Notes: Removing directors under Maryland law

Notes: Removing directors under Maryland law

Authors James J Hanks Jr, Michael D Schiffer, Carmen M Fonda

ISSN: 2521-2575
Affiliations: Partner, Venable LLP, Baltimore, MD; Partner, Venable LLP, Baltimore, MD; Partner, Venable LLP, Baltimore, MD
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 2 Issue 1, 2016, p. 57 – 58

Abstract

The following was originally prepared as a memo to clients and other interested persons from Venable LLP, the leading law firm in Maryland, which is the state of formation for more New York Stock Exchange-listed companies than any state other than Delaware. As Maryland has an exceptionally well-developed general corporation statute, based in many respects on the Model Business Corporation Act (US), we are happy to pass along, with Venable’s kind permission, these occasional memos. Jim Hanks, one of the authors of this memo, assisted in the drafting of the South African Companies Act, 2008.

Notes: Exclusive forum bylaws in the United States – new research shows favourable impact

Notes: Exclusive forum bylaws in the United States – new research shows favourable impact

Authors James J Hanks Jr, Daniel RH Mendelsohn

ISSN: 2521-2575
Affiliations: Partner, Venable LLP, Baltimore, MD; An associate in Venable’s corporate group
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 2 Issue 1, 2016, p. 52 – 56

Abstract

The following was originally prepared as a memo to clients and other interested persons from Venable LLP, the leading law firm in Maryland, which is the state of formation for more New York Stock Exchange-listed companies than any state other than Delaware. As Maryland has an exceptionally well-developed general corporation statute, based in many respects on the Model Business Corporation Act (US), we are happy to pass along, with Venable’s kind permission, these occasional memos. Jim Hanks, one of the authors of this memo, assisted in the drafting of the South African Companies Act, 2008.

Notes: Alterable and unalterable provisions of the Companies Act 71 of 2008: Recent cases expose inherent uncertainties

Notes: Alterable and unalterable provisions of the Companies Act 71 of 2008: Recent cases expose inherent uncertainties

Authors Helena Stoop

ISSN: 2521-2575
Affiliations: Lecturer in Law, University of Cape Town
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 2 Issue 1, 2016, p. 40 – 51

Abstract

None

Land acquisitions by foreign-owned companies and possible human rights implications

Land acquisitions by foreign-owned companies and possible human rights implications

Authors Catherine Plit, Herbert Kawadza

ISSN: 2521-2575
Affiliations: Attorney at Schindlers Attorneys, Johannesburg; Senior Lecturer in the School of Law of the University of the Witwatersrand, Johannesburg
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 2 Issue 1, 2016, p. 17 – 39

Abstract

Large multinational companies and foreign governments have shown considerable interest in foreign arable land, particularly in Sub-Saharan Africa. This growing development has been lauded by the host countries as a necessary tool aimed at aiding economic development. Despite such justifications, there is also evidence showing that such land acquisitions are associated with human rights violations. This article seeks to explore and examine this recent global trend. It investigates the underlying reasons for this increased agricultural interest, and seeks to identify and explain the detrimental consequences of these land deals for the human rights of vulnerable communities living within the host states. The international community has recognised the existence of such adversarial consequences and, as a result, the last few years have seen a flurry of various attempts aimed at governing the issue in one way or another. Given the multiplicity of the global responses, the governance of land grabbing becomes a complex system of differing views and ideologies. This article seeks to examine the most prominent regulatory attempts, and despite criticism regarding their prominent nature, this article argues that the progress thus far is commendable, displaying a collaborative success in demanding a strong human-rights-based approach to the issue.

Directors’ standards of conduct under the South African Companies Act and the possible influence of Delaware law

Directors’ standards of conduct under the South African Companies Act and the possible influence of Delaware law

Authors Tshepo H Mongalo

ISSN: 2521-2575
Affiliations: Associate Professor of Law, University of the Witwatersrand, Johannesburg
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 2 Issue 1, 2016, p. 1 – 16

Abstract

Fiduciary duties in Delaware and, indeed, in most states of the United States of America, are less burdensome than they are under the South African Companies Act 71 of 2008. To begin with, Delaware’s fiduciary duties consist of only the duty of loyalty and the duty of care. There is no separate duty of skill and diligence in Delaware, which is home to over 51% of all publicly traded companies in the United States (hereafter referred to as the US). Moreover, a Delaware director does not owe a greater degree of the duty of skill if that director happens to possess a heightened set of skills on the board of a Delaware corporation. The law is different in South Africa as the standard of care, skill and diligence expected of a South African director depends to a large extent on the degree of care and skill such a director possesses. This paper will assess whether the re-iteration of the common law duties and standards of liability of directors under the South African Companies Act 71 of 2008 has had the unintended consequence of making corporate directorship more burdensome and less attractive in South Africa than is the case in leading corporate law states, such as Delaware. South Africa is home to far fewer public companies than Delaware, a state within the US which is considered to be the leading corporate law state there. In fact, the corporation law of Delaware is so influential throughout the US that it has been given the status of being the unofficial national corporate law of that country. With such influence, it is not surprising that most corporate law developments throughout the world are increasingly being benchmarked against Delaware corporate law. South Africa’s recent corporate law reform project, which culminated in the enactment of the Companies Act, 2008, has also used Delaware corporate law as a benchmark in a number of respects. However, the policy makers and the legislature in South Africa deviated from Delaware law and practice in the important area of directors’ standards of conduct and liability, choosing, instead, to continue with the legal position which existed prior to the reform, which position was largely inherited from the English corporate law. In doing so, South Africa appears to have adopted a far stricter and seemingly burdensome regulatory regime over directors, in clear contrast to the Delaware position, which still holds sway in the US as the preferred jurisdiction for incorporation of corporations trading publicly in the US stock markets. South Africa appears to have been influenced by the understandable inclination to steer away from being associated with the jurisdiction that has witnessed some of the colossal and spectacular corporate collapses occasioned by the failure of corporate governance requirements. This paper will investigate the wisdom of the position adopted in South Africa, particularly as the country desperately needs economic growth to reduce, among other things, poverty and inequality.