Directors’ Duties

2020 ◽  
pp. 175-222
Author(s):  
Paul Davies
Keyword(s):  
Conflict Of Interest ◽  
Company Law ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
The Core ◽  
The Law ◽  
Duty Of Loyalty ◽  
Substantive Law

This chapter examines the law on directors’ duties, as restated in the Companies Act 2006, other than the core duty of loyalty which is discussed in Chapter 2. It covers the duty of care, the duty to act within powers, the duty to exercise independent judgement, and, most importantly, the application of fiduciary duties to various types of conflict of interest. Many of the most interesting doctrinal questions about company law arise in this area and it is righly placed at the center of many company law courses. However, it may that other sets of rules, discussed in earlier chapters, are more important in practice in the regulation of internal company relations. In addition to the substantive law, the remedies available in respect of breaches are analysed, as is the freedom of shareholders to waive breaches of duty, both after and before the event.

6. Directors’ Duties

2020 ◽  
pp. 175-222
Author(s):  
Paul Davies
Keyword(s):  
Conflict Of Interest ◽  
Company Law ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
The Core ◽  
The Law ◽  
Duty Of Loyalty ◽  
Substantive Law

This chapter examines the law on directors’ duties, as restated in the Companies Act 2006, other than the core duty of loyalty which is discussed in Chapter 2. It covers the duty of care, the duty to act within powers, the duty to exercise independent judgement, and, most importantly, the application of fiduciary duties to various types of conflict of interest. Many of the most interesting doctrinal questions about company law arise in this area and it is righly placed at the center of many company law courses. However, it may that other sets of rules, discussed in earlier chapters, are more important in practice in the regulation of internal company relations. In addition to the substantive law, the remedies available in respect of breaches are analysed, as is the freedom of shareholders to waive breaches of duty, both after and before the event.

Fiduciary Law as Equity’s Child

Equity ◽  
2018 ◽  
pp. 113-151
Author(s):  
Irit Samet
Keyword(s):  
Common Law ◽  
Legal Reasoning ◽  
Active Role ◽  
Fiduciary Duties ◽  
Contractual Obligation ◽  
The Law ◽  
Duty Of Loyalty ◽  
Contractual Obligations ◽  
The Relationship ◽  
The Way

This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. The chapter first considers the ‘contractarian’ interpretation of fiduciary law according to which fiduciary duties are no more than a species of contractual obligations before explaining why, in contrast with the contractarian argument, Equity was right in claiming that the fiduciary relationship was essentially different from contract. After making the case of why fiduciary law should be treated as a sui generis equitable doctrine, the chapter examines two features of equitable fiduciary law that will change dramatically if the fusion suggestion is adopted (the language in which it is set and the way into the relationship) and shows the adverse consequences of moving in that direction. It concludes with the contention that the concept of ‘conscience’ still has an active role to play in the legal reasoning about fiduciaries.

The Fiduciary Duty of Care

2019 ◽  
pp. 403-418 ◽  
Author(s):  
John C. P. Goldberg
Keyword(s):  
Tort Law ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Private Law ◽  
Fiduciary Duties ◽  
Distinctive Features ◽  
Duty Of Loyalty

Fiduciary duties of care are at once familiar and strange. They partake of many of the characteristics of duties of care in other domains of private law, particularly tort law. But they also bear the distinctive marks of the fiduciary context. This chapter identifies two ways in which fiduciary duties of care tend to be distinct from tort duties of care. First, with some important exceptions, they are less demanding and less vigorously enforced. Second, breaches of the fiduciary duty of care can give rise to liability even if no injury results to the beneficiary. These distinctive features, the chapter argues, reflect judicial efforts to harmonize the fiduciary’s duty of care with her duty of loyalty. As such, they are defensible, even if not in all respects justified.

13. The law governing fiduciaries

2019 ◽  
pp. 384-428
Author(s):  
JE Penner
Keyword(s):  
Basic Rule ◽  
Fiduciary Duties ◽  
Conflict Rule ◽  
Fair Dealing ◽  
The Core ◽  
Personal Nature ◽  
The Subject ◽  
The Law ◽  
Secondary Liability

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the nature and scope of fiduciary duties. It begins by considering the ‘no conflict’ rule, the basic rule governing fiduciaries. Under the rule, a fiduciary is liable to account for any profit he obtains in circumstances where his interests may conflict with his duty to his principal. It then turns to rules governing authorised profits; unauthorised profits and the liability to account for them; self-dealing and fair dealing rules; the proprietary and personal nature of the liability to account; equitable compensation for breach of fiduciary obligation; and secondary liability for breach of fiduciary obligation.

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.

8. The constitution of the company: dealing with insiders

2018 ◽  
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Company Law ◽  
The Core ◽  
Steering Group ◽  
The Subject ◽  
Corporate Theory ◽  
The Law

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the constitution of the company, with emphasis on the articles of association. It first outlines the operation of the memorandum and the articles before turning to the law surrounding the contract of membership under s 33 of the Companies Act 2006. It then considers some elements of corporate theory in relation to the articles of association, contract between the company and the members, contract between the members, the question of who is entitled to sue to enforce the s 33 contract, and the issue of outsider rights with respect to the s 33 contract. The chapter also looks at the reforms proposed by the Company Law Review Steering Group for the Companies Act 2006 and concludes by analysing the effects of shareholder agreements on the statutory obligation of the company.

8. The constitution of the company: dealing with insiders

2016 ◽  
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Company Law ◽  
The Core ◽  
Steering Group ◽  
The Subject ◽  
Corporate Theory ◽  
The Law

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the constitution of the company, with emphasis on the articles of association. It first outlines the operation of the memorandum and the articles before turning to the law surrounding the contract of membership under s 33 of the Companies Act 2006. It then considers some elements of corporate theory in relation to the articles of association, contract between the company and the members, contract between the members, the question of who is entitled to sue to enforce the s 33 contract, and the issue of outsider rights with respect to the s 33 contract. The chapter also looks at the reforms proposed by the Company Law Review Steering Group for the Companies Act 2006 and concludes by analysing the effects of shareholder agreements on the statutory obligation of the company.

8. The constitution of the company: dealing with insiders

Company Law ◽  
2020 ◽  
pp. 144-163
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Company Law ◽  
The Core ◽  
Steering Group ◽  
The Subject ◽  
Corporate Theory ◽  
The Law

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the constitution of the company, with emphasis on the articles of association. It first outlines the operation of the memorandum and the articles before turning to the law surrounding the contract of membership under s 33 of the Companies Act 2006. It then considers some elements of corporate theory in relation to the articles of association, contract between the company and the members, contract between the members, the question of who is entitled to sue to enforce the s 33 contract, and the issue of outsider rights with respect to the s 33 contract. The chapter also looks at the historical reforms proposed by the Company Law Review Steering Group for the Companies Act 2006 and concludes by analysing the effects of shareholder agreements on the statutory obligation of the company.

7. Relations between principal and agent

2020 ◽  
pp. 209-273
Author(s):  
D Fox ◽  
RJC Munday ◽  
B Soyer ◽  
AM Tettenborn ◽  
PG Turner
Keyword(s):  
Duty Of Care ◽  
Fiduciary Duties ◽  
Detailed Consideration ◽  
The Law

This chapter focuses on the rights and obligations of the principal and the agent between themselves, whether arising from a contract between them or from the fiduciary nature of their relationship. However, those rights and obligations may also derive from other sources, for example tort, statute, or the law of restitution. There is detailed consideration of the duties of the agent, such as the duty of care and skill and fiduciary duties, as well as the rights relating to remuneration, reimbursement and indemnity, and lien. The chapter also discusses the ways by which agency may be terminated.

Fiduciary Principles in Fact-Based Fiduciary Relationships

2019 ◽  
pp. 1-22
Author(s):  
Daniel B. Kelly
Keyword(s):  
Ad Hoc ◽  
Good Faith ◽  
Fiduciary Duties ◽  
Legal Obligations ◽  
Wide Range ◽  
The Law ◽  
Fiduciary Relationships ◽  
Default Rules ◽  
Substantive Law ◽  
The Relationship

This chapter examines how courts apply fiduciary principles when a fiduciary relationship is based on the particular facts of a case. In a fact-based fiduciary relationship, a court must analyze the facts and circumstances of a case to determine if a party is a fiduciary. To determine whether a fact-based fiduciary relationship exists, litigants and courts have invoked a wide range of criteria. In this regard, a number of questions arise. For example, what criteria do courts utilize in evaluating fact-based fiduciaries? Given that most fiduciary relationships are based on status, why are both fact-based and status-based fiduciaries recognized by law? Is the substantive law that applies to fact-based fiduciaries equivalent or analogous to the law that applies to status-based fiduciaries. This chapter begins with a discussion of the triggers for fact-based fiduciary relationships, giving emphasis on factors that courts take into account in making ad hoc fiduciary determinations as well as the relationship between fact-based and status-based fiduciary relationships. It also explains why courts may recognize fact-based fiduciaries in certain limited circumstances before analyzing the fiduciary duties within fact-based fiduciary relationships, including the duties of loyalty and care along with other legal obligations such as confidentiality, good faith, and disclosure. After exploring the issue of mandatory and default rules in fact-based fiduciary relationships, including whether parties can waive or modify fiduciary principles, the chapter concludes by addressing remedies in fact-based fiduciary relationships.

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