Lifting the veil of incorporation under common law and statute

2014 ◽  
Vol 56 (1) ◽  
pp. 66-81 ◽  
Author(s):  
Chrispas Nyombi
Keyword(s):  
Design Methodology ◽  
Common Law ◽  
Case Law ◽  
Recent Case ◽  
Full Account ◽  
Content Type ◽  
Statutory Provision ◽  
The Veil ◽  
Corporate Personality

Purpose – The paper examines case law and statutory provisions related to lifting the corporate veil. The aim of the paper is to explore recent case law in order to determine whether courts have moved away from an overly restrictive approach when dealing with cases relating to the corporate personality. To offer a full account of the exceptions to the corporate personality doctrine, this paper also examines cases where the veil of incorporation is lifted due to a breach of a statutory provision. Design/methodology/approach – The paper reviews recent case law and statutory provisions relating to lifting the corporate veil. The paper critically reviews the exceptions to the corporate personality doctrine which amount to lifting the corporate veil. Findings – The paper finds that courts are more willing to lift the corporate veil compared to before. They have moved away from the restrictive approach and this is demonstrated by the tendency to find new exceptions to the corporate personality doctrine such as the interests of justice argument or lifting the veil in tort cases. Originality/value – The paper offers an up-to-date assessment of the exceptions to the corporate personality doctrine and highlights the growing tendency to finding new ways of lifting the corporate veil.

A critique of shareholder primacy under UK takeover law and the continued imposition of the Board Neutrality Rule

2015 ◽  
Vol 57 (4) ◽  
pp. 235-264 ◽  
Author(s):  
Chrispas Nyombi
Keyword(s):  
Design Methodology ◽  
Common Law ◽  
Role Play ◽  
Case Law ◽  
Research Literature ◽  
Company Law ◽  
Shareholder Primacy ◽  
Content Type ◽  
Law And Policy ◽  
Detailed Assessment

Purpose – The purpose of this paper is to determine whether the Board Neutrality Rule and the primacy afforded to shareholders during takeovers is justified under common law and policy. Design/methodology/approach – The paper provides a detailed assessment of the role play by the board neutrality rule and whether this is supported by takeover law and Company law. A review of case law and statutes is provided. The paper is largely analytical. Findings – The paper finds little justification for the continued imposition of the Board Neutrality Rule. Originality/value – The paper adds to the growing body of research literature which has analysed the role played by the Board Neutrality Rule during takeovers.

Formation of contracts for the international sale of goods under Korean law and the CISG

2017 ◽  
Vol 21 (3) ◽  
pp. 208-223
Author(s):  
Byung Mun Lee
Keyword(s):  
Comparative Study ◽  
Design Methodology ◽  
Case Law ◽  
The Other ◽  
Basic Question ◽  
Content Type ◽  
International Sale Of Goods ◽  
The Comparative Study ◽  
International Sales ◽  
Insight Into

Purpose The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law. Design/methodology/approach In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts. Findings The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance. Originality/value This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

The anti-social behaviour, crime and policing act in practice – a practitioner perspective

2016 ◽  
Vol 15 (4) ◽  
pp. 176-182
Author(s):  
Kirsty Varley
Keyword(s):  
Social Housing ◽  
Social Behaviour ◽  
Design Methodology ◽  
Case Law ◽  
Press Coverage ◽  
Content Type ◽  
Insight Into ◽  
The Way

Purpose The purpose of this paper is to offer a practitioner’s perspective to the Anti-Social Behaviour Crime and Policing Act 2014. Many of the new sections are now in force and three in particular have been of interest to me in the last 12-18 months. Design/methodology/approach The paper is written on the basis of the author’s own knowledge, experience and cases that the author has dealt with under the new legislation. Where cases have been published the author has included the relevant links to press coverage. Findings The financial limitations upon registered provides of social housing (RPs) will affect the way in which they conduct litigation and so might mean that RPs are less likely to want to take risks in court. The new grounds have not faced meaningful challenge yet, and so their use might be limited until case law is developed and settled to provide more certainty in this area. Originality/value The perspective is the author’s own and has been written solely by the author for this specific purpose. It is hoped that this will offer insight into the development of anti-social behaviour/housing law and how practitioners view the changes now that they are in force.

3. Lifting the veil

Company Law ◽  
2020 ◽  
pp. 29-50
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Limited Liability ◽  
Recent Case ◽  
Personal Injury ◽  
Costs And Benefits ◽  
The Core ◽  
The Subject ◽  
The Veil ◽  
Group Structures ◽  
Case Development ◽  
Corporate Personality

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 ‘lifting the veil’, a phrase that refers to situations where the judiciary or the legislature have decided that the separation of corporate personality from the members must not be maintained. In this case, the veil of incorporation is said to be lifted. ‘Lifting’ is also known as ‘peeping’, ‘penetrating’, ‘piercing’, or ‘parting’. The chapter presents statutory examples of veil lifting, many of which involve corporate group structures and others involve straightforward shareholder limitation of liability issues. It also considers cases of veil lifting by the courts as well as classical veil lifting during the periods of 1897 to 1966, 1966 to 1989, and 1989 to the present. Three cases are highlighted: Adams v Cape Industries (1990), Chandler v Cape Plc (2012), and Prest v Petrodel Industries Ltd (2013) as well as important recent case development. The chapter also examines claims of tortious liability, the liability of a parent company for personal injury, and commercial tort. Finally, it looks at the costs and benefits of limited liability.

Money laundering control in Tanzania

2019 ◽  
Vol 22 (4) ◽  
pp. 796-835
Author(s):  
Eugene E. Mniwasa
Keyword(s):  
Money Laundering ◽  
Design Methodology ◽  
Case Law ◽  
Legal Framework ◽  
Law And Literature ◽  
Policy Documents ◽  
Content Type ◽  
Enabling Environment ◽  
Banking Institutions ◽  
Political Economic

Purpose This paper aims to examine how banks in Tanzania have been vulnerable to money laundering activities and how the banking institutions have been implicated in enabling or aiding the commission of money laundering offences, and highlights the banks’ failure or inability to prevent, detect and thwart money laundering committed through their financial systems. Design/methodology/approach The paper explores Tanzania’s anti-money laundering law and analyzes non-law factors that make the banks exposed to money laundering activities. It looks at law-related, political and economic circumstances that impinge on the banks’ efficacy to tackle money laundering offences committed through their systems. The data are sourced from policy documents, statutes, case law and literature from Tanzania and other jurisdictions. Findings Both law-related and non-law factors create an enabling environment for the commission of money laundering offences, and this exposes banks in Tanzania to money laundering activities. Some banks have been implicated in enabling or aiding money laundering offences. These banks have abdicated their obligations to fight against money laundering. This is attributed to the fact that the banks’ internal anti-money laundering policies, regulations and procedures are inefficient, and Tanzania’s legal framework is generally ineffective to tackle money laundering offences. Originality/value This paper uncovers a multi-faceted nature of money laundering affecting banks in Tanzania. It is recommended that Tanzania’s anti-money laundering policy should address law-related, political, economic and other factors that create an enabling environment for the commission of money laundering offences. Tanzania’s anti-money laundering law should be reformed to enhance its efficacy and, lastly, banks should reinforce their internal anti-money laundering policies and regulations and policies.

What every employer needs to know about I-9 audits

2019 ◽  
Vol 18 (2) ◽  
pp. 71-75
Author(s):  
Robert Basso
Keyword(s):  
Design Methodology ◽  
Practical Experience ◽  
Business Owners ◽  
Recent Case ◽  
Content Type ◽  
Staff Members ◽  
The Difference ◽  
Immigration And Customs Enforcement ◽  
File Folder ◽  
New Hires

Purpose This paper aims to put I-9 audit and its compliance into perspective for employers. The paper explains what an I-9 audit is, what it means for employers, who is responsible for maintaining its forms, types of businesses most targeted for I-9 audits, what happens when notified that one is being audited, what type and how much penalties does a business incur if it fails to comply, the difference between technical and substantive violations, factors that Immigration and Customs Enforcement considers for determining penalty amounts against employers, what businesses should do if targeted with I-9 audit, business owners’ I-9 audit rights and how to proactively avoid being targeted by an I-9 audit. Design/methodology/approach The content of this paper was generated through practical experience, interaction with corporate entities and HR staff members, as well as industry knowledge and observations. Findings Every audit is different. It should be expected that all details be examined closely. In the recent case of a business subjected to an I-9 audit, auditors closely examined details of sections 1 and 2 of the I-9 forms for all new hires but did not examine section 3 for re-hires. This reinforces the importance of employers keeping careful track of records for all new hires. All employee I-9 forms should be filed together in a binder or file folder separately from employees’ HR file. While re-hires were not examined, this is no excuse for not properly re-verifying and tracking this information. Originality/value This paper was developed because of the interactions with companies that are facing the issue of I-9 audits. The author developed his responses to help HR leaders and managers better understand and address the challenges as well as the process associated with I-9 audits.

scholarly journals E-conveyancing: a consideration of its risks and rewards

2019 ◽  
Vol 38 (1) ◽  
pp. 25-36
Author(s):  
Lucy Cradduck
Keyword(s):  
Design Methodology ◽  
Case Law ◽  
Legal Research ◽  
Policy Documents ◽  
Content Type ◽  
Legal Risk ◽  
Academic Literature

Purpose The purpose of this paper is to examine current Australian e-conveyancing processes to identify its rewards and the risks requiring specific attention in order to protect consumers and ensure ongoing trust in the system. Design/methodology/approach Doctrinal legal research engaging with statutory and precedential case law; related policy documents and governmental agreements; academic and other related writings; news materials and Property Exchange of Australia documentation. Findings E-conveyancing rewards have received greater understanding than the inherent risks, which needs to be corrected by educating users and consumers. Originality/value The research adds to the academic literature in this emerging area of legal risk.

Is mental capacity in the eye of the beholder?

2017 ◽  
Vol 11 (2) ◽  
pp. 30-39 ◽  
Author(s):  
Alex Ruck Keene
Keyword(s):  
International Law ◽  
Design Methodology ◽  
Case Law ◽  
Mental Capacity ◽  
Persons With Disabilities ◽  
England And Wales ◽  
Content Type ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act

Purpose The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity. Design/methodology/approach Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”). Findings It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Research limitations/implications It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Originality/value This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.

Liability in negligence for building defects in Ireland, England and Australia

2017 ◽  
Vol 9 (3) ◽  
pp. 178-192
Author(s):  
Deirdre Ní Fhloinn
Keyword(s):  
Design Methodology ◽  
Common Law ◽  
Economic Loss ◽  
Legal Environment ◽  
England And Wales ◽  
Content Type ◽  
The Common ◽  
The Cross

Purpose The purpose of this paper is to consider decisions of the courts of three jurisdictions: Ireland; England and Wales; and Australia, in relation to recovery of economic loss in negligence for building defects and to identify the extent to which the legal environment of each jurisdiction has informed the approach of the courts to the issue. Design/methodology/approach The approach taken for this purpose is to review the extent of legislative intervention in each jurisdiction to provide measures of protection for home buyers, and whether that intervention has limited the scope of what may be recovered in negligence for defects. Findings The findings of the research indicate that the retreat from recovery for defects, led by the courts of England and Wales through a series of cases in the 1980s and 1990s, may be regarded in part as a product of their environment, and that legislative intervention in the area of remedies acted as a limitation on the scope of the duties that the courts were prepared to impose. Originality/value Although the issue of recovery for building defects in negligence has been covered extensively in the literature and jurisprudence, the cross-referencing of the common law position with the legislative context in the jurisdictions considered provides insights into the approaches of courts and why the position of the courts of England and Wales may not transpose comfortably to other jurisdictions.

scholarly journals Contra trading in Bursa Malaysia Securities Berhad: a Sharīʿah and legal appraisal

2017 ◽  
Vol 9 (2) ◽  
pp. 200-204 ◽  
Author(s):  
Noor Suhaida Kasri ◽  
Burhanuddin Lukman
Keyword(s):  
Design Methodology ◽  
Common Law ◽  
Critical Examination ◽  
Quantitative Investigation ◽  
Content Type ◽  
The Public ◽  
Research Areas ◽  
Legal Literature ◽  
Long Run ◽  
Qualitative Research Methodology

Purpose The purpose of this paper is to analyze the practice of contra trading in Bursa Malaysia Securities Berhad. Through a critical examination of the practice, it aims to discuss the issues from the angles of Sharīʿah and Malaysian common law. Design/methodology/approach The paper uses a qualitative research methodology. The information on the practice of contra trading is obtained through the Bursa Malaysia Securities Berhad’s website and literature as well as series of meetings and discussions held with Bursa Malaysia Securities Berhad. In comprehending and dissecting the Sharīʿah and legal issues, classical along with contemporary Sharīʿah literature including local and international Sharīʿah advisory bodies’ resolutions and standards have been referred to. The Sharīʿah analysis of these issues is further supported by reference to the statute and by-laws of Bursa Malaysia Securities Berhad as well as other related legal literature. Findings This paper finds that contra trading involves a real sale and purchase of shares; the shares are not taken into the possession of the contra trader, neither physically nor constructively; the liability of shares is not transferred to the contra trader; though the practice of profiting in contra trading may contradict the prohibition on profiting without bearing liability, the permissibility of contra trading could still be argued from the contextual approach of public interest (maṣlaḥah) and needs (hājah); and contra trading is not gambling. Research limitations/implications This paper is limited in its analysis to only Sharīʿah and legal perspectives. It does not cover a thorough empirical and quantitative investigation that would measure the extent of the public needs for contra trading and the real benefits that contra trading brings about to the society in the long run. Such studies will further demonstrate whether contra trading deserves a relaxation from the strict Sharīʿah ruling thus affirming the issue of permissibility of contra trading. Moving forward, this paper recommends ways to address the predicaments faced in the contra trading practices as well important research areas that could be taken up in future. Originality/value This paper provides an in-depth investigation of the practice of contra trading at the Bursa Malaysia Securities Berhad from the angles of Sharīʿah and common law.

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