Maryland legislature approves changes to Maryland general corporation law and Maryland Reit Law – 2017

Maryland legislature approves changes to Maryland general corporation law and Maryland Reit Law – 2017

Authors James J. Hanks Jr., Patsy McGowan, Michael Leber

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 3 Issue 1, 2017, p. 90 – 93

Abstract

None

The meaning of ‘binding offer’ in the Kariba case: Did creditors need to be protected from an alien cramdown?

The meaning of ‘binding offer’ in the Kariba case: Did creditors need to be protected from an alien cramdown?

Authors Richard S Bradstreet

ISSN: 2521-2575
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 3 Issue 1, 2017, p. 72 – 89

Abstract

None

Relational companies: Towards responsible capitalism

Relational companies: Towards responsible capitalism

Authors Jonathan Rushworth

ISSN: 2521-2575
Affiliations: Member of the Court of Appeal of England and Wales
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 3 Issue 1, 2017, p. 49 – 106

Abstract

There is growing public dissatisfaction with the short-term, financially driven approach of listed companies, particularly in the United Kingdom. Shareholders demand ever-increasing payments by way of dividends and share buy-backs. As a consequence, directors are not encouraged to invest in companies for the long term and the financial imperative can lead to low wages, with little incentive and encouragement for employees, lack of support of suppliers (who are often paid beyond the contract date), impersonal dealings with customers, and minimal tax payments where profits are earned. Meanwhile remuneration levels of senior employees regularly increase along with growing pay differentials. These practices have led to a loss of trust and confidence by society in the business world. There is little understanding that some of the shareholders who collectively have the ownership interest and voting rights in these companies represent members of the public through managed funds, pensions and other investments. The introduction of limited liability in Victorian times meant that, if the company failed, shareholders would lose the amount of their investment but had no liability for the underlying debts and liabilities of the company itself. The development of share trading and markets meant that over time shares became just another tradable commodity with investors having little interest in the underlying business of a company and its treatment of employees, suppliers and others beyond the requirement for a financial return on their shares. This has led to a significant reduction in investment in research and development, which has been to the detriment of the long-term value of the company. There is an increasing recognition of the value and importance of relationships with all stakeholders in companies, beyond a focus on the financial interests of shareholders. Putting the interests of stakeholders at the heart of company decision making and operations will lead to the company being more sustainable, competitive and successful. One way to encourage the practical application of this is by measuring the extent of the relational ethos of a company against a set of principles set out in a Relational Business Charter. These principles reflect the standard expected of a company with a relational approach in its dealings with shareholders, employees, suppliers, customers, lenders, the local community and wider society. A published index would compare the standard achieved by companies in different business sectors and would encourage companies to embrace an inclusive approach to stakeholder interests. This approach to stakeholder recognition and engagement reflects that taken by the King IV corporate governance code in South Africa, which has developed a stakeholder inclusive approach, as compared to the enlightened shareholder value approach in UK legislation. An analysis of the approach taken on this aspect of corporate governance in South Africa, where it is contained largely in the code, contrasts with that in the United Kingdom, where it is mainly found in company law as part of the duties of directors.

Supervision of the use of corporate power as the ultimate purpose of directorial duties and the advisability of corporate law enforcement in the public interest

Supervision of the use of corporate power as the ultimate purpose of directorial duties and the advisability of corporate law enforcement in the public interest

Authors Tshepo H Mongalo

ISSN: 2521-2575
Affiliations: Senior Law Academic and Head of Law Department at Monash South Africa
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 3 Issue 1, 2017, p. 17 – 48

Abstract

In the aftermath of the devastating global financial crisis in the latter part of the first decade of the 21st century, a question that begs for an answer is whether a different corporate legal enforcement framework aimed at mitigating the effects of aggressive directorial pursuit of profits to satisfy the short-term interests of shareholders would have helped in minimising the effects of the crisis, at least in key Anglo-American jurisdictions. Using lessons from South Africa and Canada, this article questions whether the regulatory responses to the financial and economic crises adequately recognises the threat that reckless management poses to the broadly defined legal interests of corporate entities. The acceptance of the true purpose of directorial duties — the indisputable source of corporate legal interests — may justify a departure from the conventional Anglo-American shareholder-oriented corporate legal enforcement framework, which still limits the right of action to protect the legal interests of companies to shareholders. The preservation of the conventional corporate legal enforcement framework, particularly in jurisdictions that bore the brunt of the global financial crisis (that is, the United Kingdom and the United States), is notwithstanding the institutionalisation of the ‘enlightened shareholder value approach’ (ESVA). The original jurisprudential justifications for the conventional shareholder-oriented corporate legal enforcement framework are no longer justifiable, particularly in the context of public companies, where the argument for the protection of broader interests is more compelling. Since, in that context, the purpose of directorial duties as the exclusive protection of shareholder interests can no longer be sustained, policy makers should accept that the supervision of the use of corporate power to minimise or eradicate the potential for directorial self-serving conduct is the ultimate purpose of such duties. The article concludes that existing corporate law rules already address the potential for floodgates of litigation and the alleged lack of practical means of a broadly inclusive enforcement framework.

Piercing the corporate veil – old metaphor, modern practice?

Piercing the corporate veil – old metaphor, modern practice?

Authors The Rt Hon Lady Justice Arden DBEe

ISSN: 2521-2575
Affiliations: Member of the Court of Appeal of England and Wales
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 3 Issue 1, 2017, p. 1 – 16

Abstract

This article seeks to elucidate the doctrine of piercing the corporate veil. It does so by comparing South African law, where there is a new statutory power for courts to set aside the separate legal personality of the company, and United Kingdom (UK) company law, where the doctrine has been developed over time in case law. The article distinguishes between the ‘minimalist’ approach to the doctrine taken by UK law with the more ‘maximalist’ approach taken by South African law.