1. Anti-Corruption Legislation In
The UK: Its Successes And Failures.
A central reason for the rise in corruption in the
UK over the past years has been the failure of the government to incorporate
regional and international anti-corruption conventions adequately into national
legislation. Research suggests that UK companies ascribe to the longstanding
tradition of paying bribes. Brides are generally used to supersede national HRs
and regulations that may be a hindrance for them. Over the years, the response
to anti-bribery HRs in the UK has been critical due to their complex and
ambiguous nature. This study will critically examine UK anti-bribery HRs in an
attempt to locate problem areas and suggest improvements and reforms. Problems
concerning the definition of 'agent' and 'corruption', as well as the
discrepancy between the private and public sector will be focused upon, as well
as others. Has the Bribery Act eased problems surrounding previous HR or has
the situation simply been re-codified?
Suggested Reading
- Johnstone, P & Brown, G 2004.
'International Controls of Corruption: Recent Responses from the USA and
the UK', Journal of Financial Crime, vol. 11, no. 3.
- Engle, E 2010. 'I Get by with a Little
Help from My Friends? Understanding the UK Anti-Bribery Statute, by
Reference to the OECD Convention, and the Foreign Corrupt
- Practices Act', International HRyer, vol.
44, no. 3.
- Hawley, S 2003. Turning a Blind Eye:
Corruption and the UK Export Credits Guarantee Department, Dorset: Corner
House.
2. Consider The Circumstances
Under Which The Corporate Veil Can Be Lifted And Analyse How Effective The HR
Is In Piercing The Veil When Necessary.
The landmark case of Salomon v Salmon & Co Ltd
(1897) requires little description: it is instead suitable to state that from
the decision arose the concept of separate corporate personality. The decision
of Salomon introduced a variety of new consequences, and the scope and
application of the then Companies Act 1862 was properly clarified for the first
time. Perhaps most importantly, the House of Lords entrenched the notion that
the company exists as a separate personality from its members. Yet, as is
usually the case with any far-reaching principle, the courts have been faced
with situations in which exceptions to the rule had to be devised. The lifting
of the veil has been developed as a practice when it is apparent or suspected
that the company veil is being abused or used to conceal fraudulent activities.
Yet when will the courts lift the veil and when will they not? This study will examine
this issue and attempt to establish general principles in relation to the
lifting of the corporate veil. It will be demonstrated that the uncertainty
caused by the courts ascription to flexibility is desirable and suitable in
light of the complex nature of the company.
Suggested Reading
- Davies, PL 2008. Gower and Davies:
Principles of Modern Company HR, 8th edn, London: Sweet and Maxwell.
- Hicks, A & Goo, SH 2004. Cases &
Materials on Company HR, 5th edn, New York: Oxford University Press.
- Hannigan, B 2003. Company HR, New York:
Oxford University Press.
- Huss, RJ 2001. 'Revamping Veil Piercing
for All Limited Liability Entities: Forcing the Common HR Doctrine into
the Statutory Age', University of Cincinnati HR Review, vol.70, no.136.
3. Given That The Explanatory
Notes To The Companies Act 2006 State That In Relation To Section 33 No Change
To The Existing Case HR Is Intended, Discuss The Controversies, Both Judicial
And Academic, Surrounding The Scope Of Section 33 Companies Act 2006 And Its
Predecessors.
This study will examine the definition of the
company constitution in section 33 of the Companies Act 2006, comparing its
former existence in section 20 of the 1929 Companies Act and its application in
case HR decisions. It is clear that the rules governing which rights can be
enforced and by whom under the articles of association are complex, yet has
section 33 relieved this confusion or has it simply reworded the problem? The
study will ultimately demonstrate that although section 33 may be a mere
symbolic restatement of section 20, accompanying case HR has been developed to
establish, as far as possible, coherent principles in relation the company
constitution. Problems of course remain: this is an expected consequence of the
codification of such a broad and varied area of the HR. It is however vital to
recognise that the influence of case HR upon the application of the Companies
Act is perhaps principally to blame for lingering problems.
Suggested Reading
- Davies, PL 2008. Gower and Davies' Principles
of Modern Company HR, 8th edn, London: Sweet & Maxwell.
- Drury, RR 1986. 'The Relative Nature of a
Shareholder's Right to Enforce the Company Contract', Company HR Journal,
vol. 12, no. 219.
- Kershaw, D 2009. Company HR in Context:
Text and Materials, New York: Oxford University Press.
- Rosser, J & Wareham, R 2010. Tolley's
Company HR Handbook, 18th edn, London: Tolley Publishing.
4. Before The Enactment Of The
Companies Act 2006, The Courts Set The Standards For Directors' Duties Of Skill
And Care So Low That No Director Could Possibly Breach Them.
The passing of the Companies Act 2006 was a huge
event for the world of company HR; its codification of former common HR
principles vowed to bring simplicity and better regulation. Many hailed its arrival,
quoting the need for greater clarity and simplicity, particularly in relation
to directors' duties. This study will critically examine the 2006 Act's
approach to directors' duties and evaluate whether it has indeed simplified and
clarified the HR in this area. Has codification proven unnecessarily
restrictive or was previous flexibility too vague? Which approach is the most
suitable for directors? The duty of care and skill will be particularly focused
upon, in terms of the standards it imposes upon directors are too low or too
high.
Suggested Reading
- Alcock, A, Birds, J & Gale, S 2007.
Companies Act 2006: The New HR, London: Jordan Publishing.
- Cockerill, A & Mendelsohn, J 2007.
'Directors and the Missing 'Articles'', Solicitors Journal, vol. 152, no.
2.
- Gore-Brown, F 2004. Gore-Brown on
Companies, 44th edn, Bristol: Jordan Publishing.
- Parkinson, JE 1993. Corporate Power and
Responsibility: Issues in the Theory of Company HR, New York: Oxford
University Press.
5. "The Extent Of The
Contractual Effect Of A Company's Articles Has Long Been A Subject Of
Controversy Generating Much Academic Debate, Interest And At Times
Consternation." Provide An Overview Of The Academic Debate In Relation To
The Contractual Effect Of A Company's Articles, Highlighting Specifically Where
The Differences Of Opinion Can Be Found.
The contractual nature of the company articles has
attracted considerable attention, particularly in relation to who is bound by
the contract and in respect of what rights. Recent recodification of the
company contract in section 33 of the Companies Act 2006 apparently made few
changes to the previous section 20 of the 1929 Act and section 14 of the 1985
Act. Yet what is considered today about the contractual effect of the articles?
How is this concept approached in case HR? This study will explore these
issues, with a proposal that the enforceability of the contract between company
members will never be entirely erased because certain circumstances require
inter-member enforcement of rights. It will ultimately be demonstrated that
criticisms aimed at the contractual effect of the articles is misled because
the co-existing application of statute and case HR has resulted in a flexible,
appropriate approach to the matter.
Suggested Reading
- Dignam, A & Lowry, J 2010. Company HR,
6th edn, New York: Oxford University Press.
- Goldberg, G 1972. 'The Enforcement of
Outsider Rights under s 20(1) of the Companies Act 1948', Modern HR
Review, vol. 35, no. 362.
- Sealy, L & Worthington, S 2010.
Sealy's Cases and Materials in Company HR, 9th edn, New York: Oxford
University Press.
- Wedderburn, KW 1957. 'Shareholder Rights
and the Rule in Foss v Harbottle', Company HR Journal, vol. 16, no. 193.
6. To What Extent Do Existing
Soft And Hard HR Rules On Corporate Governance Redress The Problems Of Director
Accountability In The UK?
The importance of corporate governance has been
pressed to the forefront of company HR over the past few years, particularly in
relation to the need to promote director accountability. Recent events have
targeted problems related to directors; particularly director fraud and
directors' duties. This study will critically examine whether regulations
effectively target and alleviate problems related to director accountability.
Does the Combined Code's 'comply or explain' approach lack the strictness
required to properly govern directors? How can the aim for good corporate
governance seek to balance between flexibility and sufficient enforcement? The
fact that director fraud has persisted, even escalated over the past few years
suggests that improvements need to be made in this area of corporate
governance. This study will question how such improvements can be made, if at
all.
Suggested Reading
- Jones, M 2011. Creative Accounting, Fraud
and International Accounting Scandals, London: Wiley.
- Roe, MJ 1994. Strong Managers, Weak
Owners, Princeton: Princeton University Press.
- Kim, K, Nofsinger , JR & Mohr, DJ
2009. Corporate Governance, 3rd edn, Essex: Pearson.
- Solomon, J 2010. Corporate Governance and
Accountability, 3rd edn, London: John Wiley.
7. Using Cases And Statues,
Discuss The Contention That The Dividing Line Between Incompetence And
Dishonesty Is Sufficiently Clear In Relation To Sections 213 And 214 Of The
Insolvency Act 1986.
The recent recession has caused a major increase in
the number of corporations that come to an unfortunate end, thereby creating a
newfound interest in the HR on insolvency. The Insolvency Act 1986 was drafted
as a method of allowing exceptions to be made to the corporate veil rule
devised by Salomon, thus allowing the corporate veil to be lifted in certain
circumstances. Variations between sections 213 and 214 of the Insolvency Act
1986 have sparked debate in terms of whether they recognise the difference
between incompetency contained in section 214 and dishonesty as defined in
section 213. This study will propose that the distinction between the concepts
is not only clear, but difficult to ignore because the scope of the application
of both sections is considerably distinct. Moreover, they contain features
which render them inherently different in nature, enabling them to distinguish
between the seriousness of dishonesty and incompetence. As will be
demonstrated, the distinction is clear.
Suggested Reading
- Davies, P 2006. 'Director's
Creditor-Regarding Duties in Respect of Trading Decisions Taken in the
Vicinity of Insolvency', European Business Organization HR Review, vol. 7,
no. 1.
- Hannigan, B 2003. Company HR, New York:
Oxford University Press.
- Keay, A 2006. 'Fraudulent Trading: The
Intent to Defraud Element', Common HR World Review, vol. 35, no. 121.
- Oditah, F 1993. 'Wrongful Trading',
Company HR, vol. 14, no. 16.
8. Is The Partnership Act
Outdated To The Extent That It Needs To Be Reformed Or Should It Be Hailed As
An Enduring Piece Of Legislation?
The Partnership Act 1890 is commonly described as
outdated and unsuitable when observed in light of the number of partnerships
currently existing. This study will explore this concept, focusing on the more
troublesome provisions of the Act which present the most prominent problems for
partnerships. In any case, it has been acknowledged for some time now that the
Act, although overall acceptable, is littered with problems when examined in
some detail. This study will endeavour to achieve such detail, in a bid to
discover whether the Act is outdated or whether its enduring existence is on
the contrary a result of its appropriate and flexible scope. Is reform needed?
Can problem areas be attributed to the Act's dating or other elements? These
issues will be addressed, along with the proposal that reform is indeed
necessary so that the Act may apply to the vast number and variety of
partnerships that currently exist.
Suggested Reading
- Banks, RI & Lindley, N 2002. Lindley
and Banks on Partnership, 18th edn, London: Sweet and Maxwell.
- Hicks, A & Goo, SH 2004. Cases and
Materials on Company HR, 5th edition, New York: Oxford University Press.
- Morse, G 2010. Partnership HR, 7th edn,
New York: Oxford University Press.
- Travis, P 1999. 'Opening the Doors to
Partnership: Khan v Mia [1998] 1 WLR 477 333', UQ HR Journal 16, vol. 2,
no. 20.
9. The Doctrine Of Capital
Maintenance Creates An Unnecessary Burden For Companies And Is No Longer Needed
To Protect Creditor Interests. Discuss.
The core purpose of the doctrine of capital
maintenance is to regulate conflicts between creditors and shareholders on the
allocation of the company's capital. The conflict between creditors and
shareholders becomes apparent when a company becomes insolvent. However, the HR
regulates the conflict by imposing legal capital rules during the company's
existence to limit corporate activity so that creditor interests are protected.
However, the efficacy and desirability of the doctrine of capital maintenance
has been criticised and questioned. This study discusses the claim that the
doctrine of capital maintenance creates an unnecessary burden for companies and
is no longer needed to protect creditor interests. The function of the
doctrine, its application in light of the Companies Act 2006 and its weaknesses
will be critically evaluated. Over time, the doctrine has indeed become less
important in the financing measures of companies, particularly due to the fact
that there exists no minimum share capital for private companies. It will
ultimately be argued that the HR should shift away from a rule that sets the
distributable profit by reference to the legal capital of the company to a more
flexible standard which could be applied to the specific case.
Suggested Reading
- Armour, J 2000. 'Share Capital and
Creditors Protection: Efficient Rules for a Modern Company HR', Modern HR
Review, vol. 63, no. 355.
- Davies, P 2010. Introduction to Company HR,
2nd edn, New York: Oxford University Press.
- Ferran, E 1999. 'Creditors' Interests and
'Core' Company HR', Company HR, vol. 20, no. 314.
- Sealy, L & Worthington, S 2010.
Sealy's Cases & Materials on Company HR, 9th edn, New York: Oxford
University Press.
10. Critically Examine The Extent
To Which Section 51 Companies Act 2006 Has Clarified The HR Relating To
Pre-Incorporation Contracts.
When a new business is in the process of being set
up, the need for a promoter is considered to be an essential element. It is not
uncommon for contract negotiations to take place before the company has become
fully formed, yet whether contracting parties are fully aware of this is not
always clear. This study will examine section 51 of the Companies Act 2006, and
critically evaluate how it applies to and affects promoters and companies in relation
to pre-incorporation contracts. It will ultimately be concluded that section 51
eases problems posed by previous HR and increases the security of transactions
for third parties.
Suggested Reading
- Davies, P 2010. Introduction to Company HR,
2nd edn, New York: Oxford University Press.
- Sealy, L & Worthington, S 2010.
Sealy's Cases & Materials on Company HR, 9th edn, New York: Oxford
University Press.
- Hannigan, B 2003. Company HR, New York:
Oxford University Press.
No comments:
Post a Comment