The OHADA Company Law and de facto companies

2020 ◽  
Author(s):  
Medret Lekunga Ndangoh
Keyword(s):  
Joint Ventures ◽  
Third Parties ◽  
Corporate Law ◽  
Company Law ◽  
Legal Entities ◽  
Business Relations

Abstract The propagation of de facto companies in the Organization for the Harmonization of Corporate Law in Africa’s (OHADA) Uniform Act on Company Law is so evident that it cannot be neglected. Some are permitted by the legislator (joint ventures) and others impose themselves (sociétés de fait and sociétés créées de faits). Contrary to other fields of law that reject factual situations, the OHADA Uniform Act on Company Law receives de facto companies and submits them to rules naturally meant for legal companies or legal entities. The purpose of this article is to determine the position of the OHADA Company Law with regard to the invasion of company law by de facto companies. A study of the Uniform Act on Company Law has revealed that de facto companies are recognized and treated as legal entities. We believe that the essence of this recognition is linked to the OHADA legislator’s desire to attain his or her objectives—namely, to secure business relations that can only be possible through the protection of the business, the interest of its partners, and even the interest of third parties.

scholarly journals Corporations in Ukrainian Law

Legal Ukraine ◽  
2020 ◽  
pp. 26-35
Author(s):  
Keyword(s):  
Property Rights ◽  
Legal System ◽  
Civil Code ◽  
Corporate Law ◽  
Company Law ◽  
Legal Concept ◽  
Legal Entity ◽  
Corporate Rights ◽  
General Sign ◽  
Legal Entities

This article deals with the special development of the company (or rather corporate) law in Ukrainian legal system. The current legislation does not set the concept of corporation. As a result, the consept «corporation» is the center of the scientific discussions. Judicial practice forms different conceptions of the concept «corporation» also. At the same time, the concept «corporation» is the general element of the company law development in the future. The legal concept of the corporate relationships forms one their general sign only. The object of these relationships is the corporate rights. The form of the legal entity predetermines the maintenance of the corporate rights. Thus, the list of subjects is the criterion for the corporate nature of the relationships. The maintenance of the concept «corporation» is different in the world legal systems. Thus, the implementation of this concept into our legal system is the difficult process. Being in past the post social state, Ukraine did not have the company (or corporate) law. The modern Ukrainian legislation has a high level of dynamics. It adapts to the necessities of modern society. All mentioned above circumstances need special criteria. Such criteria should form the maintenance of the concept «corporation». They are the most difficult problem. The main reasons of this situation are: the existence of two codes – Civil Code and Commercial Code; the existence of a lot of special legal acts. As a result, there are a lot of ways for understanding of the concept «corporation» in Ukrainian science: from some forms of the companies to all legal entities. The corporate relationships have got one general sign – the special legal connection between legal entity and it’s membership. Such connection is the nature of the corporation. The scientists formed a lot of signs of the corporation. For example, general social aim, association of persons and capitals, existence of property and non property rights for participants. The most of these signs are in all legal entities. At the same time, mentioned above list includes one special sign — the existence not only non property rights, but property rights too. The participants of the non-entrepreneurial legal entities have not property rights. It is not exists the property connection between the non-entrepreneurial legal entity and participants. What does the nature of the entrepreneurial legal entity? The aim to get the income it is not sufficient sign for entrepreneurial legal entity. According to provisions of the Civil Code, non-entrepreneurial legal entity may also to get income. All legal entities may get some income from activity in modern economic relationships. The nature of the entrepreneurial legal entities — distribution of income between the participants. As a result, participants of such legal entities have got full list of the corporate rights (including property and non-property rights). Thus, the corporate legal nature is the main feature for the entrepreneurial legal entity. Key words: corporation, legal entity, incom, corporate rights, entrepreneurial legal entity.

An Economic and Jurisprudential Genealogy of Corporate Law. By Michael J. Whincop. [Aldershot: Ashgate. 2001. xviii, 222, (Bibliography) 20 and (Index) 5 pp. Hardback £45. ISBN 1–84014–773–3.]

2002 ◽  
Vol 61 (2) ◽  
pp. 463-492
Author(s):  
John Armour
Keyword(s):  
Corporate Law ◽  
Company Law ◽  
Economic Methodology ◽  
Evolutionary Account ◽  
High Profile ◽  
Intuitive Appeal ◽  
History Of ◽  
The Law

Economic analysis has recently gained a high profile in English company law scholarship, not least through its employment by the Law Commissions and its resonance with the Company Law Review. This approach has taught us much about how company law functions in relation to the marketplace. Whincop’s book is, however, the first attempt to use economic methodology not only to explain how the law functions, but also to provide an evolutionary account of why the history of English company law followed the path it did. The result is a thesis that, whilst complex, has a powerful intuitive appeal for those familiar with Victorian company law judgments.

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.

Corporate Personality

2021 ◽  
pp. 37-47
Author(s):  
Eva Micheler
Keyword(s):  
Third Parties ◽  
Company Law ◽  
Organizational Boundaries ◽  
Legal Personality ◽  
Corporate Form ◽  
Organizational Action ◽  
To Come ◽  
A Company ◽  
Corporate Personality

This chapter discusses how separate legal personality can be explained as a solution developed by company law to address the problem that organizations are social rather than brute facts. For a company to come into existence, certain documents need to be registered. These contain information that facilitates the interaction between the company and third parties. Registration as a company then gives an organization a public legal manifestation. The Companies Act does not limit the corporate form to organizational action. The corporate form can therefore be used for other purposes and organizational boundaries do not align with legal personality. But this does not undermine the observation that company law is designed for the operation of organizations.

Access to information in joint ventures: the dangers of being kept in the dark

2016 ◽  
Vol 56 (2) ◽  
pp. 560
Author(s):  
Anne Freeman
Keyword(s):  
Joint Ventures ◽  
Joint Venture ◽  
Federal Court ◽  
Third Parties ◽  
Access To Information ◽  
Fiduciary Duties ◽  
Technical Data

Operators of joint ventures have, by reason of their position, first-hand access to all information relating to the joint venture, including financial results, technical data, and documents relating to relationships with third parties and contractors. Non-operators regularly strike difficulty in obtaining all the information they need in relation to the affairs of joint ventures, especially if a dispute is emerging between participants in it. This extended abstract explores various mechanisms for non-operators to obtain joint venture records, including express provisions in the joint venture agreement itself, and the potential to argue that there should be a right to obtain records implied into the agreement. Other potential mechanisms will also be canvassed, including the assertion of fiduciary duties owed by the operator that might provide the non-operator with rights to obtain information. In the 2013 decision of Alliance Craton Explorer v Quasar Resources, the Full Court of the Federal Court considered a joint venture agreement that did not explicitly provide access to the non-operator records of the joint venture. The court refused to imply a term providing access to the records, and dismissed arguments by the non-operator that the operator was its agent and that the non-operator had proprietary rights to the information it sought. This extended abstract discusses the implications of this decision.

scholarly journals On the Improvement of China’s Legal System of Foreign Direct Investment

2015 ◽  
Vol 8 (4) ◽  
pp. 293 ◽  
Author(s):  
Shu-Xue Jia
Keyword(s):  
Foreign Direct Investment ◽  
Legal System ◽  
Foreign Investment ◽  
Joint Ventures ◽  
Direct Investment ◽  
Local Level ◽  
Company Law ◽  
Operation Duration ◽  
Chinese Company ◽  
Foreign Investment Enterprises

China has not enacted unified foreign direct investment code, and the legal system of foreign direct investment is composed of separate laws and numerous regulations and rules at both national and local level. The establishment of all foreign investment enterprises in China is subject to examination and approval of relevant authorities, only after which enterprises can be registered. The operation duration of equity joint ventures, contractual joint ventures and solely foreign-founded enterprises shall comply with relevant provisions of Chinese laws. The operation duration and disillusion of foreign-invested stock joint limited companies are subject to Chinese Company Law. The 2-track legislation model, under which foreign investment enterprises and domestic enterprises are governed by different laws and regulations, caused conflicts among different laws and difficulties in application of laws. To overcome the defaults China must enact unified law on foreign direct investment.

Controlling corporate management: UK and US initiatives

Legal Studies ◽  
1994 ◽  
Vol 14 (2) ◽  
pp. 244-265 ◽  
Author(s):  
C. A. Riley
Keyword(s):  
Financial Performance ◽  
Corporate Law ◽  
Company Law ◽  
Corporate Management ◽  
Political Climate ◽  
Share Ownership ◽  
The Uk ◽  
And Control

Corporate law — both in the UK and US — remains preoccupied with the separation of ownership and control. Share ownership, the story runs, has become so dispersed in the larger company that control of its affairs has passed from shareholders to managers. It is assumed that managers will have interests which conflict with those of shareholders and will use their control to further the former at the expense of the latter. The orthodox response has been to stress the paramountcy of shareholder interests and to seek ways of compelling management to advance those interests in preference to their own. The urgency with which these prescriptions for company law have been pursued has rather fluctuated, depending upon the wider economic and political climate within which companies operate. Thus, the take-over activity of the late 1980’s created its own excesses, as in the Guinness affair. The subsequent recession, with its effect on profits, caused further strain, exacerbated by rises in executives’ pay and generous severance awards at times unrelated to the companies’ own financial performance. A number of substantial corporate failures or controversies have provided a further impetus.

scholarly journals ELIMINATING OBSTACLES TO FREEDOM OF ESTABLISHMENT: THE COMPETITIVE EDGE OF UK COMPANY LAW

2004 ◽  
Vol 63 (2) ◽  
pp. 331-345 ◽  
Author(s):  
John Lowry
Keyword(s):  
Creditor Protection ◽  
Corporate Law ◽  
Company Law ◽  
Freedom Of Establishment ◽  
Competitive Edge ◽  
Inspire Art ◽  
Protection Mechanisms

This article examines the implications of the E.C.J.'s decisions in Überseering and Inspire Art against the background of the principal competing theories relating to lex societatis. It considers the tension between freedom of establishment (EC Treaty, arts 43 and 48) and the protective objectives of national corporate law regimes aimed at defeating the so-called Delaware effect. It goes on to argue that significant issues remain unresolved. More particularly, it questions whether creditor protection mechanisms contained in national insolvency laws will, in future, be viewed as obstacles to freedom of establishment.

The Ethical Limits of Trust in Business Relations

1998 ◽  
Vol 8 (2) ◽  
pp. 233-248 ◽  
Author(s):  
Bryan W. Husted
Keyword(s):  
Third Parties ◽  
Economic Organization ◽  
Ethical Theories ◽  
Optimal Form ◽  
Trust Relation ◽  
Ethical Basis ◽  
Business Relations

Abstract:This article defines and analyzes the nature of a trust relation. It specifically examines the internal and external morality of trust relations and the ethical limits of those relations. It examines both the ends pursued by trust relations as well as the means by which trust is developed. It shows that the ends need to be evaluated by traditional ethical theories, while the ethical constraints of the trust process depend upon the specific bases of trust. In addition, the consequences of the trust process differ in their impact on the trustor and third parties. Despite the popularity of trust in the literature, this study recommends caution in the use of trust as an ethical basis for economic organization. The optimal form of trust, although still subject to limitations, is fairness-based trust.

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