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1
Cabral, Harsha, and n/a. "Corporate law, derivative actions : a comparative approach." University of Canberra. Law, 1999. http://erl.canberra.edu.au./public/adt-AUC20060622.163443.
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This thesis is a culmination of a research of a particular branch of Corporate Law, which
has grown in several major parts of civilized jurisdictions. The thrust of the study was to
evaluate the past, present and the future of a particular type of action known in Corporate
Law under the umbrella of shareholder remedies - the 'Derivative Action' with emphasis
to develop the law in one jurisdiction profiting from another. The research thus reveals
how, when and where the so called action originated, the initial effects these actions had on
the corporate world including shareholders, companies and related persons natural or
juristic. Though much has been written by way of books, treatises and articles and several
researches have dealt with the common topic shareholder remedies in its broad perspect,
there is no separate study carried out on this topic in its global context with a comparative
focus. This study has therefore given me the drive, initiative and courage to look at the
conceptual view or the macro view of the so called 'Derivative Action' with of course
special emphasis on the Australian and Sri Lankan jurisdictions in its micro aspects. This, I
believe is the first time anyone has undertaken such a task. The study thus travels through
distant roads of common law action to the statutory form of the action in the relevant
jurisdictions and finds it driving with much purpose in jurisdictions such as Australia and
Sri Lanka which are both in the transitional era from the common law action to the
statutory action.
The research is based on the collection of material namely, case law - Australian, Sri
Lankan and international on the matters in issue, Legal treatises on the subject matter local
and international, Law reform material - Australian, Sri Lankan and international on the
topic, Bills and Statutes available on the topic in Australia, Sri Lanka and other countries.
I have met resource personnel with regard to Law Reform in several jurisdictions on the
matters in issue and visited the Australian Stock Exchange and the Colombo Stock
Exchange.
The research findings depend mainly on the electronic data available in addition to
resources available at the University of Canberra, the Australian National University,
Colombo Law Library, The Colombo Law Society Library and the Sri Lanka Supreme
Court Judges' Chambers Library and the Sri Lanka Attorney General's Department
Library. Visits to the McGill University in Montreal, Canada and the corporate law sector
in New Zealand, including Universities and Law Offices in Christchurch and Auckland too
has helped me considerably in the process.
Review of the literature of the proposed statutory Derivative Action in Australia and the
proposed statutory Derivative Action in Sri Lanka, are based mainly on; Enforcement of
the duties of directors and officers of a company by means of a statutory derivative action
(Report No. 12) Companies and Securities Law Review Committee. (November 1990.),
Corporate Practices and the Rights of Shareholders (Report of the House of
Representatives Standing Committee on Legal and Constitutional Affairs) Parliament of
the Commonwealth of Australia. (November 1991.), Report on A Statutory Derivative
Action Companies and Securities Advisory Committee. (July 1993.), Corporate Law
Economic Reform Program (CLERP) Proposal Paper No 3 (1997), the CLERP draft
legislative provisions (1998), Australian case law on the application of the common law
Derivative Action, both in the High Court and in individual States and Australian articles
on Derivative Action as a common law remedy and on the introduction of the statutory
action. In the Sri Lankan context, the proposals in Sri Lanka for the statutory Derivative
Action and the case law in Sri Lanka on the application of the common law remedy has
been referred to. Other literature include, material available on the Canadian formula of
Derivative Action, including Statutes, Rules, case law, articles and other relevant data,
material available on the Derivative Actions in the United States, material available in New
Zealand on Derivative Actions, material available in England on Derivative Actions,
namely on the common law approach, case law, articles, Bills, Rules and other connected
material, Statutes on Derivative Actions in other jurisdictions at present and Hong Kong
proposals for a statutory Derivative Action, to name some.
The aforesaid material and the review of the same have assisted the study as follows:
-To place the past, present and the future of the common law Derivative Action.
-Examine the objectives of the Derivative Action.
-The operation of the common law aspects of the action.
-The benefits of the statutory form of the action.
-Experiences of other countries in the recent past on the subject.
-The Australian reform process presently underway.
-The best experiences in Australia with regard to case law.
-To evaluate whether the remedy should be limited to fraud on the minority or whether it
should be extended further even to negligence.
-How best Sri Lanka could benefit from the Australian formula of the statutory form of the
action.
-To evaluate whether the proposed model of the statutory action in Sri Lanka is adequate in
view of the Australian and other accepted formulae on the subject.
-Whether the common law action should be expressly abolished in Sri Lanka.
-Consider the possible introduction of the best methods to Sri Lanka.
Finally, the research speaks for itself the need for a statutory Derivative Action for Sri
Lanka in the future, to be an improvement on the Canadian, New Zealand and Australian
models. The research findings, especially in its conclusions and recommendation in
Chapter 8, will no doubt help to improve the proposed statutory Derivative Action in Sri
Lanka in a small way.
2
Ramage, Sally. "A comparative analysis of corporate fraud." Thesis, University of Wolverhampton, 2007. http://hdl.handle.net/2436/14408.
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The law is stated as at July 2006, before the enactment of the United Kingdom Fraud Act 2006. This thesis covers ‘serious’ corporate fraud and not commonplace petty fraud. I examined corporate fraud, concentrating on a comparison of the United Kingdom’s fraud with that of two civil law neighbouring countries, France and Germany, both with high financial activity, and also with a few American states, common law systems like the English legal system. The objective of this study is to identify ways of combating fraud in the UK by enquiry and discovery as to how fraud occurs and how the two different legal systems- civil and common law- treat fraud. The study reveals factors contributing to corporate fraud and recommendations for combating corporate fraud. Exploring the concept of fraud, my findings are that corporate fraud is facing exponential increase, with the UK government beginning to acknowledge this. I examined the agencies that combat fraud in the states mentioned above including the UK. Although the UK is party to an impressive number of Treaties, which help to combat fraud, treaties dealing with terrorism, drug dealing, money laundering, and other organised crime, corporate fraud is still a serious problem. The conclusions can be summarised as follows. The UK could learn much from the French legal system and the way France prosecutes corporations as per Articles 132, 222, 432, 433 and 435 of the French Penal Code. Germany’s Criminal Code is equally comprehensive in its prescriptive definitions of frauds including corporate frauds as in chapters 8, 19, 2, 23, 24, 25, 26 and 30 of the German Criminal Code. The new UK’s non-codified general, core, offence of fraud, with fraud offences maintained in other statutes such as the Companies Act, likens the UK fraud regulation closer to the US’s with its Criminal Code and other statutes that deal with fraud. The UK has not yet caught up with the US Sarbanes-Oxley Act 2002 as regards electronic business systems’ rules. The USA’s federal prescriptive code for fraud offences is akin to the French and German criminal codes and these are found in US Federal Penal Code Title 18, Part 1, Chapter 47, sections 1020 to 1084. Legal privilege is fraud exempt in the United but not in France and Germany. Legal privilege in the UK is partly exempt for SFO investigations and mandatory money laundering reporting.
3
Smith, Anne Marie. "The appraisal remedy in corporate law a comparative study." Thesis, University of Ottawa (Canada), 1989. http://hdl.handle.net/10393/5717.
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4
Haddadin, Fadi. "Critique of shareholder status in Jordanian corporate law : a comparative approach." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/MQ64279.pdf.
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Corradi, Marco Claudio. "A law and economics analysis of corporate opportunities doctrines from a comparative perspective." Thesis, University of Oxford, 2015. http://ora.ox.ac.uk/objects/uuid:f9469cef-a68f-4657-8275-d0eefb005faf.
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Business opportunities are a chance for a company to grow its activity and to further the aggregate welfare of the society as a whole. Corporate opportunities rules and their functional equivalents should enable companies to develop their business activities when directors discover those business opportunities. Companies need to be certain that they can legally appropriate those business opportunities. A company should have this ability when it is the best potential exploiter of the opportunity at issue, which is likely when the opportunity is a chance to expand the company's line of business or to pursue vertical integration. In fact, a company's appropriation of new business opportunities justifies a company's sunk costs that stem from its specific investments. Hence, the tests adopted for identifying corporate opportunities in US (Delaware), German (line of business test), UK, French, Spanish and Italian corporate laws (interest test) reflect the need to further efficiency by way of diminishing hold-up costs. Remedies against misappropriations of corporate opportunities by directors should both pursue maximum disclosure of new corporate opportunities by directors and preserve the possibility of alternative allocations of a corporate opportunity, when a company's director can exploit the opportunity more efficiently than the company. Such an alternative allocation may occur through negotiation or through efficient breach of duty. It is suggested that a differential remedial system (higher sanctions for breach of duty following non-disclosure) would maximize both disclosure and efficient allocation. This approach is closer to the one that exists in Anglo-American law than to the one adopted in most civil law jurisdictions. The present differences in various corporate laws may be connected to the existence of institutional complementarities, which should be taken into account in future reforms.
6
Zhao, Qin. "Corporate control, a comparative examination of corporate law in Canada and the People's Republic of China." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape9/PQDD_0018/MQ49477.pdf.
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Yang, Jin Zhu. "Reforming the Chinese corporate governance system : a comparative law and economic analysis." Thesis, Bournemouth University, 2006. http://eprints.bournemouth.ac.uk/10551/.
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One of the major economic themes which characterised the development of modern company law was the well-documented separation of ownership from control and the increase in management control brought about by the wide dispersion of share ownership in large public companies.The growth and complexity of the modern corporation with diversified ownership created the need for governance mechanisms to facilitate the monitoring of managers and to restrain them from acting inappropriately, while not unduly restricting their ability to make decisions. The issue of corporate governance has been fiercely debated in both the US and the UK for several decades. The impact of globalisation and the recent financial crises in East Asia and elsewhere have spurred on corporate governance reform, which is now being implemented in many jurisdictions around the world. In recent years, China appears to have adopted some of the basic corporate governance structures of the Anglo-American system. However, little comparative empirical work has so far been undertaken to document systemic differences in ownership structures, institutional arrangement and legal rules betweenthe current Chinese corporate governance system and the systems in the UK and the US, or to determine how a corporate governance regime can best be designed to overcome the agency problems created by the separation of ownership from control in the Chinese context. In this thesis, we investigate the characteristics of China's corporate ownership structure and assess how effective shareholders are in monitoring directors' activities; we examine how boards are structured and function to ensure the efficient running of the company; and we consider the legal duties imposed on directors and how these duties are enforced in China, drawing comparisons and contrasts with the UK. Also, given the distinctive features of the Chinese corporate governance system, we estimate a regression model to investigate the relationship between corporate governance and corporate performance in China. Our results indicate that the weakness of the Chinese corporate governance system is not only a consequence of the concentrated state-ownership structure. This weakness is also in part due to the ineffectiveness of internal monitoring rules, inadequate/incomplete law and poor law enforcement. Finally, we provide some suggestions for the Chinese government to improve the Chinese corporate governance system.
8
El-Saadouni, Raed. "The liability of groups of companies in Islamic law : a comparative study with common law." Thesis, University of Stirling, 2013. http://hdl.handle.net/1893/18619.
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Groups of companies offer considerable economic and practical advantages over other forms of business organizations. However, the phenomenon creates a long list of problems in terms of antitrust law, tax law, labour law, corporate law, and in the case of international companies, conflict of laws. National laws do not provide a complete solution to these problems because groups of companies are still governed by traditional corporate law, which is designed to govern single independent companies. On the other hand, harmonization of the law of corporate groups across Common legal systems is neither feasible not advisable. The most important problem which has not yet been completely solved by Common law systems is the liability of groups of companies for the debts of their subsidiaries. This has been described as "one of the great unsolved problems of modern company law". The present study aims to analyse the solutions provided by Common law systems to this problem and evaluate if they provide a solid settlement or whether further safeguards are needed for those dealing with corporate groups, namely minority shareholders and outsiders including creditors. By using a comparative approach with the Islamic law system, the study evaluates if the Common law solutions are also applicable in such a religious system or whether, due to its unique character Islamic law needs to create its own solution. This comparative approach assesses the possibilities of harmonization between Common law and Islamic law systems and promotes the Islamisation of modern laws in Islamic countries.
9
Uzoechi, Kenneth. "Corporate personality and abuses : a comparative analysis of UK and Nigeria laws." Thesis, University of Warwick, 2013. http://wrap.warwick.ac.uk/59929/.
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This thesis provides a comparative analysis of the problems of fraud and the abuse of the corporate form under UK and Nigerian company laws. The twin doctrines of separate legal personality and limited liability for members shield shareholders and directors from personal liability for the debts of the company with far reaching implications for creditors and wider society. Although this position is not immutable as demonstrated in Salomon v Salomon, an analysis of case law and statute within the general rubric of ‘lifting the veil’ or ‘piercing the veil’ in the two jurisdictions reveals that veil piercing approaches have for several reasons remained fundamentally flawed. There is no coherent principle upon which the courts may find exceptional circumstances to impose liability on shareholders and directors. Veil piercing approaches have been premised on loss allocation analysis and used only as a means to discard limited liability. No effort has been made to deny controlling shareholders and directors the benefits derived from fraud, an omission that is detrimental to the interest of creditors and thus demonstrates the need for a new approach. This thesis therefore argues that gains made by fraudulent shareholders or directors constitute an unjustified enrichment which must be disgorged for distribution to creditors. To this end, the thesis proposes a ‘responsible corporate personality model’ which gives the creditors wider rights of action to initiate claims against corporate controllers to deny or prevent wrongful benefits or proceeds of unjust enrichment when the company is insolvent or approaching insolvency. The model addresses questions such as the role of constructive trust in combating fraud, tracing, fraudulent transfer of company’s assets to third parties and obstacles imposed by the requirement of fiduciary relationship. It supports the approach to unjust enrichment, suggesting lessons for both the UK and Nigeria in order to preserve equity and prevent improper conduct of corporate controllers. A key argument is that the responsible corporate model can address certain socio-economic peculiarities of Nigeria and similar developing countries.
10
Qi, Lijie. "A comparative study on corporate reorganization law - the Uk and the US persepctive." Thesis, University of Manchester, 2007. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.489029.
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Kenyon-Slade, Stephen Laurence. "Defensive tactics in corporate takeovers : a comparative analysis of American and British Law." Thesis, University of Cambridge, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.317821.
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12
Roos, Michael Nikolaus. "Takeover and merger regulation in the United Kingdom and Germany : a comparative analysis." Thesis, De Montfort University, 1996. http://hdl.handle.net/2086/4171.
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13
Abeyratne, Mahawatfege Don Hemantha Niranjan. "Corporate rescues : a comparative study of the law and procedure in Australia, Canada and England." Thesis, Queen Mary, University of London, 1995. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1333.
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Corporate insolvency law reform in the mid 80's in the United Kingdom and the early 90's in Canada and Australia resulted in the introduction of new statutory regimes directed specifically towards facilitating the rescue of financially troubled companies or parts of their businesses. The Administration Order Procedure and Company Voluntary Arrangements in the U.K., Business Proposals in Canada and Company Voluntary Arrangements in Australia joined the ranks of Receivership under a Floating Charge, and the little used Statutory Compositions and Schemes of Arrangement. Thus, today it is usual to attempt to rescue or rehabilitate a company prior to subjecting it to a terminal insolvency regime. Since the procedures, in particular the new, seek common goals there is a great degree of similarity amongst them. This thesis begins by tracing the history of the law of corporate rescues and how the various aspects of a rescue developed from the mid nineteenth Century to the present day. It identifies several common aspects of a corporate rescue. Every aspect is conmion to at least two regimes. It then examines, in detail, the manner in which each aspect is dealt with under each procedure. This detailed analysis discloses important differences which, it is submitted, affect the relative success or failure of the procedures. It is examined whether or not each rescue regime addresses every aspect of a rescue efficiently and whether any procedure could benefit from the experiences of the others. In conclusion it is determined whether, in the light of available empirical evidence on the use these rescue procedures in Australia, Canada and England, each regime eventually achieves or has the potential to achieve the objective of a corporate rescue.
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Chałaczkiewicz-Ładna, Katarzyna. "Relevance of long-term interests in the decision-making processes of company directors in the UK, Delaware and Germany : a critical evaluation." Thesis, University of Edinburgh, 2016. http://hdl.handle.net/1842/23503.
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This thesis explores the extent to which the law in the UK, Delaware and Germany imposes an obligation on directors of solvent public companies to take into account the long-term consequences of their decisions while establishing the content and scope of long-termism in these three legal systems. It adopts a comparative methodology with the aim of determining whether the approaches taken in the chosen jurisdictions regarding both the parameters of long-termism and its legal sources and forms are radically different or very similar. It is also scrutinised here if it can be stated with any certainty that the approach taken in any particular jurisdiction regarding long-termism is ‘better’ for the protection of a company’s interests. This thesis makes four original contributions. Firstly, it conducts a comprehensive, comparative study on the relevance of long-term considerations. The concept of long-termism is analysed in the contexts of current legislation, case law, soft law, academic literature, and incentives that encourage long-termism decision-making. Secondly, hard law in the UK, Delaware and Germany does not currently offer much guidance regarding the content and scope of long-termism. A key original contribution made by this research draws on the academic literature and performs a gap-filling exercise by identifying examples of long-term decision-making in these jurisdictions, as well as examples of decision-making and conduct that is not long-term in nature. In the gap-filling exercise, case studies are presented in the context of (i) the contemporary shareholder v. stakeholder debate in corporate governance scholarship and (ii) the relevance of the share ownership structure of the company. These two important debates are used as variables to cast light on the ambit of the notion of long-termism, and the structural differences and similarities between the corporate governance systems and concepts of long-termism in the UK, Delaware and Germany. Thirdly, this thesis identifies specific and concrete factual examples of the incentives that the legal systems in the UK, Delaware and Germany do or could provide to encourage long-term managerial decision-making. Finally, it will make a positive contribution to the ongoing ‘convergence v. divergence’ debate, as the thesis has the scope to offer insights into whether the law on the duties of directors is converging in different legal systems particularly in the specific context of what is meant by long-term decision-making by such directors.
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Kloppers, Pieter W. "Judicial management as a technique for corporate rescue. A comparison with English and Australian law." Thesis, Stellenbosch : Stellenbosch University, 2000. http://hdl.handle.net/10019.1/97516.
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Thesis (LLM)--Stellenbosch University, 2000.ENGLISH ABSTRACT: Judicial management has been part of South African company law since 1926. It was introduced as a procedure to provide for a corporate rescue. Judicial management has changed little since its introduction. This is in stark contrast with the position in other jurisdictions where the need for improved corporate or business rescue procedures has received considerable attention in the last few decades. This thesis examines the suitability of judicial management as a business rescue procedure for the current South African circumstances and compares it to similar mechanisms in England and Australia. The modem economy relies on credit. Furthermore the globalisation of markets and the increase in competition between enterprises add to the unpredictability of an enterprise's economic circumstances. Thus, one of the important objectives of a corporate insolvency regime is the preservation of viable economic enterprises. A business rescue procedure such as judicial management is therefore an essential component of a corporate insolvency regime. However, judicial management needs reform. The existing shortcomings of judicial management include its high cost, the appointment of professional liquidators as business rescuers, the lack of a business rescue culture, the absence of an approved rescue plan, the treatment of judicial management as an extraordinary measure in corporate insolvency and the use of section 311 of the Companies Act as a corporate rescue mechanism. This thesis proposes that judicial management should commence with a mere resolution by the directors. This is less cumbersome than the existing procedure to commence judicial management comprising a court order. Judicial management triggers a stay of limited duration on legal proceedings that provides an essential breathing space to devise and implement a rescue plan. Once judicial management commences the creditors should hold the power to decide on the future of the company. They can therefore accept or reject a rescue plan (prepared by the judicial manager) for the restructuring of current rights and obligations and for the future management of the company. During judicial management and the execution of the rescue plan, control of the company's assets vests in the judicial manager and directors lose their powers of management. Judicial managers should be encouraged to make a success of judicial management by providing that the judicial manager cannot be appointed as the liquidator in a subsequent liquidation. Furthermore, the burden of the costs of judicial management could be eased by providing a more flexible system for the remuneration of the judicial manager. A statutory business rescue procedure interacts with other components of an insolvency regime and other areas of law. In order to optimise the positive effects of a business rescue procedure certain changes are proposed regarding statutory provisions on insolvent trading, the phenomenon of phoenix companies, section 311 of the Companies Act and tax legislation. The thesis also proposes a smooth transition from judicial management to voluntary liquidation. The thesis has an annexure with draft legislation to give effect to the principal changes proposed by it for the Companies Act.
AFRIKAANSE OPSOMMING: Geregtelike bestuur is reeds sedert 1926 deel van die Suid-Afrikaanse maatskappyereg. Dit is ingestel as 'n prosedure om maatskappye van ondergang te red. Geregtelike bestuur het sedertdien min verander. Dit is in skerp teenstelling met ander jurisdiksies wat die afgelope paar dekades toegewy gewerk het aan prosedures om korporasies en besighede te red. Hierdie tesis ondersoek die toepaslikheid van geregtelike bestuur as 'n prosedure om in die huidige Suid-Afrikaanse omstandighede besighede van ondergang te red en vergelyk dit met soortgelyke prosedures in Engeland en Australië. Moderne ekonomieë se afhanklikheid van krediet, die globalisering van markte en die toename in mededinging tussen ondernemings dra by tot die wisselvallige ekonomiese omstandighede van 'n onderneming. Die redding van lewensvatbare ondernemings is gevolglik 'n belangrike doelstelling van korporatiewe insolvensiereg. Daarom is 'n prosedure soos geregtelike bestuur om ondernemings te red 'n onontbeerlike element van korporatiewe insolvensiereg. Geregtelike bestuur moet egter hervorm word. Geregtelike bestuur het verskeie tekortkominge waaronder hoë regskoste, die aanstelling van professionele likwidateurs as persone om ondernemings te red, die gebrek aan 'n kultuur om ondernemings te red, die afwesigheid van 'n goedgekeurde reddingsplan, die hantering van geregtelike bestuur as 'n buitengewone remedie in korporatiewe insolvensiereg en die gebruik van artikel 311 van die Maatskappywet as 'n meganisme om maatskappye van likwidasie te red. Die tesis stel voor dat geregtelike bestuur met 'n blote direksiebesluit in werking gestel word. Dit is minder belemmerend as die hofbevel waarmee geregtelike bestuur tans begin word. Geregtelike bestuur stel'n moratorium van beperkte duur in werking waartydens geen geregtelike prosesse teen die maatskappyaanhangig gemaak of voortgesit kan word nie. Dit gee die maatskappy die nodige grasie om 'n reddingsplan uit te werk en te implementeer. Opsomming Geregtelike bestuur is reeds sedert 1926 deel van die Suid-Afrikaanse maatskappyereg. Dit is ingestel as 'n prosedure om maatskappye van ondergang te red. Geregtelike bestuur het sedertdien min verander. Dit is in skerp teenstelling met ander jurisdiksies wat die afgelope paar dekades toegewy gewerk het aan prosedures om korporasies en besighede te red. Hierdie tesis ondersoek die toepaslikheid van geregtelike bestuur as 'n prosedure om in die huidige Suid-Afrikaanse omstandighede besighede van ondergang te red en vergelyk dit met soortgelyke prosedures in Engeland en Australië. Moderne ekonomieë se afhanklikheid van krediet, die globalisering van markte en die toename in mededinging tussen ondernemings dra by tot die wisselvallige ekonomiese omstandighede van 'n onderneming. Die redding van lewensvatbare ondernemings is gevolglik 'n belangrike doelstelling van korporatiewe insolvensiereg. Daarom is 'n prosedure soos geregtelike bestuur om ondernemings te red 'n onontbeerlike element van korporatiewe insolvensiereg. Geregtelike bestuur moet egter hervorm word. Geregtelike bestuur het verskeie tekortkominge waaronder hoë regskoste, die aanstelling van professionele likwidateurs as persone om ondernemings te red, die gebrek aan 'n kultuur om ondernemings te red, die afwesigheid van 'n goedgekeurde reddingsplan, die hantering van geregtelike bestuur as 'n buitengewone remedie in korporatiewe insolvensiereg en die gebruik van artikel 311 van die Maatskappywet as 'n meganisme om maatskappye van likwidasie te red. Nadat geregtelike bestuur in aanvang geneem het behoort die krediteure die mag te hê om oor die toekoms van die maatskappy te besluit. Krediteure sou 'n reddingsplan (voorberei deur die geregtelike bestuurder) wat vir die herstrukturering van die regte en verpligtinge van die maatskappy en vir sy toekomstige bestuur voorsiening maak kon aanvaar of verwerp. Gedurende geregtelike bestuur en die uitvoering van die reddingsplan vestig die beheer oor die bates van die maatskappy in die geregtelike bestuurder. Die direksie verloor terselfdertyd alle bestuursbevoegdhede. Geregtelike bestuurders behoort aangemoedig te word om 'n sukses van die geregtelike bestuur te maak deur te bepaal dat 'n geregtelike bestuurder nie as likwidateur aangestel kan word indien die maatskappy uiteindelik gelikwideer word nie. Die las van hoë koste kan verlig word deur 'n buigsame stelsel van vergoeding vir die geregtelike bestuurder in te stel. 'n Statutêre reddingsprosedure vir ondernemings staan in wisselwerking met ander elemente van korporatiewe insolvensiereg en ander regsgebiede. Ten einde die positiewe uitwerking van 'n reddingsprosedure vir ondernemings te optimaliseer word sekere veranderinge ten opsigte van die wetgewing met betrekking tot handeldryf in insolvente omstandighede, die verskynsel van "phoenix" maatskappye, artikel 311 van die Maatskappywet en belastingwetgewing voorgestel. Die tesis stelook 'n gladde oorskakeling van geregtelike bestuur na vrywillige likwidasie voor. Die tesis sluit ook 'n aanhangsel met voorgestelde wetgewing in om uitvoering te gee aan die belangrikste veranderinge aan die Maatskappywet wat in die tesis voorgestel word.
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Teixeira, Gloria. "Taxing corporate profits in the EU : a comparative study : a comparison of the Portuguese, British and Dutch systems." Thesis, Queen Mary, University of London, 1996. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1690.
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This work aims to explore the main distortionary features arising from the economic double taxation of distributed profits in three member states of the European Union: Portugal, United Kingdom and the Netherlands. The problem of economic double taxation of distributed profits has been studied by public finance economists, but so far no comprehensive comparative analysis has been carried out at the juridical level. It is the purpose of this work to study the tax implications deriving from taxing distributed profits twice, but from the legal point of view. To achieve this aim both domestic laws and international tax treaties of the three member states selected are analysed in an interactive and pluridimensional way. Inward and outward investment is covered and dividend income tax burdens are ascertained by taking into account those taxes that directly influence the effective dividend income tax rate. The results are exposed and critically analysed in the light of the tax principles of neutrality and efficiency, the European Union principle of non-discrimination, and the objectives of fair distribution of revenue between member states, simplicity and prevention of tax evasion. The research findings indicate that well accepted tax principles, such as the principle of worldwide taxation and the principle of vertical equity, operate less efficiently in their roles within the overall tax system. Instead, the source principle is gaining momentum with simplicity or neutrality aims prevailing over distributional criteria. Accordingly, from a theoretical point of view, the principle of capital import neutrality is of growing importance as compared with the principle of capital export neutrality. It is also suggested that in the three states surveyed, unless an exemption system is in place, problems remain with the balance between debt financing and equity financing, complicated by the more favourably treatment given to capital gains. Neither classical or imputation systems provide a satisfactory answer to these problems.
17
Sharar, Zain. "A comparative analysis of the corporate governance legislative frameworks in Australia and Jordan measured against the OECD Principles of Corporate Governance 2004 as an international benchmark." ePublications@bond, 2006. http://epublications.bond.edu.au/theses/sharar.
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In recent years, countries across the globe have come to realise the importance of an official corporate governance regime, which provides a platform for market integrity and efficiency, as well as facilitating economic growth. Formulating effective corporate governance measures is a complex task for legislators. The purpose of this paper is to provide an in depth analysis and comparison of the corporate governance legislative frameworks in Australia and Jordan. In 2004, the Organisation for Economic Cooperation and Development (OECD), in conjunction with national and international governmental organisations, finalised a universal set of corporate governance principles. Although non-binding, the OECD Principles 2004 are a serious attempt to strengthen every aspect of corporate governance and, accordingly, have been utilised in this paper as an international benchmark.The ultimate objective of this paper is to formulate a number of detailed and specific recommendations to the Jordanian Government. Jordan’s legislative framework for corporations received a significant shake-up a decade ago when the Jordanian Government began the process of implementing a privatisation program under the guidance of the World Bank and the International Monetary Fund. Despite a number of positive developments since this program was initiated, the Jordanian Government has continually failed to recognise the importance of promoting good corporate governance. There can be no doubt that the Jordanian companies’ legislation is in desperate need of reform. The vast majority of the provisions are ambiguous and lack the necessary detail to regulate the complex sphere of company law. In this writer’s opinion, the relevant authorities in Jordan must act immediately to bring the country’s legislative regime into line with internationally recognised standards and practices. Chapter 1 of the paper sets out an introductory explanation of corporate governance and corporate structure. Chapter 2 provides a brief account of the history of company law in Jordan and a description of the different types of company structures permitted under the relevant Jordanian legislation. Chapter 3 provides a detailed discussion of the corporate governance principles formulated by the OECD. The process began in 1999 and was completed in 2004 after extensive revision and consultation. Chapter 4, the core part of the paper, presents a comparative analysis of the implementation of the OECD principles in Australia and Jordan. Chapter 5 provides an explanation and analysis of two important shareholders’ remedies in the Australian companies’ legislation that do not exist in Jordan. Finally, Chapter 6 provides a summary of analysis and sets out a list of recommendations to the Jordanian Government.
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Habi, Halita Mafo. "A Comparative study of some issues relating to Corporate Insolvency Law in Nigeria and South Africa." Diss., University of Pretoria, 2013. http://hdl.handle.net/2263/37395.
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Correia, Miguel G. "Taxation of corporate groups under a corporation income tax : an interdisciplinary and comparative tax law analysis." Thesis, London School of Economics and Political Science (University of London), 2010. http://etheses.lse.ac.uk/2786/.
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Corporate groups are notoriously difficult to tax. At the moment it is not clear whether corporate groups should be approached as single taxable entities, or whether a separate tax existence should be attributed to corporate group members. The current ambiguity generates a substantial deadweight loss. This study determines what may be the best approach to tax corporate groups, once the perspectives of government and corporate groups are taken into account. The study adopts an interdisciplinary approach, whereby elements, such as market imperfections, the economic, legal and functional nature of corporate groups and the rules of related regulatory fields, are brought into the investigation. The study is based on the US federal corporate income tax system, although, for certain issues, the UK tax system is analyzed. The study adopts a closed economy perspective. The study shows that the design and operation of the corporate income tax system is subject to several constraints and distortions, and argues that to simply look at how far a certain policy is from optimality may be insufficient to determine whether an incremental improvement occurs. The study proposes a new approach to corporate income tax policy whereby the pursuit of incremental improvements requires the minimization of transaction costs and other sources of deadweight loss and the taking into account of the collateral effects of the corporate income tax system, including its interaction with market imperfections, the behavioural and operational nature of business entities, the frictions imposed by other regulatory fields and corporate governance. Following this policy approach, the study concludes that treating corporate groups as single taxable entities is the best approach to tax corporate groups and recommends a revision of certain technical aspects of the current US and UK legislation for taxation of corporate groups.
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Yun, Chong. "The role of corporate social responsibility in corporate governance in the context of employment : a comparative study of the United Kingdom and China." Thesis, University of Glasgow, 2014. http://theses.gla.ac.uk/5851/.
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The purpose of this thesis is to study the role of corporate social responsibility (hereinafter ‘CSR’) in corporate governance in the context of employment. This is done through a comparative study of the United Kingdom (hereinafter ‘UK’) and China in which it is determined whether Chinese companies can adopt UK companies’ CSR practices in employment. The thesis begins with an overview of the theory of corporate governance and the necessity of CSR in corporate governance. The different models and principles of corporate governance and CSR, and how the main corporate organs operate in corporate governance and apply CSR in decision-making to meet stakeholders’ needs are introduced. The study then demonstrates the rationale behind the emergence of CSR, the legal impact of CSR on stakeholders and the global application of CSR initiatives, especially the techniques and mechanisms adopted in the UK and China. The research specifically presents CSR practices in employment in the UK and China against a theoretical background. This comparative study is mainly dependent on companies’ information disclosure, since all data were collected from their official CSR reports. The quality of the information disclosure is assured through effective monitoring as stated in the various reports. The implication of the comparative research on the information disclosure collected demonstrates the difference in CSR implementation in employment between UK and Chinese companies. The thesis analyses the possibility of adopting UK CSR practice in employment in Chinese companies in terms of the economic, social and political barriers to, and current situation of, CSR in China. As China has opened up the global market, overseas companies have invested in the Chinese market. This comparative study of CSR implementation in the context of employment in the UK and China, and the analysis of the current status of Chinese CSR practices also provide foreign enterprises experience to relate their CSR policies in corporate governance to Chinese context.
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Dunmark, Lenny. "Corporate establishment in China : A comparative study of establishment options available for an Aktiebolag when entering the Chinese market." Thesis, Jönköping University, JIBS, Commercial Law, 2006. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-289.
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There are many Swedish companies active on the Chinese market, since China’s accession to the WTO the year 2001 China has gotten even more interesting. China’s WTO accession does not only make it easier for Swedish companies to be present in China, it also provides Chinese companies an increased opportunity to access the Swedish market. Currently Chinese companies active in Sweden only counts for a small share of the total amount of the foreign companies present in Sweden, while there are several Swedish companies present in China.
The Chinese legislation for the various entities is extensive. Just as in Sweden, China applies a civil law system with a written constitution. While China is a communistic one-party state Sweden is democratic nation with several parties. The communistic legacy is reflected in the Chinese legislation. There are several types of entities that appeals to a foreign investor in the Chinese legislation while there in the Swedish legislation only exist one kind of entity that counts as a legal person with limited liability. In both nations there exists the possibility of establishing a Representative Office however it is not allowed to conduct any kind of profit making business. There is in neither state any severe obstacles from establishing a company, there is only a demand for residency within the EEA in the Swedish legislation. According to many Swedish companies present in China it seems that bureaucracy in China is the major difficulty, it is perceived as complicated and time-consuming
For foreign companies it is important to respect the culture in the foreign country. The Chinese culture is different from the western and there are some concepts that are valuable to be familiar with. Guanxi can be compared to having a powerful network which may perform miracle with the time-consuming Chinese bureaucracy and mianzi which is more than just having a good reputation. How the company is perceived is highly important in China.
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Mendoza, Jose Miguel. "Transitional strategies for institutional reform in Latin America." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:0f328cba-8a44-4775-889f-ff12a13b8148.
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This dissertation seeks to improve the current understanding of the ways in which institutional reform can promote the development of stock markets in Latin America. Over the past decade, policymakers sought to stimulate the growth of capital markets in the region through the promotion of a standardized set of formal institutions. An example of this approach in the field of company law was the introduction of modern corporate governance practices into nations without a solid enforcement infrastructure. By most accounts, these efforts did not deliver on their promise of stock market development. This work identifies areas for potential reform. As a means to better understand the operation of Latin American stock markets, this dissertation draws from different sources, including the historical experience of industrialized nations, the available literature on institutional reform, the documented shortcomings of legal reform programmes and hand-collected data from various Latin American countries. The resulting analysis suggests that the promotion of Latin American capital markets may require strategies different to those that were set in motion over the past decade. The main contribution of this work is twofold. First, this dissertation brings some nuance to the discussions concerning the challenges faced by Latin American capital markets. A proper understanding of these challenges is essential for policymakers in the region, particularly after the onset of the Latin American Integrated Market. Second, this dissertation explores the use of ‘transitional strategies’ to overcome some of the challenges identified here. The ultimate goal of this project is to inform future reform efforts in Latin America and to offer some insights for policymakers in other emerging countries.
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Udofia, Kubianga Michael. "The impact of insolvency on corporate contracts : a comparative study of the UK and US insolvency law regimes." Thesis, University of Nottingham, 2014. http://eprints.nottingham.ac.uk/27878/.
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Parties who contract at arm’s length are bound by the terms of their contracts, provided the contracts do not contravene a rule of law or public policy. The commencement of formal insolvency proceedings may however limit the ability of a debtor to perform its pre-petition contractual obligations, resulting to liabilities to creditors. Accordingly, a formal insolvency procedure ensures an orderly and efficient resolution of the debtor’s affairs -- maximising realisations to creditors or rescuing the corporate debtor as a going concern. To achieve this purpose, unilateral contract enforcement efforts and rights are replaced by a mandatory regime characterised by collectivity and equality in treatment of similarly situated creditors. This thesis comparatively evaluates the impact of the commencement of formal insolvency proceedings on corporate contracts in the UK and US. It examines the extent to which pre-petition contractual bargains are suspended, adjusted or avoided by the supervening insolvency law regime in the jurisdictions. The thesis adopts a thematic approach to examine how the legal frameworks in the jurisdictions manage the inevitable conflict between the policy considerations of contract law and those of insolvency law. The extent to which insolvency law should interfere with pre-insolvency contractual arrangements and entitlements has always been a contentious and keenly debated issue. No doubt, insolvency law has a greater number of interests to protect outside the interests of pre-petition contracting parties. These include the general body of creditors, employees, post-petition creditors etc. Nevertheless, in the absence of compelling and well-articulated policy justification, formal insolvency ought not to be a forum for the stripping of property rights or the pursuit of redistributional goals.
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Milatovic, Sinisa. "The role of international law in establishing corporate accountability through codes of conduct." Thesis, University of Oxford, 2015. http://ora.ox.ac.uk/objects/uuid:c9de550d-5260-4c86-afed-ca0ecbef338d.
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The thesis answers the following research question: what is the extent of the influence of international law on the construction and application of corporate codes of conduct, what factors determine this influence and through which processes does it occur? The thesis uses a mix of methods: a content analysis study, used to measure the extent to which codes of conduct incorporate international labour standards and the degree to which they have changed over time in this respect; legal research on whether corporations can be liable for violating their codes and how this risk factors in the drafting of codes; and case studies of fifteen retailer corporations, which examine how their codes were created and how they are being applied. The study's findings show there is an influence of international law on the construction and, to a far smaller degree, on the application of codes. The creation and application of codes is a politicised and contested process and codes are based on international law principally due to the pressure exerted by trade unions and NGOs, but also due to reputational risk, commercial pressure and mimicry by corporations. This influence has been selective, with corporations applying provisions in their codes that protect the rights carrying the biggest reputational risks. These findings show the flaws in the current international framework for corporate accountability, which is based on self-regulation through codes and audits. They also raise issue of whether changes, such as a binding international treaty or the creation of more collaborative and inclusive programmes to oversee the application of codes, may be required in order to ensure wider respect for labour rights of workers.
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Bidin, Aishah. "Corporate debt security : a comparative analysis of the protection of creditors' interests in English and Malaysian law." Thesis, University College London (University of London), 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.423201.
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Guevara-Bernal, Iván. "In search of the legal nature of the multi-corporate enterprise : a comparative study in law and economics." Thesis, University of Cambridge, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.619527.
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Wong, Hang Shing. "Corporate governance and the protection of minority shareholders in Hong Kong and China : a comparative perspective." Thesis, University of Exeter, 2016. http://hdl.handle.net/10871/22128.
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The protection of minority shareholders is one of the important topics in company law. The two major oppression of minority shareholders are from the management and the majority shareholders. In this thesis, I seek to study the two oppression and the minority protection under the company law in Hong Kong and China. This thesis discusses: (i) Whether the Hong Kong common law system provides better protection to minority shareholders than is found in the Chinese civil law system? (ii) Whether the high degree of concentrated corporate ownership leads to the poor protection of minority shareholders in Hong Kong and China? (iii) What are the transplantation effects of foreign company laws on the protection of minority shareholders in Hong Kong and China? (iv) Whether the existing legal remedies to minority shareholders in Hong Kong and China are adequate? and (v) What are the problems of minority shareholders protection in Hong Kong and China? A comparative study of corporate governance and the protection of minority shareholders in Hong Kong and China is to identify the similarities and differences in the two systems for the purposes of legal reform. This thesis argues that mere adoption of Hong Kong common law system according to the legal origin theory could not improve corporate governance and minority shareholders protection in China; Chinese corporate governance and minority shareholders protection reform must include both legislative and structural aspects and these aspects are shaped by the initial paths according to the path dependence theory. This thesis argues that the high concentration of corporate ownership does not necessarily lead to poor legal protection of shareholders in Hong Kong, and the weak protection of minority shareholders in China is not due to its civil law origin but its structures relating to the rule of law principle. This thesis examines the theoretical debates between the legal origin theory and the path dependence theory and applies them to Hong Kong and China. This thesis contends that the basic company law has already achieved a high degree of uniformity in Hong Kong and China and the base of divergence between Hong Kong and China is in the structural and institutional differences. This thesis argues that the success of legal transplantation and minority protection in Hong Kong is dependent upon its initial structures which have been locked-in to the current structures. This thesis concludes that the issues of minority shareholders protection in China are in its socialist market economy, state intervening policy, public ownership, relation-based tradition, rule by law culture, corruption practices, dominant role of the CCP and non-independent judiciary; and the Chinese minority protection reform, in a broader sense, involves not only the legislative issue but also the structural issues which relate to the rule of law principle. This thesis proposes that the transplantation of foreign company law will not necessarily improve the protection of minority shareholders and hence the corporate governance in China. This thesis also confirms that direct transplantation of foreign law is not always suitable for countries with less developed structures. These findings are also relevant to other emerging economies and developing countries in understanding the limitations on the use of foreign law to improve corporate governance and the protection of minority shareholders.
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Mathibela, Kgwiti Prince. "Corporate social responsibility legal analysis and social transformation: the South African experience in a comparative perspective." Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/27990.
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This dissertation presents a legal and regulatory framework of corporate social responsibility (CSR) and the effect it has on social transformation in South Africa. It is premised on Dodds' theory of stakeholder protection which is articulated with greater clarity by Jeff Smith. He states that directors are agents of all stakeholders. In other words, they have the responsibility to ensure that every stakeholder's rights and interests are protected and fulfilled. This, he further explains, should be carried out by means of a balancing exercise between each stakeholder interest in every transaction. The dissertation demonstrates how the private sector can 'effectively' utilise principles of CRS to contribute towards and expedite social transformation. The significance of social transformation rests on it being a constitutional imperative as employed to redress the legacy of Apartheid. Lastly, the dissertation discusses CSR and how it affects social transformation in India and the United Kingdom (UK) with the aim of gleaning comparative insights. The dissertation then makes recommendations that the South African CSR legislation should embody objectives of our broader national interests similar to the Indian approach. In addition, it argues for a fully defined set of directors' duties which promotes compliance with CSR goals similar to the UK approach.
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Vilar, Bruno Haack. "Estudo comparado da disciplina da remuneração dos administradores de sociedades por ações no Brasil e Reino Unido e sua relação com a propriedade do capital." reponame:Biblioteca Digital de Teses e Dissertações da UFRGS, 2013. http://hdl.handle.net/10183/78773.
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Este trabalho analisa a disciplina da remuneração dos administradores de sociedades por ações no direito brasileiro em cotejo com aquela do Reino Unido, sob a perspectiva da estrutura de propriedade do capital predominante em cada um desses países. Após um escorço histórico que ilustra o papel da sociedade por ações em mobilizar poupança popular, exploram-se os fatores que levaram à fragmentação da propriedade acionária no Reino Unido e analisa-se a ocorrência de tal fatores no Brasil. A seguir destacam-se as relações entre distribuição do capital (se concentrada ou dispersa) e administração societária, com especial ênfase a seus reflexos sobre a remuneração. Por fim investiga-se a disciplina da remuneração dos administradores de companhias no direito britânico e brasileiro, atentando-se para a adequação deste a um cenário em que sociedades de capital disperso passam a disputar espaço no mercado com sociedades de capital concentrado. Conclui-se que as mudanças pelas quais vem passando o mercado de capitais brasileiro nos últimos anos podem vir a exigir alterações no direito.This thesis analyses the discipline of executive remuneration in Brazilian law as compared to that of British law and under the perspective of the prevailing capital ownership structure in each of these countries. After a brief historical illustration of the role of corporations in the mobilisation of public savings, the factors that produced the dispersion of shareholding in the United Kingdom are review and their occurrence in Brazil is analysed. The relationships between share ownership distribution (if concentrated or dispersed) and corporate governance are reviewed, with an emphasis on its effects over remuneration. Finally the discipline of executive remuneration in British and Brazilian law is investigated, considering the adequacy of the latter to a scenario in which dispersed capital companies share an space in market with concentrated capital companies. Conclusion is that the changes observed in the brazilian capital market in the last years may come to demand modifications in law.
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Machine, Abigail. "The business case for corporate social responsibility (CSR) is good business: A comparative analysis of CSR practices in the South African and Australian banking sectors." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15178.
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A focus of the study will be on the South African banking sector, comparing it with the CSR practices of Australian banking sector. The reason for this comparative analysis stems from the similarities that are prevalent between the two countries, although they have different designations, with one country as a developing country and the other as a developed country respectively. Both countries were once colonies. Australia was ruled by British and South Africa was ruled by Dutch and British. Both countries' financial sectors are well regulated and developed. Similar rules regarding disclosing information are applied in both countries' listed companies. The listed companies in both countries are required to disclose their social and environmental information in addition to their financial information
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Prassl, Jeremias Francis Benedict Baruch. "The notion of the employer in multilateral organisational settings." Thesis, University of Oxford, 2012. http://ora.ox.ac.uk/objects/uuid:f9352b07-ce1f-45ab-a591-df4496c1ddb2.
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This thesis explores the notion of the employer in English employment law. It seeks to develop a functional reconceptualisation of that notion in the hope of overcoming the theoretical and practical problems resulting from the tensions inherent in the current approach. The first part of the thesis analyses the notion of the employer as counterparty to the contract of employment. Two conflicting strands emerge: the employer is simultaneously identified as a single party to a bilateral contract (the unitary strand) and defined through the exercise of a range of employer functions (the multi-functional strand). As a result of this tension, full employment law coverage is restricted to a narrow paradigm scenario where a single legal entity exercises all employer functions. Modern economic developments, from the rise of employment agencies and service companies to corporate groups and Private Equity investors, have however increasingly led to the joint exercise of such functions across multiple entities. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may even find themselves without recourse to any employment law protection. An additional chapter compares this situation with the notion of the employer in German law, where a sophisticated apparatus has been developed in order to address the particular challenges of employment in multi-entity scenarios, in particular in corporate groups. On the basis of these observations the final part of the thesis then proposes a reconceptualised notion. The employer is defined as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the current notion is addressed in turn to demonstrate how this more openly multi-functional approach addresses the rigidities of the current notion without abandoning an underlying unitary conceptualisation. It is hoped that the resulting notion of the employer will be able to place employment law obligations on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organisation of the enterprise in question.
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Hamadziripi, Friedrich. "Does the directors' fiduciary duty to act in the best interests of the company undermine other stakeholders' interests? : a comparative assessment of corporate sustainability." Thesis, University of Fort Hare, 2016. http://hdl.handle.net/10353/5916.
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This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.
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Sonmez, Melih. "The role of better transparency law in corporate governance and financial markets, and its practicability in legal systems : a comparative study between the EU and Turkey." Thesis, Durham University, 2014. http://etheses.dur.ac.uk/10800/.
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Recent developments in globally connected financial markets have heightened the need for an effective flow of information between market players. In particular, the ‘devil side of corporations’, such as the scandals of Lehman Brothers, Parmalat and Imar Bank, has stimulated the debate on the core role of a high level of transparency in corporate governance structures as well as in financial markets. The main reason for the essentiality of a high level of transparency in financial markets is that it, similar to a shop window, not only increases the attractiveness of financial markets, but also, as an ‘invisible guard’, plays a preventative role for the unexpected events. Therefore, any opaqueness is unlikely to be tolerated in these highly competitive financial markets. The research of this thesis shows that transparency is one of the main elements for effective functioning of financial markets and a significant factor to the success of corporations. However, the creation of well- functioning transparency rules is not an easy process because it requires considerable and on-going efforts from policy-makers. In this respect, the aim of this research is to investigate how a high level of transparency plays a strategic role in corporate governance and financial markets despite its difficulties. However, to what extent has its importance been realised by policy-makers in their respective legal frameworks? In order to understand the practicability of transparency rules, this thesis presents and compares the EU and Turkish transparency laws as case studies. Hence, it designs a theoretical framework for the importance of transparency both in corporate governance and financial markets, and assesses how idea of transparency has been converted into practice. In order to make a comparative analysis between EU and Turkish transparency laws, this research develops the following key elements of better transparency law: a) The dual nature of transparency laws; b) The right modalities of transparency requirements; c) The key information to be made available; d) Effective bodies and institutions; e) The adaptability of relevant legal rules with recent innovations. Hence, this thesis examines the strengths and weaknesses of EU and Turkish transparency laws, and makes further recommendations based on the availability of these key elements in their respective legislative frameworks. Thus, overall, this research aims to critically examine the discussion about the relationship between a high level of transparency, the financial scandals and recent reforms in EU and Turkish transparency laws from a comparative perspective, and to identify key elements of better transparency law for financial markets.
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De, Erice Pablo Rüdiger S. "The Societas Privata Europaea - A European Private Limited Company in the Making: including a comparative look at the process of company law reform in South Africa." Thesis, University of the Western Cape, 2008. http://hdl.handle.net/11394/2747.
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Magister Legum - LLMThis mini-thesis aims to contribute to the debate around the legislative process by summarizing and analysing it comprehensively. It will, without being exhaustive, seek to identify the most important legal requirements that the future Statute needs to meet in order to facilitate cross-border business of small and medium-sized businesses. It seeks to systematise and comment on the most important legal Key Issues and therefore clarify and enrich the debate.
South Africa
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Polizelli, Victor Borges. "O princípio da realização da renda e sua aplicação no imposto de renda de pessoas jurídicas." Universidade de São Paulo, 2009. http://www.teses.usp.br/teses/disponiveis/2/2133/tde-18112011-145517/.
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No contexto do sistema tributário nacional brasileiro, uma apuração correta da renda tributável demanda o respeito a princípios abrigados pela Constituição Federal expressa ou implicitamente e, dentre estes, vale citar o princípio da realização da renda que, numa descrição simplificada, auxilia na detecção da capacidade econômica apta a sofrer tributação, uma vez que delineia diretrizes mais concretas para a identificação do momento adequado para que tal tributação se implemente. Este estudo enfoca o momento temporal em que se consideram ocorridos os fatos econômicos individuais que se ajuntam para compor a apuração da renda tributável. Não se trata, portanto, de uma abordagem direta acerca do aspecto temporal próprio da regra-matriz de incidência do imposto de renda, aquele que se identifica normalmente com o término do período de um ano. O tema é abordado com enfoque na tributação da renda, apresentando parâmetros para a conceituação do referido princípio e buscando delinear suas funções, bem como descrever seu âmbito de aplicação no Direito Tributário brasileiro, especialmente no que concerne à apuração do imposto de renda (sobretudo o de pessoas jurídicas). O princípio da realização é examinado sob três diferentes perspectivas. Primeiro, faz-se uma análise dos conceitos de renda (e noções correlatas de realização) fornecidos pelas ciências financeiras e econômicas. Segundo, há uma análise sob a perspectiva histórica que apresenta a evolução deste princípio na Alemanha, nos E.U.A., no Reino Unido e também no Brasil. E, por fim, sob a perspectiva estritamente jurídica, enfocando-se o sistema normativo atualmente vigente no Brasil, discutem-se a posição sistêmica do princípio da realização e as limitações impostas pela Constituição Federal de 1988 e pelo Código Tributário Nacional. Ainda nesta última perspectiva, avaliam-se as funções desempenhadas pelo princípio da realização como integrante dos princípios de contabilidade geralmente aceitos e as relações entre Direito Contábil e Direito Tributário. O princípio da realização é examinado em seus diferentes elementos (cumprimento da obrigação, mudança da posição patrimonial, troca no mercado, mensurabilidade, liquidez e certeza). Por fim, propõe-se uma estrutura para classificação dos diferentes critérios que informam o princípio da realização à luz da legislação brasileira.In the context of the Brazilian tax system, a correct calculation of taxable income demands respect for the principles sheltered, expressly or implicitly, by the Federal Constitution and, among these, it is worth mentioning the realization principle. In a simplified description, said principle helps in the detection of the economic capacity that is able to suffer taxation, since it outlines more specific guidelines for identifying the right time where taxation may be implemented. This study focuses on the timing of the economic facts that are gathered up to comprise the basis for calculation of the taxable income. It is not, therefore, a direct approach on the temporal aspect of the basic rule of incidence of income tax (aspect which is usually identified with the end of the taxable period of one year). The issue is discussed with focus on taxation of income, showing parameters for the conceptualization of realization principle and seeking to outline its functions, as well as to describe its scope within the Brazilian Tax Law, especially on what concerns the calculation of the income tax (especially the corporate income tax). The realization principle is examined from three different perspectives. First, the study presents an analysis of the concepts of income (and related notions of realization) provided by the financial and economic sciences. Second, there is an analysis on the historical perspective that presents the evolution of this principle in Germany, the USA, the UK and also in Brazil. Finally, under a strictly legal perspective, focusing on the regulatory system currently in force in Brazil, it discusses the systemic position of the realization principle and the limitations imposed by the Federal Constitution of 1988 and the National Tax Code. With respect to the latter perspective, the study examines the functions performed by the realization principle as part of the generally accepted accounting principles and the relations between Accounting and Tax Law. The realization principle is examined in its different elements (achievement of the obligation, change in the property position, market exchange, measurability, liquidity and certainty). Finally, it proposes a structure for the classification of the different criteria that inform the realization principle in accordance with the Brazilian legislation in force.
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Belinguier-Raiz, Sarah. "La réparation des dommages causés par le dirigeant en droit des sociétés : étude comparative droit français-droit italien." Thesis, Aix-Marseille, 2012. http://www.theses.fr/2012AIXM1013.
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En droits français et italien des sociétés il est difficile d'affirmer l'existence "d'un" droit à réparation en particulier lorsqu'il s'agit du préjudice social, sa réparation étant freinée par le manque d'effectivité de l'action sociale, et du préjudice individuel de l'associé, sa reconnaissance au fond étant limitée. Il est également difficile pour les victimes d'affirmer l'existence "du" droit à réparation, en raison d' obstacles de nature procédurale et financière rencontrés dans la mise en oeuvre de leur droit jusqu'à l'éventuelle condamnation. Les difficultés rencontrées par les victimes révèlent le manque d'effectivité de la réparation des dommages causés par le dirigeant et, par là même, le manque d'effectivité de la responsabilité personnelle de ce dernier. L'étude de certaines dispositions nouvelles des deux pays, en particulier du droit italien, nous invite cependant à réfléchir sur les perspectives d'évolutions
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Lindblad, Matilda. "Parent Company Liability for Torts of Subsidiaries : A Comparative Study of Swedish and UK Company Law with Emphasis on Piercing the Corporate Veil and Implications for Victims of Torts and Human Rights Violations." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-416230.
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The gas leak disaster in Bhopal, India, in 1984 illustrates a situation of catastrophe and mass torts resulting in loss of life and health as well as environmental degradation. The Indian company Union Carbide India Limited, who owned and operated the chemical plant that caused the disaster, did not have sufficient assets to compensate the victims in contrast to its financially well-equipped US parent company Union Carbide Corporation. The courts never reached a decision regarding parent company liability for the subsidiary’s debts arising from tort claims against the subsidiary. However, where the subsidiary cannot satisfy its tort creditors, as in the Bhopal case, questions regarding parent company liability become highly relevant in relation to both foreign and domestic subsidiaries. Therefore, parent company liability for subsidiaries’ torts is discussed in this thesis with reference to Swedish and UK company law and with a focus on the tort creditors’ situation and the business and human rights debate. From limited liability for shareholders and each company being a separate legal entity follows that a parent company is not liable for its subsidiaries’ debts in neither Swedish nor UK company law. These concepts serve the important function of facilitating risk-taking and entrepreneurial activities. However, they also contribute to the problem of uncompensated tort victims arising where a subsidiary is involved in liability- producing activities but lacks assets to compensate the tort victims. Where limited liability and each company being a separate legal entity leads to particularly inappropriate results, the doctrine of piercing the corporate veil in both Sweden and the UK allows the court to disregard the separate legal personalities and hold the parent company liable for its subsidiary’s acts or omissions. The doctrine is characterised by uncertainty and is seemingly only available under exceptional circumstances. The doctrine does little to mitigate the problems for subsidiaries’ tort creditors at large. The business and human rights debate calls for access to judicial remedies for victims of businesses’ human rights violations. As some human rights violations can form the basis of a tort claim, it is relevant to discuss parent company liability according to company law in relation to human rights violations. The United Nations Guiding Principles on Business and Human Rights emphasise the need to ensure that corporate law does not prevent access to judicial remedies. However, the company law regulation of liability in company groups seems in practice to function as an obstacle for access to judicial remedies for human rights victims, particularly when also considering the inadequate legal regimes in some host states and the hurdles of jurisdiction and applicable law in multinational company groups. It is concluded in this thesis that the company law regulation of liability in company groups is seemingly not equipped to meet the challenges arising with the development of company groups, the global reach of the private business sector, the risks of mass torts and the influence of the business sector on human rights.
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Bluffstone, Zoe. "Seeking Redemption in a World of Waste: A Comparative Analysis of Bottle Deposit Systems and Campaigns and a Consideration of Their Comprehensive Sustainability." Oberlin College Honors Theses / OhioLINK, 2016. http://rave.ohiolink.edu/etdc/view?acc_num=oberlin1462983935.
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Laranjeira, Rodrigo de Almeida. "Le gouvernement d’entreprise en droit européen et brésilien comparé." Doctoral thesis, Humboldt-Universität zu Berlin, Juristische Fakultät, 2016. http://dx.doi.org/10.18452/17596.
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Corporate Governance hat einen radikalen Wandel in Europa seit den 1990er Jahren durchgemacht. Der Wandel ist konsolidiert und ist nun Teil des Rechts der modernen Aktiengesellschaften. Brasilianisches Recht wird immer durch die europäische Gesetzgebung inspiriert. Unsere Studie fragt, aus einer vergleichenden Sicht, ob sich das brasilianische Unternehmensrecht auf die europäische Corporate Governance bezieht. Wir konzentrieren uns in Europa auf das deutsche Recht, das englische Recht, das französische Recht und das europäische Recht. Unsere Analyse geht über die Herzen der Unternehmensführung und umfasst Teile, die dem Kapitalmarkt- und dem Umweltrecht angehören, da sie selbstverständlich auch eine Verbindung mit der Corporate Governance und dem Aktienrecht haben. Das Verständnis des Kerns der Unternehmensführung, welcher die Organisation der Verwaltungsorgane der börsennotierten Aktiengesellschaft ist, hängt von der Analyse der rechtlichen Behandlung von Neben-Themen, die aber verwandt sind, ab, wie die Regeln über die Haftung.Corporate governance has undergone a radical change in Europe since the 1990s. Change has now consolidated and is part of the company law. Brazilian law has always been inspired by European legislation. Our study asks, from a comparative perspective, if the Brazilian corporate law relates to the European corporate governance. In Europe, we focus on German law, English law, French law and Community law. Our analysis goes beyond the heart of corporate governance and includes parts of capital markets law and environmental law, because they obviously also have a connection with corporate governance and company law. The understanding of the core of corporate governance, which is the organization of administrative bodies of the listed company on a regulated market, depends on the analysis of the legal treatment of incidental subjects, but related, as the regime of liability.
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Mova, Al'Afghani Mohamad. "The role of legal frameworks in enabling transparency in water utilities' regulation." Thesis, University of Dundee, 2012. https://discovery.dundee.ac.uk/en/studentTheses/e7d76ec4-3479-4d12-8fce-9a9f01ca442b.
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This thesis evaluates transparency in the context of water utilities’ regulation by comparing legal frameworks in three jurisdictions: Victoria (Australia), England (United Kingdom) and Jakarta (Indonesia). Each of these jurisdictions is selected because of their particular ownership and regulatory model. The thesis analyses whether specific ownership or regulatory models will have implications for transparency. The terms “transparency” and “water utilities’ regulation” are first defined and form the thesis’ analytical framework. This is then applied against the three jurisdictions compared. By evaluating each of the three jurisdictions, the thesis expects to provide explanation on how transparency is enabled or inhibited by the legal frameworks. The thesis recommends a solution by comparing the three jurisdictions and generating “lessons learned”.
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Davenport, Stephanie 1972. "Experiments in corporate collaboration : the case of the Arts Electronica Future Lab." Thesis, Massachusetts Institute of Technology, 2003. http://hdl.handle.net/1721.1/40027.
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Thesis (S.M.)--Massachusetts Institute of Technology, Dept. of Comparative Media Studies, June 2003."May 2003."
Includes bibliographical references (leaves 101-103).
The Ars Electronica FutureLab is a thriving interdisciplinary research facility located in Linz, Austria. It is part of the Ars Electronica Center (AEC), a cultural institution which for over two decades has been a pioneer in exploring the interface between art, technology, and society and mediating public interaction with new technologies. As a nonprofit organization, the AEC is primarily supported by key public sector partners including local government and the state broadcast company, as well as corporations. This institutional framework, together with university affiliation, has facilitated the FutureLab's diverse activities from artistic to more commercially oriented projects exhibited in the AEC 'Museum of the Future' and at off-site venues. The FutureLab's team of artists and researchers has forged a unique hybrid research model focused on three core research areas (virtual reality environments, interactive installations, digital surfaces) which allows them to take prototypes developed from artistic projects and apply perfected solutions to industry projects, or vice versa. Increased demand especially from the private sector for the lab's cutting-edge technology developments and research expertise now threatens to upset the delicate balance of this model. Today, AEC management needs to address the issue of sustainability for both its FutureLab division, in face of heavy workloads, and the institution at large, given decreasing government funding for arts/culture. The AEC is devising a strategy for cultivating industry partnerships based on the FutureLab's experiments in corporate collaboration to date which have been successful namely because they are focused on mutually beneficial outcomes. Through this strategy, the AEC is eager to supplement corporate sponsorships with longer-term industry partnerships in order to ensure financial stability. FutureLab employees stand to gain additional resources and, therefore, the ability to sustain their current research model and continue doing cutting-edge work. With the AEC and the FutureLab, corporations have access to a dedicated arts community whose expert staff can help them develop and promote interesting projects as well as meet both their business needs and corporate affairs objectives.
by Stephanie Davenport.
S.M.
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Tortellier, Nathalie. "Etude comparée entre les sociétés fermées à risque limité de droits français et hongkongais : contribution à la réflexion sur la simplification du droit français des sociétés." Thesis, Rennes 1, 2016. http://www.theses.fr/2016REN1G002.
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Cette étude résulte d'une observation : le droit hongkongais des sociétés, appartenant à l'ordre juridique de la Common Law, semble produire de manière pragmatique des règles qui encouragent et facilitent le commerce. L'image du droit français des sociétés est frappante de rigidité, de lourdeur, de dirigisme et d'interventionnisme étatiques. Par rapport à cette image, celle du droit hongkongais surprend par sa souplesse voire sa simplicité, son intelligibilité, son effectivité et son efficacité. Nous avons identifié des règles et des mécanismes de la société fermée à risque limité hongkongaise, la Company, qui nous semblent constituer des éléments majeurs de son succès. Nous en avons compris les fondements, le fonctionnement et la portée afin de nous permettre de comparer ces règles et mécanismes à ceux de la SARL et de la SAS et d'y insuffler un vent de souplesse, de simplicité et de liberté encadrée. Les thèmes choisis relèvent de la rapidité et de la sécurité de l'immatriculation et de la dissolution, de la liberté statutaire et de son accompagnement par des modèles de statuts-type, de la liberté des associés de construire leur société conformément à leur volonté (qu'il s'agisse de la géographie du capital social et de l'encadrement du fonctionnement de l'organe de gestion) et du support juridique apporté à l'organe de gestion favorisant la bonne gouvernance des SARL et des SAS et le contrôle des associés. Cette étude compare les SARL et la SAS avec la Company dans le but de permettre au droit français des sociétés de développer une société outil adaptée aux acteurs économiques contemporains et au service de l'efficacité économique recherchée par les pouvoirs publicsObserving Hong Kong private companies with liability limited by shares (hereafter "Company") evolving in the Common Law system was a rewarding experience: efficiency and simplicity and safety are the main features of Companies that come to mind. Looking at French SARL and SAS gives quite a different picture: laws and orders are overabundant, legal and administrative requirements constitute a burden on directors, members and directors cannot really benefit from a flexible environment as State interventionism is deeply rooted in the French legal culture. We identified various mechanisms and regulations belonging to the Company that contributed to its international success. We studied these mechanisms and regulations and understood their founding principles and significance. Then we compared them to those of the SARL and SAS in order to inspire flexibility, simplicity and supervised freedom to these two corporate bodies. The study compared the following features: the rapidity and the safety of incorporation as well as of deregistration; the freedom of the members to use model articles of association as well as adapting the suggested model; the freedom of the members to define their membership using classes of shares as well as the management of the Company's business; company secretary and certified public accountant providing corporate governance support to directors as well as information to members for their controlling role. This comparative study aims at putting forward recommendations to develop French companies as a tool for contemporary economic players and to promote company law's economic efficiency
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Lima, Liana Issa. "Governança corporativa em empresas estatais listadas: as experiências de Nova Zelândia, Índia, Argentina e Arábia Saudita." reponame:Repositório Institucional do FGV, 2018. http://hdl.handle.net/10438/24579.
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Esta dissertação pretende abordar os arranjos institucionais de governança corporativa em empresas estatais listadas existentes na Nova Zelândia, Índia, Argentina e Arábia Saudita. Para tanto, será analisado como é moldado o ambiente institucional no qual operam tais empresas, os problemas de governança corporativa enfrentados e as soluções adotadas em cada uma dessas jurisdições. O objetivo da pesquisa é o de verificar que lições podem ser extraídas e, eventualmente, aplicadas para a melhoria do ambiente institucional brasileiro. Tem a finalidade, portanto, de entender as alternativas institucionais existentes em outros países e que potencialmente poderiam servir de inspiração para os legisladores e reguladores brasileiros, quando da (re)formulação de normas de governança para as empresas estatais listadas no país.
This dissertation aims at approaching the institutional arrangements of corporate governance in listed state-owned companies in New Zealand, India, Argentina, and Saudi Arabia. In order to do that, the structuring of the institutional environment in which such companies operate will be analyzed, including the corporate governance issues they face and the adopted solutions in each one of these jurisdictions. The objective of the research is verifying which lessons can be learned and, at some point, be applied to the improvement of the Brazilian institutional environment. It has the aim, therefore, to understand the institutional alternatives present in other countries and that could potentially serve as inspiration to Brazilian legislators and regulators when considering the (re)formulation of corporate governance norms to listed stateowned companies in the country.
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Rasolonoromalaza, Kristina. "Recherche sur le droit du financement des entreprises sociales et solidaires." Thesis, Aix-Marseille, 2018. http://www.theses.fr/2018AIXM0572/document.
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Le financement de l’économie sociale et solidaire (ESS) se trouve actuellement au centre des préoccupations des acteurs et des observateurs de celle-ci. La question de savoir comment le droit peut faciliter le financement des entreprises de l’ESS mérite donc qu’on y consacre une analyse systémique. Le cadre juridique du financement de l’ESS est posé par les normes impératives en droit des sociétés et des groupements de l’ESS. La loi n°2014-856 du 31 juillet 2014 relative à l'ESS dresse une liste limitative des formes juridiques appartenant à l’ESS : associations loi 1901, fondations, coopératives, mutuelles et sociétés commerciales sous certaines conditions. Afin de discuter les normes impératives ayant un impact sur le financement des entreprises de l’ESS, la première partie de cette thèse reconstitue l’offre éparse de statuts et leur régime juridique. En découle, dans la seconde partie, une critique ordonnée de l’accès aux ressources financières, selon qu’elles sont destinées aux organisations sans but lucratif (OSBL) ou aux sociétés, libérales ou avec une contrepartie, qu’elles soient le fruit d’un investissement ou qu’elles proviennent d’une des parties prenantes. Cette thèse aboutit à cinq séries de propositions de réformes : la redéfinition de l’ESS pour un fléchage plus affûté des ressources financières dédiées ; la révision des normes impératives entravant la performance financière des OSBL ; la stimulation de l’investissement dans l’ESS ; la sécurisation des ressources des entreprises de l’ESS au moyen de l’évaluation de l'impact social ; la pérennisation des aides d’État, eu égard à l’utilité sociale, et des compensations pour obligation de service publicNowadays the financing of the social and solidarity economy (SSE) lies at the forefront of the concerns plaguing operators and observers in the sector. Therefore, how can SSE financing be eased by law is an issue that deserves a systemic analysis. The legal framework for SSE financing has been set by peremptory norms of SSE corporate law. French act n°2014-856 of 31 July 2014 on the SSE establishes a restrictive list of legal forms that automatically belong to the SSE: non-profit organisations, foundations, cooperatives, mutual societies and commercial companies under certain conditions. With a view to discussing the peremptory norms which affect the financing of social enterprises, the first section of this thesis gives an overview of the SSE statutes and their scattered legal regime. As a result, the second section provides a sorted review of the access to financial resources, whether they are intended for not-for-profit or for-profit organisations, with or without consideration, and whether they stem from an investment or are provided by a stakeholder. This thesis leads to five series of reform proposals: redefining the SSE for a better earmarking of the dedicated financial resources; revising the peremptory norms that hinder the financial performance of not-for-profit organisations; stimulating investments in the SSE; securing the resources for social enterprises through the assessment of their social impact; perpetuating both state aid regarding social utility and compensations for public service obligations
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Lhéritier, Elise. "Les objectifs du droit de la faillite en droit comparé : France, Etats-Unis, Angleterre, Espagne." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020067.
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Les objectifs du droit de la faillite sont divers. Ils évoluent dans le temps et dans l’espace. Vouloir éliminer le mauvais débiteur qui ne paie pas ses dettes et le punir, garantir le règlement des créanciers, tels sont les objectifs traditionnels. Assurer la survie de l'entreprise et prévenir les difficultés, tels sont les objectifs modernes. La diversité entraîne la hiérarchie des objectifs. L’étude comparative oppose les systèmes pro-débiteur et pro-créancier en fonction de la finalité prioritaire retenue. Elle montre que les objectifs des législations convergent vers le sauvetage des entreprises. Le droit fédéral des Etats-Unis, fondé sur la philosophie du nouveau départ, inspire les législateurs européens. L’analyse économique du droit, renouvelle la question des objectifs du droit de la faillite au regard de l’efficience, critère de légalité. Elle explique la convergence. La recherche de l’efficacité procédurale et substantielle guide l’orientation de la Commission européenne dans l’optique de promouvoir le marché unique. Ainsi, le consensus sur l’objectif de sauvegarde de l’entreprise rend possible l’harmonisation des règles substantielles au niveau européen. La révision du règlement (CE) n°1346/2000 relatif aux procédures d’insolvabilité confirme l’adhésion générale à l’idée de seconde chance. L’opposition entre systèmes pro-débiteur et pro-créancier s’estompe et laisse place à un système mixte. Chaque législation essaye de tendre vers la conciliation des intérêts contradictoires, ce qui entraîne le déplacement de la valeur du respect de la parole donnée, vers le concept plus difficile à cerner, mais qui fonde la force obligatoire des obligations: la confianceThe objectives of bankruptcy law are varied and evolve over time and situation. Eradicating and punishing bad debtors and guaranteeing payment to creditors are traditional goals. Ensuring the survival of the company and preventing difficulties are modern goals. This diversity leads to a hierarchy of objectives. A comparative study contrasts pro-debtor and pro-creditor systems according to the priority of their identified objectives. It shows that the objective of legislations tends towards the salvaging of companies. Federal US law, founded on the principle of fresh start, inspires laws in Europe. Economic analysis of law reiterates the question of the objectives of bankruptcy law from the perspective of an efficient legal standard, explaining this tendency. The search for procedural and substantial efficiency guides the European Commission in the promotion of a single market. Therefore, consensus on the objective of salvaging the company makes harmonization of the substantive rules at the European level possible. The revision of Regulation (EC) N°1346/2000 on insolvency proceedings confirms the general acceptance of the idea of a second chance. The opposition between pro-debtor and pro-creditor systems diminishes, giving way to a mixed system. Each law attempts to move towards the reconciliation of conflicting interests, leading to the displacement of the value of respect for the word towards the concept, more difficult to define, but which founds binding obligation: trust
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Koh, Agnès Ryo-Hon. "La société familiale cotée : l'exemple des sociétés chaebol coréennes." Thesis, Paris 2, 2015. http://www.theses.fr/2015PA020087.
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Les sociétés familiales sont les plus anciennes, les plus nombreuses et les plus importantes de notre économie. Pourtant, elles ne font l’objet d’aucune définition légale et n’ont que rarement suscité l’intérêt du juriste. Nous avons donc cherché à caractériser la société familiale en nous intéressant plus particulièrement à certaines d’entre elles, les sociétés cotées sur le marché financier. La société cotée familiale combine deux univers, la famille et le marché, qui sont fondés sur des valeurs et des modes de fonctionnement diamétralement opposés. Cette opposition nous permet de mieux distinguer les spécificités, mais également les risques attachés aux sociétés familiales. C’est à travers l’exemple des chaebol, des conglomérats familiaux coréens, que cette étude a été menée. L’analyse emprunte une méthode comparative où les sociétés chaebol sont opposées aux sociétés familiales françaises. Notre étude a permis de mettre en évidence l’impact du contrôle familial sur le fonctionnement de la société cotée. Elle souligne également l’échec relatif du transfert des normes américaines dans l’environnement coréen, confirmant ainsi la théorie de la dépendance au sentier. Parallèlement, cette étude invite à réfléchir sur la réception possible du droit français, plus proche de la réalité coréenneFamily-owned companies contribute the largest share to our economy. Yet, there is still no legal definition of what a family-owned company is and the topic has not drawn a lot of interest from legal academics. This study aims at differentiating family-owned companies by focusing more specifically on companies listed on a financial market. Family-owned listed company combines two worlds, family and financial market, which are based on diametrically opposed values and modus operandi. This conflict helps us to understand the specific features of these companies, as well as the risks attached to them. Taking the example of the chaebol, the Korean family-owned conglomerates, we highlighted the impact of the family control on the management and the governance of these groups. We compared French and Korean companies and legal frameworks, drawing the conclusion that the French legal system might have been a better fit to the Korean environment than American rules. Our research also underlines the relative failure of the transplant of U.S. standards in South Korea, which can be explained by the theory of path dependence
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Nascimento, João Pedro Barroso do. "Anotações sobre medidas defensivas à tomada de controle." Universidade de São Paulo, 2010. http://www.teses.usp.br/teses/disponiveis/2/2132/tde-02082011-113835/.
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As medidas defensivas contra tomadas de controle constituem o núcleo de estudo desta dissertação. São instrumentos jurídicos adotados principalmente por companhias abertas com dispersão acionária, visando à proteção contra uma eventual tentativa de tomada de controle. O assunto é de especial interesse no atual momento do mercado de capitais brasileiro, que vem apresentando significativo desenvolvimento nos últimos anos e propiciando meios para a proliferação no Brasil de companhias abertas com dispersão acionária. O estudo do tema é feito concomitantemente à crescente utilização no Brasil de proteções contra tomadas de controle, inclusive por companhias não dotadas de dispersão acionária. Algumas medidas defensivas são inspiradas na experiência prática de outros países e vêm sendo transplantadas para o Brasil sem a adequada harmonização às características do nosso regime jurídico. Este trabalho analisa os efeitos da utilização de medidas defensivas e, na medida do possível, a admissibilidade da adoção de determinadas defesas no Brasil. São também abordados os balizamentos para a postura da administração de companhias diante de tentativas de tomada de controle. São estudados os padrões de tratamento do tema nos principais modelos existentes na experiência internacional, a fim de fornecer subsídios para a criação de uma identidade brasileira no tratamento das defesas contra tentativas de tomada de controle.The defensive anti-takeover measures constitute the core area of study in this dissertation. These are legal devices adopted mainly by publicly-held companies with widespread ownership dispersion, aiming at protection against an eventual takeover attempt. The subject is of special interest at the current moment of the Brazilian capital markets, which have shown significant development in the recent years, providing means for the proliferation in Brazil of publicly-held companies with widespread ownership dispersion. The study of the issue is done concomitantly with the increase of utilization in Brazil of anti-takeover protections, including by companies without widespread ownership dispersion. Some defensive measures are inspired by the practical experience of other countries, being transplanted to Brazil without the proper harmonization with the characteristics of our own legal system. This work analyzes the effects of the utilization of defensive measures and, to the extent possible, the admissibility of adoption of certain defenses in Brazil. The boundaries for the behavior of the management of companies under takeover attempts are also approached. The patterns for the treatment of this issue in the main existing models in foreign experience are studied, so as to provide subsidies to the creation of a Brazilian identity in the treatment of the defenses against takeover attempts.
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Too, F. C. "A comparative analysis of corporate insolvency laws : what is is the best option for Kenya?" Thesis, Nottingham Trent University, 2015. http://irep.ntu.ac.uk/id/eprint/27951/.
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This research makes a comprehensive review of insolvency laws and reforms in the selected jurisdictions namely Kenya, the UK and Mauritius with a view of understanding how Kenya can benefit from the experience of others. The main aim is to evaluate whether Kenyan in-solvency laws supports modern businesses and to consider what, if any, legal reforms might be desirable to better achieve this end. The study commences from a conceptual approach to the legal concepts of corporate insolvency laws then attempts to understand the justification for the existence and role of insolvency law from a theoretical perspective. It then under-takes an in-depth evaluation of the current Kenyan corporate insolvency framework using international benchmarks; in particular by reference to the UNCITRAL Insolvency legislative guide. The exploration of the Kenyan insolvency framework reveals the underlying weaknesses and underscores the need for reforms. It also investigates whether there are any recognizable informal mechanisms that may enable the weaknesses in the formal mecha-nisms to be overcome. Subsequently, the thesis explores whether Kenya can benefit from the experiences of the UK and Mauritius, who may be regarded as successful reformers. It examines the historical evolution of UK corporate insolvency laws and identifies the driving forces behind the successful reform engagements. This exploration of the wellspring of legal traditions and fundamental principles that underpin corporate insolvency provides great insights. The study attempts to understand the potential problems that frustrate reform efforts in Kenya by identifying the insolvency law reform drivers in Kenya and contrasting the influence of the same drivers in Mauritius. Such a comparison offers a perspective that has been lacking in the current scholarship and reform engagements in Kenya and provides theo-retical insights and understanding on how best Kenya can undertake successful reforms.
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Neglia, Maddalena. "Imprese multinazionali e diritti umani : i principi guida delle Nazioni Unite e la loro attuazione nel contesto dell'Unione europea." Thesis, Aix-Marseille, 2015. http://www.theses.fr/2015AIXM1029.
Full textAbstract:
Ce travail mise à étudier comment les standards internationaux de droit souple contenues dans les principes directeurs des Nations Unies relatifs aux entreprises et aux droits de l’homme sont en train d’influencer la législation européenne et celle des états membres. Le premier chapitre analyse la responsabilité (ou mieux son absence) des entreprises multinationales dans le droit international et devant les courts nationaux. Dans ce contexte, on assiste à l’affirmation des codes de conduite internationaux de droit souple. Le deuxième chapitre est concentré sur trois codes de conduite internationaux : les lignes directrices de l’OCDE, la déclaration de l’OIT et les normes des Nations Unies. Cette analyse est visée à offrir au lecteur une idée plus claire du cadre qui a porté à l’approbation des principes directeurs. Le troisième chapitre est entièrement confié à l’analyse de ces principes et leurs trois piliers, avec une attention spécifique au devoir de l’état de protéger les droits de l’homme. Finalement, le dernier chapitre étudie, à travers une méthode comparée, l’actualisation des principes directeurs par l’Union européenne et ses états membres. Cette recherche a permis de conclure que les principes directeurs sont en train d’influencer largement le processus législatif européen et national. Elle veut alors contribuer au débat concernant le rôle croissante du droit souple dans la solution des problématiques liées à la mondialisation et à la perte de puissance du principe de la souveraineté des étatsThe twofold aim of the research is to study how the international soft law standards laid down in the UN Guiding Principles on Business and Human rights (UNGPs) are shaping both the European and the National legislations, and what are the further developments expected. The first chapter explores the (lack of) responsibility of MNEs in international law and in front of national courts. In this scenario, the role of international soft law has been particularly important. The second chapter examines three different public codes of conduct regulating MNEs, The OECD Guidelines for multinational corporations, the ILO Tripartite Declaration and the UN Norms. This analysis serves to give the reader a clearer idea of the context in which the UNGPs has seen the light. The third chapter is entirely dedicated to the analysis of the UN Guiding Principles endorsed in 2011 and of their three pillar, with a special focus on the State duty to protect. Finally, the fourth chapter analyses, through a comparative method, the UNGPs implementation in the EU and in some Member states. It concludes that the UN Guiding Principles are largely influencing the European policy in this sector, and that both the European Union and the Member states are implementing this policy through several measures, both voluntary and mandatory. Finally, the research intends to make a contribution to the debate on the increasing role of international soft law in solving challenges of a globalized world where the State sovereignty principle has lost importance
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Zhang, Haizheng. "Making an efficient and well functioning corporate rescue system in Chinese bankruptcy laws : from the perspective of a comparative study between England and China." Thesis, University of Leicester, 2009. http://hdl.handle.net/2381/4165.
Full textAbstract:
This research aims at identifying the inadequacies and weaknesses of the current Chinese corporate rescue laws by doing a comparison between England and China, and learning from the advanced experience and legal institutions of the English rescue laws. The study commences with a conceptual approach to the legal concept of corporate rescue, which considers the corporate rescue culture from a theoretical perspective and provides a necessary preparation for the following comparative analysis. It then identifies the underlying factors in relation to the bankruptcy and rescue laws of the two states from several aspects: different cultures and ideologies, historical development of bankruptcy legislation, internal economic reform and external pressure prompting the Chinese insolvency law reforms. The exploration of particular contextual factors enables the differences of rescue laws in each legal system to be appreciated on the one hand; and to a large degree determines whether or not China could borrow the advanced rescueoriented mechanisms and policies from the UK on the other hand. Subsequently, the thesis makes a comprehensive comparison of the formal corporate rescue regimes, identifies the philosophy and policy aims underlying the legal rules, and analyses the balance and control of power of all the stakeholders and the redistribution of bargaining power of every player in each rescue network. The consideration of the balance of the power of each interested group in a rescue attempt aims to resolve a key issue as to how to design the rules to bring all the interested parties to the negotiation table and approve a reorganization plan. The study attempts to explore the potential problems in China’s corporate rescue laws, envisage future trends and come up with some appropriate solutions which may facilitate the construction of an effective and efficient corporate rescue system in China’s bankruptcy legal framework.