scholarly journals Trends and Development of the Directors’ Duty of Loyalty in China: A Case Analysis

2021 ◽  
Vol 13 (15) ◽  
pp. 8589
Author(s):  
Shuangge Wen ◽  
Jingchen Zhao
Keyword(s):  
Chinese Culture ◽  
Common Law ◽  
Corporate Law ◽  
Ample Evidence ◽  
Host Environment ◽  
Opportune Time ◽  
Company Directors ◽  
Legal Transplantation ◽  
The Common ◽  
Duty Of Loyalty

Covering a central theme in corporate law development, this paper discusses the pragmatic utility of the common-law-originated duty of loyalty of company directors in the civil law context of China. The reception of legal transplantation in a host environment remains a contentious theme, and it seems to be an opportune time to study relevant cases that have been adjudicated since China’s statutory inauguration of the directors’ duty of loyalty in 2005, in the sense that more than 10 years of practice has resulted in ample evidence on the practical effects of this transplanted duty. Through an analysis of 526 cases on the basis of eight attributes, we discovered some commendable features, including increasing accessibility of the law and a differentiation of various types of directors’ duties of loyalty. Meanwhile, the selective adoption norm customary to Chinese culture has to a certain extent compromised the intended goals of greater legislative clarity, judicial consistency and in turn balanced and sustainable businesses, demonstrated in several incompatibilities between transplanted duties and domestic legal institutions. Reshaping the conventional transplantation ideal that commercial laws are easily transferable, the paper suggests the construction of a broad collateral regime for greater congruence between laws and existing institutions.

10. Company law II: directors, finance, and capital

2019 ◽  
pp. 143-159
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Company Law ◽  
Public Companies ◽  
Essential Information ◽  
Minority Protection ◽  
Company Directors ◽  
The Common ◽  
The Law ◽  
A Company

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the law governing company directors and shareholders. The common law duties on directors have been codified and expanded through the Companies Act (CA) 2006. Directors are responsible to the company itself, not to individual shareholders. Minority protection (of shareholders) is provided through the CA 2006 to restrict directors’ acts that may unfairly disadvantage them. Public companies must have a company secretary and they must satisfy statutory requirements in relation to their qualifications. Shareholders have no automatic right of management in the company although, through attendance and the rights to vote at shareholder meetings, they may have influence over the business conducted.

Liability in oil and gas: what happened in the case of Deepwater Horizon?

2011 ◽  
Vol 51 (2) ◽  
pp. 668
Author(s):  
Leanne McClurg
Keyword(s):  
Oil And Gas ◽  
Common Law ◽  
Oil And Gas Industry ◽  
Deepwater Horizon ◽  
Gas Industry ◽  
The Us ◽  
Opportune Time ◽  
The Common ◽  
Us Senate ◽  
Oil Rig

Disasters such as the explosion of the Deepwater Horizon oil rig and the consequential pollution in the Gulf of Mexico have heightened awareness surrounding liability for such events. It is an opportune time for all companies—whether owners, operators or contractors—to closely examine their contracting regimes to ensure their interests are protected to the maximum extent possible. It is commercial reality in all industries that parties negotiating contracts seek to limit their liability. Unique to the oil and gas industry, contracts for services usually contain reciprocal indemnities, often referred to as knock for knock clauses, where each party is responsible for loss or damage to its own people and property, regardless of the cause. Such clauses have the effect of altering the common law position where liability is usually based on the cause of any loss or damage. In this session the speaker discusses some tips and traps for drafting reciprocal indemnity clauses, and looks at how they have been interpreted by the courts. Consideration is given to how an incident like Deepwater Horizon would be treated if it occurred in Australia and an update on the US Senate Committee’s inquiry into the disaster is provided.

1. Introduction to Equity

2019 ◽  
pp. 3-22
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
Property Rights ◽  
Common Law ◽  
Corporate Law ◽  
The Body ◽  
Judicial Discretion ◽  
Fair Result ◽  
Personal Rights ◽  
The Common ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the concept of Equity and defines it as the body of law that has been made and developed by judges in the Chancery courts to modify the rigid application of the common law. It is grounded on rules, principles, and doctrines that are strictly interpreted, but their application and the remedies awarded can be tempered by the exercise of judicial discretion to ensure a just and fair result. It plays an important role in many contemporary aspects of the law, including commercial and corporate law. A distinction between property rights and personal rights lie at the heart of Equity, and there exists no substantive fusion between Common Law and Equity as bodies of rules — even if their administration has been conjoined into a single procedural system. The chapter also discusses a variety of equitable maxims that are useful generalizations of complex law.

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

2021 ◽  
Vol 138 (3) ◽  
pp. 508-521
Author(s):  
Tshepo H Mongalo
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
Common Law ◽  
Corporate Law ◽  
Constitutional Court ◽  
Statutory Interpretation ◽  
Policy Makers ◽  
The Supreme Court ◽  
The Common ◽  
Court Of Appeal

This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.

Transpanting the Unidroit Contract Principles into the Qatar Financial Center: a fresh paradigm for wholesale legal transplants?

2021 ◽  
Author(s):  
Ilias Bantekas
Keyword(s):  
Public Policy ◽  
Legal System ◽  
Islamic Law ◽  
Common Law ◽  
Contract Law ◽  
Minor Role ◽  
Legal Transplantation ◽  
The Common ◽  
Financial Center ◽  
Economic Zones

Abstract The Qatar Financial Center (QFC) decided to adopt a set of Contract Regulations that are effectively the equivalent of its contracts statute. The QFC does not have a civil code. The Regulations are largely predicated on the Unidroit Principles of International Commercial Contracts (PICC). Even so, its drafters introduced, in addition, elements peculiar to the common law of contracts that are not found in the PICC, and the QFC Court, which is largely composed of a common law-inclined bench, has made it clear in many of its cases that common law judgments and English statutes can and will serve as authority in the interpretation of the Contract Regulations. The situation is further complicated by the fact that the Regulations are meant to apply in a broader legal system (that of Qatar), which recognizes several elements of Islamic law in the context of public policy—although generally Islamic law plays a very minor role, if at all, in the ordinary Qatari law of contracts. Despite the complexity underlying the Contract Regulations, its relevant success—to date—is firmly premised on the fact that the process of legal transplantation was not undertaken in a vacuum, but, rather, it is a ‘living instrument’ that is acceptable and, above all, useful to its stakeholders. Much like other contract law-related legal transplants taking root in other special economic zones, so too the QFC Contract Regulations represent an excellent paradigm as to how wholesale legal transplants can be undertaken.

On Analyzing The Law of Legal Ethics: An American Perspective

1981 ◽  
Vol 16 (1) ◽  
pp. 28-39 ◽  
Author(s):  
L. Ray Patterson
Keyword(s):  
Code Of Ethics ◽  
Common Law ◽  
Codes Of Ethics ◽  
Undesirable Effect ◽  
Legal Ethics ◽  
Ethical Problems ◽  
American Perspective ◽  
Adversary System ◽  
The Common ◽  
Duty Of Loyalty

My purpose in this paper is to present some propositions relevant to the analysis of legal ethical problems. In working my way to those propositions, however, I shall first discuss the need for them and explain why I deem them to be important.My basic thesis is that historically the profession's codes of ethics constituted a jurisprudential anomaly with two unfortunate consequences. First, they had an undesirable effect on the conduct of lawyers in the representation of their clients. Second, and more importantly, they served to impede the development of a satisfactory law of legal ethics.The first proposition is more difficult to establish than the second and I do not propose to dwell on it. But, if you accept the notion that lawyers have used their duty of loyalty to the client to arrogate to themselves the power of acting in accordance with the client's wishes regardless of the consequences to society or to others, I think you will agree with the point. This is not to say that lawyers always exercise that power, and few lawyers, I think, take seriously Lord Brougham's infamous dictum that an advocate “must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other” in defense of his client. But the fact that the dictum lives on tells us something about the lawyer's perception of his duty of loyalty. Ultimately, I suppose, the notion of the lawyer's duty of loyalty to the client must be attributed to the common law adversary system of trial, but the duty received its most fulsome expression in the profession's code of ethics. Courts never gave loyalty the imprimatur of approval that the profession stamped on it with the rules of ethics.

Pre-incorporation contract: A comparative analysis of the Canadian and Nigerian corporate law regimes

2021 ◽  
Vol 3 (1) ◽  
pp. 29-42
Author(s):  
Wiseman Ubochioma
Keyword(s):  
Comparative Analysis ◽  
Common Law ◽  
Corporate Law ◽  
Third Party ◽  
Legal Regimes ◽  
The Common ◽  
A Company

The question of how best to protect the interests of a promoter, a third party, and a company in pre-incorporation contracts is one that seems to have defied corporate law. Although this problem has its origin in common law, various countries have made efforts to address it through statutory reforms. The paper, therefore, examines the extent to which the Canadian and Nigerian legal regimes for the pre-incorporation contract have provided panaceas to the problem. This paper, through a comparative analysis, argues that although the legal regimes have made efforts to reform the common law rule on pre-incorporation contracts, they suffer patent defects. It also posits that notwithstanding the defects in the laws, the Canadian legal regimes offer more protection to parties to pre-incorporation contracts than Nigerian law. The paper suggests reforms in both regimes that would meet the reasonable expectations of the parties to a pre incorporation contract

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