An Examination of the Relevance of the Codification and Application of the American Business Judgment Rule to Nigerian Corporate Law

2020 ◽  
Vol 64 (3) ◽  
pp. 373-397
Author(s):  
Wiseman Ubochioma
Keyword(s):  
Comparative Analysis ◽  
Corporate Law ◽  
Duty Of Care ◽  
American Business ◽  
Legal Regime ◽  
Business Decisions ◽  
Business Judgment Rule ◽  
Statutory Duty ◽  
The Us

AbstractThe business judgment rule is an ancient doctrine that was developed in the US. It seeks to prevent courts from reviewing directors’ decisions, on the basis that directors have the capacity and expertise to make business decisions. This article examines the desirability of applying the US business judgment rule in Nigeria. Through a comparative analysis, it argues that the peculiarities of Nigeria's corporate law and environment do not justify the application of the rule. More specifically, it contends that differences in the legal regime for derivative suits, standards of duty of care and skill, corporate law culture, and the distinct epoch in which the business judgment rule and the duty of care and skill were recognized in the US, make its application unnecessary in Nigeria. It concludes that the current statutory duty of care and skill should be retained to hold directors accountable for reckless business decisions.

scholarly journals AN ANALYSIS OF THE DIRECTORS’ DECISION-MAKING FUNCTION THROUGH THE LENS OF THE BUSINESS-JUDGMENT RULE

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Jan-Louis van Tonder
Keyword(s):  
Decision Making ◽  
The State ◽  
Corporate Law ◽  
Company Law ◽  
Best Interests ◽  
Duty Of Care ◽  
Business Judgment Rule ◽  
Managerial Authority ◽  
Court Interpreting ◽  
Legislative Framework

The main purpose of this article is to examine the standard of conduct required from a director in the exercise of his decision-making function, through the lens of the business-judgment rule. The business-judgment rule provides the circumstances in which the duty to act in the best interests of the company and the duty of care, skill and diligence will be satisfied by a director. In order to achieve the stated goal the board’s statutory managerial authority, the standard of director’s conduct required to discharge the duty of care, skill and diligence as provided for in section 76(3)(c), and the features and functions of the business-judgment rule will also be examined. Section 5(2) of the Act provides that, to the extent appropriate, a court interpreting or applying the provisions of the Act may consider foreign-company law. This is complementary to section 5(1) which directs that the Act must be interpreted and applied in a manner that gives effect to the purpose of section 7. The article will refer to the highly developed corporate law in the State of Delaware to assist the research in examining the content and meaning of the decision-making function as a standard of director’s conduct. For this reason, the corporate legislative framework of the State of Delaware will also be discussed.

scholarly journals BUSINESS JUDGEMENT RULE: KETENTUAN DAN PELAKSANAANNYA OLEH PENGADILAN DI INGGRIS, KANADA DAN INDONESIA

2020 ◽  
Vol 32 (2) ◽  
pp. 275
Author(s):  
Yafet Yosafet Wilben Rissy
Keyword(s):  
United Kingdom ◽  
Company Law ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Business Decisions ◽  
The United Kingdom ◽  
Business Judgment Rule ◽  
The Uk

AbstractThis article discusses the provisions of business judgment rule (BJR) in the company law and the application of BJR by the courts in the United Kingdom (UK), Canada and Indonesia. In the UK and Canada, the courts have been long examined the appropriateness of directors’ business decisions. Later, BJR was codified into the Canadian Business Corporations Act 2019, meanwhile, duty of care and fiduciary duties were codified into the UK 2006 Companies Law which implicitly regulates BJR. Indonesia adopts BJR in the Company Act 2007 but the courts rarely examine directors’ business decisions and the adoption needs to be rearranged systematically.IntisariArtikel ini membahas bagaimana dan kapan pengadilan menguji aturan penilaian bisnis (APS) dan bagaimana APS diatur dalam hukum perusahaan di Inggris Raya, Kanada, dan Indonesia. Pada pengadilan Inggris dan Kanada yang menganut tradisi hukum kebiasaan, APS telah lama diterapkan untuk menilai keputusan bisnis direktur. Baru-baru ini, APS dikodifikasikan ke dalam Undang-Undang Perusahaan Bisnis 2019. Sementara itu, tugas direktur untuk peduli dan tugas fidusia juga dikodifikasikan ke dalam Undang-Undang Perusahaan Inggris 2006 yang secara implisit mengatur APS. Indonesia juga mengadopsi APS dalam Undang-Undang PT 2007 tetapi pengadilan jarang menguji keputusan bisnis direktur dan adopsi ini perlu diatur ulang secara lebih sistematis.

BUSINESS JUDGEMENT RULE SEBAGAI PERLINDUNGAN ATAS PERTANGGUNGJAWABAN PRIBADI DIREKSI PERSEROAN

2019 ◽  
Vol 14 (1) ◽  
pp. 59
Author(s):  
Gideon Paskha Wardhana
Keyword(s):  
Legal Protection ◽  
Limited Liability ◽  
Secondary Data ◽  
Corporate Law ◽  
Good Faith ◽  
Duty Of Care ◽  
Business Decisions ◽  
Library Research ◽  
Strategic Value ◽  
Directors And Officers

This research is intended to understand the implementation of the business judgement rule doctrine (“BJR”) in the corporate law of Australia, Netherlands and within the Act No. 40 Year 2007 concerning Limited Liability Company, and the importance of BJR to directors and the company that they manage. This research is a normative juridical study conducted through library research and analyzed by qualitative research methods on secondary data and by comparing the implementation of BJR doctrine in Australia and Netherlands. The result of the study shows that BJR gives a legal protection to company’s directors and officers from liability on every policy or business judgement or transaction that is harmful to the company, as long as the policy or business judgement or transaction is done in good faith, due care, and within the scope of their duty and authority. The BJR doctrine also gives an advantage as a rule of consideration and action for company’s directors and officers, therefore they will have more courage to take business decisions which has a strategic value and profitable to the company that they manage. Key words: business judgement rule, duty of good faith, duty of care.  ABSTRAK Penelitian ini ditujukan untuk memahami penerapan doktrin business judgement rule (“BJR”) dalam hukum perseroan di Australia, Belanda dan di dalam Undang-Undang No. 40 Tahun 2007 tentang Perseroan Terbatas, serta arti pentingnya BJR bagi direksi maupun perusahaan yang dikelolanya. Penelitian ini merupakan penelitian yuridis normatif yang dilakukan melalui penelitian kepustakaan dan dianalisa dengan metode penelitian kualitatif atas data sekunder yang ditemukan, serta dengan membandingkan penerapan doktrin BJR di Australia dan Belanda. Hasil penelitian menunjukkan bahwa BJR memberikan perlindungan hukum bagi direksi dan pejabat perseroan dari pertanggungjawaban atas setiap kebijakan atau keputusan bisnis atau transaksi yang mengakibatkan kerugian bagi perseroan, selama kebijakan atau keputusan bisnis atau transaksi tersebut dilakukan dengan itikad baik, penuh kehati-hatian, serta dalam lingkup tanggung jawab dan wewenangnya. Doktrin BJR juga bermanfaat sebagai kaidah berpikir dan bertindak bagi direksi dan pejabat perseroan, sehingga mereka lebih berani dalam mengambil keputusan bisnis yang bernilai strategis dan menguntungkan bagi perseroan yang dikelolanya. Kata kunci: business judgement rule, kewajiban itikad baik, kewajiban kehati-hatian

Russian Policy of Agriculture Support and the Necessity of Its Modification after WTO Accession

2012 ◽  
pp. 132-149 ◽  
Author(s):  
V. Uzun
Keyword(s):  
Comparative Analysis ◽  
World Trade Organization ◽  
Agricultural Production ◽  
World Trade ◽  
The Us ◽  
The World ◽  
Wto Accession ◽  
The Eu ◽  
Agriculture Support

The article deals with the features of the Russian policy of agriculture support in comparison with the EU and the US policies. Comparative analysis is held considering the scales and levels of collective agriculture support, sources of supporting means, levels and mechanisms of support of agricultural production manufacturers, its consumers, agrarian infrastructure establishments, manufacturers and consumers of each of the principal types of agriculture production. The author makes an attempt to estimate the consequences of Russia’s accession to the World Trade Organization based on a hypothesis that this will result in unification of the manufacturers and consumers’ protection levels in Russia with the countries that have long been WTO members.

МЕЖДИСЦИПЛИНАРНОСТЬ В ПОДГОТОВКЕ КОНФЛИКТОЛОГОВ: СОСТОЯНИЕ И ПЕРСПЕКТИВЫ

2020 ◽  
Vol 15 (1) ◽  
pp. 13
Author(s):  
А. И. Стребков ◽  
А. И. Мусаев
Keyword(s):  
Conflict Resolution ◽  
Comparative Analysis ◽  
Subject Matter ◽  
Academic Program ◽  
Academic Programs ◽  
Full Time ◽  
The Us ◽  
Promotional Materials ◽  
Russian Universities ◽  
Educational Methodology

The present article concerns with the modern state of things of the conflict resolution specialists’ training in the US universities. The analysis is based on the informational and promotional materials which were picked up from the 11 American universities’ websites. The aim of the analysis was the examination of the four sections, which are: the orientation of the academic program, the content of the program or the scope of the skills, the main methodology of the academic program and the educational technologies. Together with the analysis of the US universities’ academic programs the article provides the comparative analysis of these programs with the Russian academic programs. On the back of this comparative analysis the authors come to the comprehensive conclusion according to which the specialists’ training in the field of the conflict resolution and peacebuilding in the US does not have significant differences from Russian ones and is carried out within one international academic trend in regard to its main features which are: the orientation, content, educational methodology and technologies. The key distinction of the Russian training from the American one is that the Russian academic tradition does have the core subject matter around which the whole academic program is being developed and which is the conflict. This subject matter is being taken in its entirety and the conflict resolution is considered as the closing stage of the conflict studies specialists’ training whereas the academic programs of the US universities embrace the conflict resolution as the subject matter of the academic training and therefores leaves beyond the scope of the training both the theory of the conflict and the forms practice of its manifestation in a number of the programs. The letter is peculiar to both short-term academic programs and the full-time two-year academic programs as it is accepted in the educational space of the Russian Federation. Furthermore, the authors of the article make up the conclusion of the coinciding major educational methodology which guides the academic programs of the American and Russian universities and which is developed on the principles of the interdisciplinarity.

Pre-Insolvency Proceedings

2019 ◽  
Author(s):  
Nicolaes Tollenaar
Keyword(s):  
Comparative Analysis ◽  
Class Composition ◽  
Normative Foundation ◽  
The Us ◽  
Insolvency Proceedings ◽  
Comprehensive Discussion

This book develops a normative foundation and framework for pre-insolvency proceedings. The book features a comprehensive discussion of the key principles underlying restructuring proceedings and explains the purpose of, and justification for, pre-insolvency proceedings. It deals with all-important issues such as class composition, cross-class cramdown, and valuation. A comparative analysis and critique of UK schemes of arrangement and the US Chapter 11 procedure is also included, identifying the strengths and weaknesses of each.

Fiduciary Principles in Corporate Law

2019 ◽  
pp. 60-78
Author(s):  
Julian Velasco
Keyword(s):  
Voting Rights ◽  
Corporate Law ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Profit Motive ◽  
Fiduciary Duties ◽  
Common Misconception ◽  
Strict Enforcement ◽  
Default Rules ◽  
Moral Requirements

This chapter examines fiduciary duty in corporate law. Fiduciary duty is pervasive as well as all encompassing in corporate law. One common misconception about fiduciary duty in corporate law is that it is merely aspirational. Fiduciary duties are not simply moral requirements, they are legal ones. They are not merely suggestions, they represent the demands of the law. Although corporate law has often compromised rather than insisting upon strict enforcement of fiduciary law principles, these compromises are due to practical considerations that are entirely consistent with the goals of fiduciary law. In corporate law, general fiduciary law principles are balanced with practical considerations concerning the profit motive in order to achieve the best overall result for the shareholders. Understanding this tension between ambition and practicality is key to understanding fiduciary duty in corporate law. This chapter first considers the triggers for fiduciary duty in corporate law before discussing the role that the duty of loyalty plays in corporate law. It then explores the duty of care in corporate law, along with other fiduciary duties such as good faith, takeover situations and contests for control, shareholder voting rights, and the duty to monitor and the duty to disclose. The chapter proceeds by analyzing mandatory and default rules regarding the extent to which fiduciary duties can be waived in corporate law and concludes with an overview of remedies for breach of fiduciary duty.

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