A Critical Assessment of Pertinent Locus Standi Features of the Derivative Remedy under Zimbabwe's New Companies and Other Business Entities Act

The importance and contribution of derivative litigation to the effectiveness and credibility of a jurisdiction's corporate governance system is indisputable. There is a positive correlation between good corporate governance practices, which include shareholders’ rights, and investors’ return on their investments. On the one hand, an overly pro-shareholder derivative scheme is vulnerable to abuse and results in unnecessary interference with company management. This may, in turn, discourage directors from entrepreneurial risk-taking and undermine enterprise efficiency. On the other hand, a complex and ineffective system of derivative litigation protects errant directors and decreases investor confidence. This article is a critical assessment of Zimbabwe's recently adopted statutory derivative remedy. The analysis focuses on five locus standi-related aspects of the new statutory derivative regime. The article highlights some major weaknesses within Zimbabwe's statutory remedy and proposes pertinent legislative amendments.

Wpływ braku uznania rządu państwa totalitarnego i autorytarnego na zdolność sądową tego państwa w świetle koncepcji brytyjsko-amerykańskich

Although government recognition is a legal concept of public international law, it interacts with other branches of law, including private international law and international civil procedure. According to the jurisprudence of British and American courts, unrecognized governments do not possess locus standi in civil proceedings in regard to matters which fall within the state dominium. In the mentioned jurisprudence, a doctrine has been formulated according to which judges are bound by the position of their state executive bodies in regard to foreign state and government recognition, which has direct influence on the locus standi of foreign states in the courts of Britain and the United States. The aim of this paper is to present the above rulings, as well as to analyze whether there are grounds for accepting the doctrine which follows from them in Polish civil litigation.

El locus standi de terceros Estados para interponer recurso de anulación contra medidas restrictivas de la UE: el asunto C-872/19 P, Venezuela/Consejo

La sentencia del Tribunal de Justicia de 22 de junio de 2021, Venezuela/Consejo, abre una nueva dimensión en relación con el alcance de los criterios de admisibilidad del art. 263 TFUE, párr. cuarto, puesto que el TJ considera por primera vez que Venezuela, un Estado tercero, debe considerarse «persona jurídica» y por tanto está legitimado —siempre que se cumplan los demás requisitos de admisibilidad— para plantear un recurso de anulación contra medidas restrictivas dirigidas contra él. Según el TJ, esta interpretación es acorde con el principio a la tutela judicial efectiva y el respeto del Estado de Derecho. Además, el interés de este asunto también radica en las argumentaciones en torno al alcance de principios de derecho internacional público como el de reciprocidad y el de inmunidad soberana. Finalmente, el fallo del TJ también permite aventurar la posibilidad de un cambio de paradigma en la elección y adopción de medidas restrictivas por la UE.

Derivative Lawsuit in Ukraine: The Issue of Improving Legal Regulation

Background: Some jurisdictions provide for the right of members of a corporation to sue on its behalf and in its interests. This remedy is called ‘a derivative action’ (derivative lawsuit), and the right to file such a lawsuit is granted to a company’s members in case the wrongdoers are in its control, preventing the company from taking actions to protect its rights and interests – which is detrimental to the interests and rights of minority shareholders. However, derivative lawsuit’s regulation differs in each jurisdiction despite sharing common features, raising a variety of issues to be resolved. Methods: In this article, the author points out several issues and their possible solutions, which could be implemented in Ukrainian legislation: property qualification by itself cannot prevent abuse in filing a derivative lawsuit – extended ‘locus standi’ has to be implemented; holders of preferred shares have to be granted the right to file a derivative lawsuit; property qualification has to be substituted with a representation quota for members of non-entrepreneurial corporations; the circle of defendants should include major members (majority of members) and third parties, etc. Results and Conclusions: The concepts of a preventive derivative lawsuit and a derivative lawsuit for the invalidation of a company’s transaction and possible issues regarding them are analysed. Additionally, the necessity for implementing a ‘business judgement rule’ is emphasised.

Dismantling obstacles impeding better governance in companies: Affirming the expansion of the interpretation of "shareholder and director" under section 163 of the 2008 Act

Impediments to corporate accountability have over the recent years manifested in diverse forms. What took place in Peel v Hamon J&C Engineering (Pty) Ltd is a case in point. The aim of this article is in two forms. First, from the commentaries and cases consulted, it is clear that the character of who must qualify in terms of the section 163 criterion is not settled. Moreover, this can be gleaned from the criticisms against Moshidi J's judgment in Peel for having extended/expanded the section 163 remedy to afford relief to shareholders and directors whom the legislature may not have contemplated to cover under the relief. The aim here is to argue in support of this expansion as promoting accountability. Secondly, it is to make some comments on the criterion that it is only a shareholder and a director who are accorded locus standi to invoke the remedy. From the discussion, the paper makes numerous commendable observations. First, the complaint raised in Peel was not an abuse of process; it was a genuine complaint/application seeking to address genuine and novel issues which often arise between the parties in company law. Second, Moshidi J's judgment demonstrates evolution/progress for its contextual approach to the section 163 remedy's interpretation. The judgment heralds/foreshadows colossal principles/practices within company law aimed at balancing stakeholder interests. Third, the judgment potently disentangles hurdles which normally impede accountability by company directors. Lastly, the paper recommends that other stakeholders be considered for relief under the remedy.

Misuse Of Public Interest Litigation: A Critical Study As How It Is A Major Threat To Judiciary

Regardless of how much advancement PILs have brought to the Indian Judicial framework, we can't unseen the other side of the coin at any expense as PILs are being mishandled a great deal these days alongside its broad and manhandled use. They have brought different traps and downsides as well. Thusly, to keep away from such instances of maltreatment of the PILs, the high court itself set out a definite rule that will be utilized to administer the administration and removal of the PILs. Numerous PIL activists in India have been utilizing the PILs as a helpful apparatus for pestering the legal framework. Since recording PILs is a modest cycle, numerous unimportant cases are being documented with no speculation of heavy court charges which one would typically pay for common prosecution cases. Subsequently, by recording such cases, bargains are haggled to get cash for the said bothered party to get the PILs. The basic clarification for such cases is that any weapon that can be utilized to safeguard oneself can likewise be utilized to assault somebody. Utilizing a similar rationale, one can bring down the Locus Standi prerequisites which license the inspired gatherings to record PILs which could address a public interest matter.

R v Inland Revenue Commissioners, ex parte National Federation of the Self Employed and Small Businesses Ltd [1982] AC 617, House of Lords (also known as Fleet Street Casuals)

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Inland Revenue Commissioners, ex parte National Federation of the Self Employed and Small Businesses Ltd [1982] AC 617, House of Lords (also known as the Fleet Street Casuals case). This case concerns when and how an assessment of an applicant’s standing (or interest, locus standi) should be made for the purposes of determining whether they may bring a judicial review. Lord Diplock’s judgment provided a liberal approach to the assessment of standing as compared with the approaches offered by his fellow judges. The document also includes supporting commentary from author Thomas Webb.

BREAKING THE SILENCE – FRIENDS OF THE COURT CAN ADDUCE EVIDENCE Children’s Institute v Presiding Officer of the Children’s Court District of Krugersdorp Case CCT 69/12 [2012] ZACC 25

An amicus curiae, literally friend of the court, is a person or organization with a strong interest or views on the subject matter of an action, but not a party to the action who may petition a court for permission to file an application on behalf of a party. Other definitions state that the amicus is able to advise the court on matters of fact. An amicus curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise overlook. Justice O’Connor of the United States Supreme Court has justified the amicus procedure on ground that “[t]he ‘friends’ who appear today usually file briefs calling our attention to points of law, policy considerations, or other points of view that the parties themselves have not discussed”. The participation of amicus curiae in litigation is a practice which has been entrenched in the common law and civil law of various jurisdictions. It is for this reason that an amicus has become versatile and is said to fulfil a wide range of important functions. The participation of amicus curiae in litigation is a well-established practice in South African legal history. Indeed, the South African courts “are increasingly recognizing that certain matters must necessarily involve the perspectives and voices of organizations or entities that may not have a direct legal interest in the matter”. Amicus curiae briefs have helped the courts to clarify and develop judicial approaches that would assist the courtsin handling intricate issues. The role of amicus curiae in South Africa must be viewed against the background of public-interest litigation which is largely the result of the “apartheid” era in which human-rights activists and civil society organizations sought to fight the inequalities of the “apartheid” regime. With the advent of the Constitution the challenge has now moved away from addressinginequalities of the past but towards ensuring that all persons benefit from the rights enshrined in the Constitution. This has been greatly helped due to the South African Constitution adopting a liberal position with regard to locus standi. This approach has been usefulespecially for those wishing to enforce the rights in the Bill of Rights of the Constitution by litigating in the public interest. Although, technically, locus standi can be distinguished from the amicus curiae procedure, the courts have applied the same locus standi flexibility to the amicus curiae procedure. In light of this, organizations sought to be admitted as amicus curiae in order to adduce statistical evidence, initiate court cases or have sought to be admitted as amicus curiae on behalf of individuals or groups in litigation. The Children’s Institute at the University of Cape Town in the case of Children’s Institute v Presiding Officer of the Children’s Court District of Krugersdorp (Case CCT 69/12 [2012] ZACC 25) is a classic example of such a case. The Children’s Institute sought to be admitted as amicus curiae in order to adduce statistical evidence demonstrating why orphaned children living with family members should receive the foster child grant. The Children’s Institute contended that the Children’s Court decision would lead to roughly 350 000 orphaned children (who live with family members) losing their foster grants.

15. Introduction to judicial review

This chapter looks at the purpose and constitutional significance of judicial review. Where public bodies overreach themselves by acting unlawfully, the judicial review process allows individuals to hold public bodies to account in the courts, ensuring that governmental and public powers are lawfully exercised. This maintains the rule of law by helping to protect the public from the arbitrary or unreasonable exercise of government power. Judicial review is therefore a powerful check and control by the courts on executive action, but it also raises issues of whether the process gives the judiciary too much power over the elected government. There are three preliminary or threshold issues that a claimant needs to satisfy when bringing a judicial review claim. To be amenable to judicial review, the claim must raise a public law matter; it must be justiciable; and the claimant must have standing (locus standi).

Exhumation and its Procedural Aspects in Pakistan

The instant study mainly emphases on procedural matters pertaining to exhumation in Pakistan. It discusses the main aim of exhumation is to find the real cause of death in case of any suspicious foul play. It deliberate arguments on issues concerning locus standi, limitation, second petition for exhumation admissibility, jurisdiction concerns, and fate of application for exhumation in case of non-registration of First Information Report (FIR). Further, the study also discusses the nature of inquiry under Section 176(2) Code Procedure Code (CrPC), 1898.