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The Parent Subsidiary Relationship and Creditors' Remedies Groups of Companies: The Parent Subsidiary Relationship and Creditors' Remedies Richard Craig Schulte Submitted for the Degree of Doctor of Philosophy The copyright of this thesis rests with the author. No quotation from it should be published witirnut the written consent of the author and information derived from it should be acknowledged. Department of Law University of Durham 1999 2 7 JAN 20110 Richard Craig Schulte Groups of Companies: The Parent Subsidiary Relationship and Creditors' Remedies Doctor of Philosophy 1999 ABSTRACT The modern group of companies is founded on the separate legal personality of companies and the limited liability of shareholders. During the past century, the corporate group has evolved universally and pervasively in parallel with the modernisation of enterprise. A feature of this process is the acknowledgement by the law that a parent may legitimately have complete control of its subsidiaries. Complete control comprises legal control and extra-legal control - that is, control outside the scope of legal control. Both forms of control are susceptible to abuse by the parent of a corporate group, but no legal mechanism focuses on curbing, in particular, the abuse of extra-legal control. A parent is, typically, not accountable to anyone for the misuse of extra-legal control. Neither jurisprudence nor statutory law has kept pace with this reality; each working within the paradigm of the individual, atomistic company. There is a dissonance between commercial reality and legal ordering. This thesis proposes jurisprudential and legislative reform to achieve better accountability of parent companies to creditors for the exercise of extra-legal control over subsidiaries. To determine the direction for reform, the scope of the relationship between parent and subsidiary companies is explored under UK law to identify inadequacies of creditors' remedies in both case law and legislation. This will demonstrate that company law jurisprudence is plagued by metaphors and burdened with an absolutist conception of corporate personality that needs to be revisited and recrafted with the complexity of corporate groups in mind. This thesis proposes a reversion of jurisprudential processes to a 'first principles' analysis that focuses on conceiving the company as a collection of rules. Each rule needful of testing for legitimacy in the context of its application. The methodology the law should draw on derives from the existing templates of the doctrine of the sham and principles that facilitate a purposive analysis of a cluster of transactions such as those found in tax law. This thesis demonstrates that whilst the legislative response to parental abuse of a subsidiary to the detriment of creditors through extra- legal control is wanting; reform need not be revolutionary to be effective. An examination of a number of other jurisdictions demonstrates that reform measures directed at regulating abuse of extra-legal control can successfully retain separate personality and limited liability, but need not involve liability regimes based on the group as an economic unit. 3 Acknowledgements and Dedication I am grateful to Sheila Jobling and Joanne Gillespie from the Law Department and Alisoun Roberts from the Palace Green Library for their assistance with administrative and library matters. I would like to thank Professor John Farrar for first sparking my interest in groups of companies. I also thank Ross Grantham for providing elucidations on the law in New Zealand. I am very grateful to my supervisor Professor G R (Bob) Sullivan. Professor Sullivan has a deep sense of scholarship and the academic tradition - Per ardua ad asira! His door was always open and our supervisions always engaging. Finally, I thank my dear wife, Katherine. A doctorate is a long hard road. Without Katherine's love, support, determination, sacrifice and patience this work would not have been completed. My friend Shane Anthony Myler has haunted me since his death on 14 September 1994. Carpe diem. I dedicate this work to his memory. 4 Table of Contents ACKNOWLEDGEMENTS AND DEDICATION .3 TABLEOF CONTENTS ..............................................................................................4 TABLEOF CASES ......................................................................................................9 TABLEOF LEGISLATION.......................................................................................18 TABLEOF FIGURES ................................................................................................21 DECLARATION........................................................................................................22 STATEMENTOF COPYRIGHT................................................................................23 iNTRODUCTION.......................................................................................................24 ThesisArguments..............................................................................................29 Modesof Reform............................................................................................29 JurisprudentialReform................................................................................30 LegislativeReform......................................................................................33 FactorsInfluencing Reform.........................................................................34 LimitedLiability and Separate Personality...............................................34 Intergroup Indebtedness and the Problem of Pan Passu........................... 37 WhichDirection2 ...........................................................................................39 ACautionary Note.............................................................................................42 Summaryof Contents ........................................................................................45 PART I: GROUPS OF COMPANIES AND CREDITORS: THE REALITY AND THE LAW...........................................................................................................................51 CHAPTER1 ...............................................................................................................52 Creditors, Salomon, the Group of Companies and the Parent Subsidiary Relationship ......................................................................................................... 52 Introduction.......................................................................................................52 Salomon.............................................................................................................57 The Relationship between Limited Liability and Separate Personality............59 TheSeparation of Roles..................................................................................60 Salomon and The Parent Subsidiary Relationship ..............................................63 Table of Contents 5 TheNotion of Economic Unity..........................................................................64 LordDenning - The Radical View..................................................................65 Legal Recognition of Economic Unity - A Reflection of Commercial Reality 69 Admissionof Economic Unity ....................................................................69 Agreement...................................................................................................71 Statute.........................................................................................................71 The'Eye of Equity'.....................................................................................75 Comments......................................................................................................77 The Rise of Creditors Interests - Rejecting Economic Unity and Restating Salornon............................................................................................................. 77 EconomicUnity Where Justice So Demands7 .............................................83 Presence of a Subsidiary Exposes Parent to the Jurisdiction7.......................84 FurtherRejection of Economic Unity..........................................................86 ACriticism of Adams........................................................................................ 88 SimpleLaw - Complex Groups.........................................................................91 Comments.........................................................................................................92 TheRoles of a Parent.........................................................................................95 Parentas a Shareholder...................................................................................96 Parentas a Controller: The Prerogatives of Ownership...................................99 Parental 'Influence' or 'Interference' in the Management of a Subsidiary . 102 Interferenceand Its Relationship with Tort................................................ 109 Legitimacy of Control in the Parent Subsidiary Relationship.....................111 Parentas a Creditor ......................................................................................113 Comments.......................................................................................................116 PART II: THE GENERAL LAW AND THE JUDICIAL LIMITS OF SALOMON.. 120 Ca&PTER2 .............................................................................................................121
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