Besides the relevant UK legislation and case law, legislation and case law from Australia, Canada, Ireland and the United States are examined and compared, and reforms which take into account the aims and rationale of the relevant legislation as well as creditors' interests are proposed and assessed. Importantly, new approaches for courts which would make the nature of the responsibility and its timing more precise are suggested.
Directors Responsibility To Creditors In Company Law
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Author : Tatjana Jevremovic Petrovic
language : en
Publisher:
Release Date : 2022
Directors Responsibility To Creditors In Company Law written by Tatjana Jevremovic Petrovic and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022 with categories.
This paper deals with the issue of directors' responsibility as one of the main instruments of efficient creditor protection. In continental laws this responsibility can be established in tort law, based on fault. Also, UK law and most developed continental laws are also introducing special instruments of directors' liability when a company is in the vicinity of insolvency through wrongful trading or similar functional equivalent rules.Different national law systems of directors' responsibility are compared with the current regime of directors' responsibility in Serbian law. We conclude that in Serbian law there is no direct responsibility of directors to creditors, neither through Company Law rules, nor general rules of Civil Law, particularly tort responsibility. Also, Serbian Insolvency Act does not recognize wrongful trading or similar instruments by which directors could be directly responsible if the company is near or in insolvency. Although the newly adopted Company Act in Serbia does introduce one particular case of direct responsibility of directors to creditors, it is still very limited and offers neither adequate nor sufficient protection.This situation, as well as widely existing opinion of case law concerning tort responsibility to third parties only for a company is analyzed and criticised on several particular issues. In this article we urge introduction of wider rules in future legislative amendments, by which directors would be personally responsible to creditors in exceptional situations. Preferably this could be introduced by general tort responsibility or special company law rules, or through wrongful trading, either alternatively or cumulatively. This would provide more protection for creditors, which has become even more pertinent after the minimum capital requirement was abandoned and rules concerning distribution of profits relaxed in respect of limited liability companies.
Directors Personal Liability For Corporate Fault
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Author : Helen Anderson
language : en
Publisher: Kluwer Law International B.V.
Release Date : 2008-10-22
Directors Personal Liability For Corporate Fault written by Helen Anderson and has been published by Kluwer Law International B.V. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2008-10-22 with Law categories.
The corporation’s ability to avoid the costs of risks that materialize as a result of its pursuit of profits is a departure from the market model. It can easily be seen as an evasion of the obligations that go with being the un-coercing, freely-acting and choosing ‘invisible hand.’ Dramatic corporate collapses and major human and economic disasters due to bad corporate conduct have strengthened the common sense view that, if the corporate directors and officers have made the deliberate act their own in some way, they may be held responsible on the same basis that liberal law holds all individuals responsible for their intended actions in the non-corporate settings. Accordingly, recent decades have seen an increasing number of statutory interventions worldwide that impose direct responsibilities on directors and other corporate officers in respect of a wide range of regulatory regimes: environmental regulation, occupational health and safety and other employment standards, human rights statutes, transportation regimes, consumer and competition laws, protections for creditors and workers against insolvent trading, and the like. Legitimacy crises have pushed legislators to enlarge the number of responsibilities, to increase the amounts of the fines that may be levied and to make it clear that, in some cases, prison sentences will be imposed. This collection of essays describes and analyzes the legal regimes governing directors’ liability for corporate fault and default across eleven important trading jurisdictions. It asks: Are the reform provisions, especially director duties of ‘due diligence,’ sharply enough aimed to attain the goal of corporate accountability? Will it be easy or difficult for defendants to establish that due diligence was exercised? Is it possible that more reliance on self-policing may lead to less documenting and reporting of wrongs and dangers? What impact may schemes of greater self-monitoring have on State regulation? In what ways might corporations react to these demands that they become guardians of the public weal? The authors – each an authority in his or her respective jurisdiction – recognize that the reforms are a reaction to the political problems created by the ill fit of the corporation with the economic and political value systems that we purport to hold dear. As they survey the ways that vibrant economies can frame laws to influence the conduct of directors and companies, they invite further exploration into the political, economic, practical, and evolutionary factors that may explain the convergence and divergence of both statute law and judicial doctrines and the desirability or inevitability of this deeply significant trend.
Insolvency Law Reform In Australia And Singapore
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Author : Stacey Steele
language : en
Publisher:
Release Date : 2020
Insolvency Law Reform In Australia And Singapore written by Stacey Steele and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020 with categories.
This article compares reforms to directors' liability for insolvent trading in Singapore and in Australia. The authors analyse the law in these two countries because they are important Asia-Pacific trading partners and their laws were originally largely the same - Singapore's law on insolvent trading reflected the law in Australia from the 1960s. However, the law in the two countries has now diverged substantially. The comparison of these two countries therefore represents an interesting case study in how countries differ in their approaches to balancing the competing interests evident in laws that impose personal liability on company directors for insolvent trading. Reform of the prohibition against insolvent trading was a focus of Australia's insolvency law reforms in 2017 which led to the introduction of a safe harbour for directors from liability. Singapore's omnibus insolvency law reforms of 2018-19 include amendments to update Singapore's fraudulent and insolvent trading provisions by introducing a concept of 'wrongful trading'. The article finds that there are some areas of convergence between these two jurisdictions when it comes to debates about such provisions, but concludes that the different contemporary legislative histories in Australia and Singapore have affected their approaches to reform. Reformers in both jurisdictions have attempted to find an appropriate balance between protecting creditors, discouraging director misconduct and encouraging entrepreneurship and innovation; however, this comparison suggests that the weight that reformers place on creditor protection compared to the concern that excessive personal liability can make directors unduly risk-averse is influenced by their existing legislative framework and experience of those laws. Although Australia has shifted away from a strict focus on creditor protection, to give directors more opportunities to engage in restructuring, Singapore's amendments may provide a more creditor-friendly regime.
Creditor Protection In Private Equity Backed Leveraged Buyout And Recapitalisation Practices
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Author : Hasan Erdem ?i?mangil
language : en
Publisher: BWV Verlag
Release Date : 2014-11-17
Creditor Protection In Private Equity Backed Leveraged Buyout And Recapitalisation Practices written by Hasan Erdem ?i?mangil and has been published by BWV Verlag this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014-11-17 with Bankruptcy categories.
Private equity-backed leveraged buyout (LBO) and leveraged recapitalisation practices have been on the rise since the early 1970s when the LBO model was first invented. They continue to play a major role for investors for their less transparent and less bureaucratic investment models outside of capital markets, where financial regulations become tighter following the financial crisis of 2008 affecting global capital markets in a chain reaction. Private equity-backed LBOs and leveraged recapitalisations continue to be popular investment models, however they carry risks both at the target company level and on a macroeconomic level due to the interconnectedness of these investments with global capital markets for funding and refinancing of acquisition finance debts. Creditor protection mechanisms of company and insolvency law therefore play a central role in preventing or dealing with failures that may be triggered at the target company level and have detrimental effects for all creditors and the economy. Though the European legal capital system must be critically revisited, England's and Germany's already mature markets and legal systems should help in developing a better interpretation of these rules in developing economies like Turkey, consequently establishing a solid base for this investment practice in these economies.