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Journal articles on the topic 'Shareholders derivative suit'

Author: Grafiati

Published: 4 June 2021

Last updated: 1 February 2022

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1

Hai, Lien Dang Phuoc. "A comparison of Japan and Vietnam legal approaches to derivative suit." Science & Technology Development Journal - Economics - Law and Management 4, no. 2 (June 21, 2020): First. http://dx.doi.org/10.32508/stdjelm.v4i2.626.

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Derivative suits are claims brought by a shareholder or a group of shareholders on behalf of the company to redress for wrongdoings of the directors when those in the company’s control refuse to assert a claim usually because of a conflict of interest. The derivative suit is not only to seek recovery of damages by a plaintiff shareholder but also serves as a further threatening tool that can be a possible deterrent to the neglect of duties by directors and other officers of the company [9]. In Vietnam, the derivative suit mechanism was first adopted by Vietnamese corporate law since Decree No. 102/2010/ND-CP (Decree 102) under the term “Shareholder’s right to sue members of the Board of Management and/or Director (General Director)”, rather than “derivative suit”. The regulatory framework for derivative suits has since been revised and contemplated under the latest Law on Enterprises of Vietnam, which was passed by the National Assembly in 2014. Under this scheme, a shareholder or a group of shareholders holding at least one percent (1%) of the total number of ordinary shares in a Joint Stock Company (JSC) for six consecutive months may bring a lawsuit on behalf of the company against the directors who breach their duties. Still, the practicability and usability of this derivative suit mechanism seem questionable because of a plethora of defects and shortcomings in the statutory derivative suit along with the lack of interest in litigation on the part of shareholders. This article undertakes the analytical review of the substance of the statutory derivative suit in Vietnam and Japan and from the comparison between the two systems, provides recommendations to improve the Vietnamese legislation.

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2

Lapina, Yuliya, Alexander Kostyuk, Udo Braendle, and Yaroslav Mozghovyi. "Shareholders rights and remedies (comparative law perspective)." Corporate Board role duties and composition 12, no. 3 (2016): 6–13. http://dx.doi.org/10.22495/cbv12i3art1.

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The main aim is to discuss shareholder rights protection in Ukraine and Germany, which have the same Civil law legal system. Our contribution outlines, systemizes and accesses approaches how critical and weak issues in the area of shareholder protection are resolved in both countries using the mechanisms of corporate governance. Using Germany as a benchmark, the paper identifies that the most important and efficient mechanisms of shareholders rights protection, which can be implemented in Ukrainian companies are the following: principle of equal treatment and duty of loyalty which should be fixed in the legislation; enhancing the role of the National Securities and Stock Market Commission; introduction of the derivative suit system.

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3

손영기. "A Study on China’s New Company Law Shareholders’ Derivative Suit." Chinese Law Review 10, no. ll (December 2008): 19–48. http://dx.doi.org/10.22415/clr.2008.10..002.

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4

Hwang, Geun-Su. "Double Derivative Suit and Shareholders' Protection under the Korean Corporate Groups." BUSINESS LAW REVIEW 30, no. 1 (March 31, 2016): 167. http://dx.doi.org/10.24886/blr.2016.03.30.1.167.

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5

손창일. "The Shareholders’ Derivative Suit and the Special Litigation Committee in U.S. Corporate Law." HUFS Law Review 35, no. 4 (November 2011): 149–68. http://dx.doi.org/10.17257/hufslr.2011.35.4.149.

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6

Kwon, Jaeyeol. "A Critical Review of Some Proposals for the Improvement of Shareholders’ Derivative Suit: In Case of Listed Corporations." Commercial Law Review 37, no. 2 (August 31, 2018): 167–95. http://dx.doi.org/10.21188/clr.37.2.5.

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7

Latella, Dario. "The shareholder derivative suits: disfunction and remedies against a "paradoxal" inactivity." Corporate Ownership and Control 7, no. 4 (2010): 297–302. http://dx.doi.org/10.22495/cocv7i4c2p5.

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The derivative action exerted by shareholders (rectius, by a single shareholder or by a minority of them) falls within the wider topic of the defence of shareholder minorities. Considered as one of the pillars of corporate governance, the above-mentioned subject tends to be a control tool as to the accurate execution of the managerial task. Some empirical studies show that, in spite of corporate fraud by managers, in listed companies there are no such lawsuits. This “physiological paradox” – under which the others’ indifference enables a few organised individuals to control the company – has urged the need for a deep re-examination of control power over management. According to the European Directive on the Cross-border Exercise of Shareholders’ Rights, effective shareholder control is a prerequisite to sound corporate governance and should, therefore, be facilitated and encouraged. But control power over management is usually based on “empty” procedures and frequently false meeting practices. The fundamental “hypocrisy” of corporate governance is due to different quality and quantity of information available for deeply different groups of people. From this point of view, the European Directive makes it easier to exercise some traditional rights, but still does not give a “full” right to be informed about management.

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8

Kwon, Jae-Yeol. "Some Thoughts on the Corporation's Intervention in the Shareholder Derivative Suit." Kyung Hee Law Journal 52, no. 4 (December 30, 2017): 3–26. http://dx.doi.org/10.15539/khlj.52.4.1.

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9

Sealy, L. S. "Company Law—The Derivative Suit and the Shareholder With Unclean Hands." Cambridge Law Journal 44, no. 3 (November 1985): 368–70. http://dx.doi.org/10.1017/s0008197300114849.

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10

Garth, Bryant G., Ilene H. Nagel, and Sheldon J. Plager. "Empirical Research and the Shareholder Derivative Suit: Toward a Better-Informed Debate." Law and Contemporary Problems 48, no. 3 (1985): 137. http://dx.doi.org/10.2307/1191536.

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11

Jae Yeol Kwon. "Proposed Reform of Shareholder Derivative Suit －In Consideration of the Judicial Decisions－." Korean Journal of Securities Law 16, no. 2 (August 2015): 135–68. http://dx.doi.org/10.17785/kjsl.2015.16.2.135.

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12

Oquendo, Ángel R. "Six Degrees of Separation: from derivative suits to shareholder class actions." Seqüência: Estudos Jurídicos e Políticos 37, no. 73 (August 21, 2016): 37. http://dx.doi.org/10.5007/2177-7055.2016v37n73p37.

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http://dx.doi.org/10.5007/2177-7055.2016v37n73p37As ações transindividuais revolucionaram o direito contemporâneo. Especificamente, o direito empresarial tomou parte neste fenômeno. Por exemplo, na ação derivativa, indivíduos – os acionistas – estão legitimados a litigar em nome de uma coletividade, em relação a assuntos da corporação. O objetivo deste artigo é analisar essa ação derivativa, comparando-as com as ações coletivas de acionistas em geral, explicitando que os dois procedimentos detêm apenas similitudes superficiais, mas divergem em nível mais profundo. A ação derivativa objetiva a proteção de um genuíno direito coletivo e indivisível, enquanto as demais ações coletivas de acionistas asseguram uma agregação de direitos individuais. Consequentemente, diferem na forma de representação, sobretudo em sua adequação, na equidade interna do procedimento e no objetivo que perseguem. O estudo dessa dicotomia contribui não só na compreensão dessas duas formas de processo, mas noentendimento da própria corporação e a relação entre ela e a sua diretoria, investidores e mesmo os demais stakeholders. No mais, sugere-se a necessidade de uma nova interpretação para a distinção entre as citadas ações, considerando a natureza do direito em jogo.

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13

Lamoreaux, Naomi R., and Laura Phillips Sawyer. "Voting Trusts and Antitrust: Rethinking the Role of Shareholder Litigation in Public Regulation, from the 1880s to the 1930s." Law and History Review 39, no. 3 (August 2021): 569–600. http://dx.doi.org/10.1017/s0738248021000304.

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Scholars have long recognized that the states’ authority to charter corporations bolstered their antitrust powers in ways that were not available to the federal government. Our paper contributes to this literature by focusing attention on the relevance for competition policy of lawsuits brought by minority shareholders against their own companies, especially lawsuits challenging voting trusts. Historically judges had been reluctant to intervene in corporations’ internal affairs and had been wary of the potential for opportunism in shareholders’ derivative suits. By the end of the nineteenth century, however, they had begun to revise their views and see shareholders as useful allies in the struggle against monopoly. Although the balance between judges’ suspicion of and support for shareholders’ activism shifted back and forth over time, in the end the lawsuits provoked state legislatures to strengthen antitrust policy by making devices like voting trusts unsuitable for purposes of economic concentration.

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14

Grechenig, Kristoffel, and Michael Sekyra. "No derivative shareholder suits in Europe: A model of percentage limits and collusion." International Review of Law and Economics 31, no. 1 (March 2011): 16–20. http://dx.doi.org/10.1016/j.irle.2010.09.001.

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15

Kim, Hyo Jung. "Special Problems Regarding the Civil Enforcement Standing : Focusing on the Enforcement of the Shareholder’s Derivative Suits." Journal of Civil Judgment Enforcement Law 16 (February 29, 2020): 76–114. http://dx.doi.org/10.29153/jcjel.2020.16.1.002.

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16

Park, Jeong-Ku. "Study on the Shareholders’ Protection and the Introduction of Multiple Derivative Suits with regard to the Commercial Act Amendment." BUSINESS LAW REVIEW 31, no. 2 (June 30, 2017): 155–85. http://dx.doi.org/10.24886/blr.2017.06.31.2.155.

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17

Park, Jeong-kuk. "When the shareholder loses the status in the company against his or her will, does the shareholder lose standing to sue of derivative suit? - based upon Korean Supreme Court Decision 2017Da35717 sentenced in November 29th, 2018 -." commercial cases review 33, no. 2 (June 30, 2020): 191–247. http://dx.doi.org/10.36894/kcca.2020.33.2.191.

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18

Latella, Dario. "Shareholder Derivative Suits: A Comparative Analysis and the Implications of the European Shareholders' Rights Directive." European Company and Financial Law Review 6, no. 2-3 (January 2009). http://dx.doi.org/10.1515/ecfr.2009.307.

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19

"Reforming the Shareholder’s Derivative Suit in Nigeria: Perspectives from the United States." Journal of Law, Policy and Globalization, February 2020. http://dx.doi.org/10.7176/jlpg/94-12.

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20

Asaoka, Daisuke. "A Behavioural-economic Perspective on Conflicts of Interest Among Shareholders, Debtholders, and Directors." Journal of Interdisciplinary Economics, July 17, 2020, 026010792093420. http://dx.doi.org/10.1177/0260107920934204.

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Corporations have conflicts of interest among shareholders, debtholders and directors, and, corporate law gives each party avenues to pursue others, while protecting themselves. While debtholders are exposed to excessive risk-taking by directors and abuse of limited liability by shareholders, they are protected by legal institutions like directors’ liabilities to third parties and piercing of the corporate veil. Shareholders are subject to the risk of veil-piercing and director negligence, but they are protected by derivative suits. And directors, while under threat of liability suits by debtholders and shareholders, are protected by the business judgement rule, liability exemption and liability insurance of directors and officers (D&O). This web of legal institutions comprises a dual structure of economic and psychological factors, built upon economic incentives but also upon such psychological factors as bounded rationality, the chilling effect, the desire for certainty, loss aversion and the sense of fairness. Any change in the balance will affect their behaviour; greater protection of directors, for example, provokes greater risk-taking, both economically and psychologically. JEL: K22, G41, D91

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21

Gelter, Martin. "Why do Shareholder Derivative Suits Remain Rare in Continental Europe?" SSRN Electronic Journal, 2012. http://dx.doi.org/10.2139/ssrn.2000814.

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22

Oquendo, ngel R. "Six Degrees of Separation: From Derivative Suits to Shareholder Class Actions." SSRN Electronic Journal, 2014. http://dx.doi.org/10.2139/ssrn.2426460.

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23

Leahy, Joseph Kieran. "Shareholder Derivative Suits to Challenge Corporate Super PAC Contributions: A Closer Look." SSRN Electronic Journal, 2013. http://dx.doi.org/10.2139/ssrn.2304852.

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24

Grechenig, Kristoffel R., and Michael Sekyra. "No Derivative Shareholder Suits in Europe - A Model of Percentage Limits and Collusion." SSRN Electronic Journal, 2010. http://dx.doi.org/10.2139/ssrn.1591402.

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25

Grechenig, Kristoffel R., and Michael Sekyra. "No Derivative Shareholder Suits in Europe - A Model of Percentage Limits, Collusion and Residual Owners." SSRN Electronic Journal, 2007. http://dx.doi.org/10.2139/ssrn.933105.

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26

Gindis, David, and David Gibbs. "De Jure Convergence, De Facto Divergence: A Comparison of Factual Implementation of Shareholder Derivative Suit Enforcement in the United States and the United Kingdom." SSRN Electronic Journal, 2019. http://dx.doi.org/10.2139/ssrn.3576569.

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27

Nelson, William Alan. "Ending the Silence: Shareholder Derivative Suits and Amending the Dodd-Frank Act so 'Say on Pay' Votes May Be Heard in the Boardroom." SSRN Electronic Journal, 2012. http://dx.doi.org/10.2139/ssrn.1988544.

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