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2 BCLC 646; [1998] 2 All ER
Secretary of State for Trade and Industry v Griffiths [1998] 2 BCLC 646; [1998] 2 All ER 124 (CA) 305 Secretary of State for Trade and Industry v Jonkler [2006] EWHC 135; [2006] 2 BCLC 239 307 Secretary of State for Trade and Industry v Reynard [2002] EWCA Civ 497; [2002] 2 BCLC 625 307 Secretary of State for Trade and Industry v Swan [2005] EWHC 603; [2005] BCC 596 (Ch) [6.09], 299 Secretary of State for Trade and Industry v Swan (No 2) [2005] EWHC 2479 (Ch) [6.11], 295, 302 Secretary of State for Trade and Industry v Tjolle [1998] 1 BCLC 333 314 Sedgefield Steeplechase Co (1927) Ltd, Re [2001] BCC 889 (CA) 498 (p. liv) Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555 (Ch) [10.11], 318, 540, 541, 549 Senex Holdings Ltd (in Liquidation) v National Westminster Bank plc [2012] EWHC 131 (Comm) 327 Sevenoaks Stationers (Retail) Ltd, Re [1991] Ch 164 (CA) [6.08], 294, 295, 296, 299, 300, 301 Shah v Shah [2010] EWCA Civ 1408 585, 687 Shahar v Tsitsekkos [2004] EWHC 2659; [2004] All ER (D) 283 (Nov) 212 Shamji v Johnson Matthey Bankers Ltd [1986] BCLC 278 (Ch), affd [1991] BCLC 36 (CA) 786 Sharp v Dawes (1876) 2 QBD 26 (CA) [4.10], 194, 204 Sheffield Corpn v Barclay [1905] AC 392 (HL) 580 Shepherds Investments Ltd v Walters [2006] EWHC 836; [2007] 2 BCLC 202 (Ch) [7.30], 349, 389, 392, 394 Shierson v VlielandBoddy [2005] EWCA Civ 974, [2005] BCC 949 16 Shindler v Northern Raincoat Co Ltd [1960] 1 WLR 1038 291 Short v Treasury Comrs [1948] AC 534 593 Shropshire Union Railways and Canal Co v R (1875) LR 7 HL 496 (HL) [11.15], -
3 Lifting the Veil
3 Lifting the veil SUMMARY Introduction Statutory examples Veil lifting by the courts Classical veil lifting, 1897–1966 The interventionist years, 1966–1989 Back to basics, 1989–present Tortious liability Parent company personal injury tortious liability Commercial tort The costs/bene? ts of limited liability Introduction 3.1 You may not unnaturally wonder at this point what the phrase ‘lifting the veil’ is about. It refers to the situations where the judiciary or the legislature have decided that the separation of the personality of the company and the members is not to be maintained. 7 e veil of incorporation is thus said to be lifted. 7 e judiciary in particular seem to love using unhelpful metaphors to describe this process. In the course of reading cases in this area you will fi nd the process variously described as ‘lifting’, ‘peeping’, ‘penetrating’, ‘piercing’ or ‘parting’ the veil of incorporation. In a nutshell, having spent the whole of the last chapter emphasising the separateness of corporate personality, we now turn to those situations where for various reasons that separateness is not maintained. BBookook 77a.indba.indb 3311 88/14/2008/14/2008 99:08:31:08:31 PPMM 32 | Lifting the veil 3.2 While some of the examples of veil lifting involve straightforward shareholder lim- itation of liability issues many of the examples involve corporate group structures. As businesses became more adept at using the corporate form, group structures began to emerge. For example Z Ltd (the parent or holding company) owns all the issued share capital in three other companies—A Ltd, B Ltd and C Ltd. -
Limited Liability: a Pathway for Corporate Recklessness?
LIMITED LIABILITY: A PATHWAY FOR CORPORATE RECKLESSNESS? Igho Lordson Dabor PhD SEPTEMBER 2016 LIMITED LIABILITY: A PATHWAY FOR CORPORATE RECKLESSNESS? By Igho Lordson Dabor A thesis submitted in partial fulfilment of the requirement of the University of Wolverhampton for the degree of Doctor of Philosophy September, 2016 Faculty of Social Sciences University of Wolverhampton Law School This work or any part therefore has not previously been presented in any form to the University or any other body whether for the purposes of assessment, publication or for any other purposes (unless otherwise indicated). Save for any express acknowledgements, references and/or bibliographies cited in the work, I confirm that the intellectual content of this work is the result of my own efforts and of no other person. The right of Igho Lordson Dabor to be identified as author of this work is asserted in accordance with ss.77 and 78 of the Copyright, Design and Patents Act 1988. At this date, the author owns copyright. Signature: …………………………………………… Igho Lordson Dabor Date: …………………………………………………. Dedication DEDICATION I dedicate this work first of all to the Almighty God, creator of heaven and earth, who has been my rock, my strength, and my salvation and to my lovely wife Mrs Adefolawe Yetunde Dabor and our lovely and wonderful children Joshua Omoyode Dabor, and Esther Avwerosuoghene Dabor. Dedication i Acknowledgement ACKNOWLEDGEMENT I extend my gratitude to the almighty God who gave me the grace, and ability to complete this work. I also extend my gratitude to all in the University Of Wolverhampton Law School who provided a fantastic environment in which to work and learn. -
IS VEIL PIERCING REALLY the MESS THAT COMMENTATORS THINK IT IS? Ioanna Mesimeri Advocate 1. INTRODUCTION in Appropriate Cases
IS VEIL PIERCING REALLY THE MESS THAT COMMENTATORS THINK IT IS? Ioanna Mesimeri Advocate 1. INTRODUCTION In appropriate cases, the judiciary or the legislature have decided to disregard the principle of corporate personality in order to ‘look behind the corporate person to its real controllers’1 and so to reallocate liability among shareholders and corporations2. This situation is commonly known as ‘piercing’ or ‘lifting’ the corporate veil and it occurs in an attempt of the courts to focus on the reality of the company instead of its structural form3. The doctrine of veil piercing ‘has been generally assumed to exist in all common law jurisdictions’4 but without a well-articulated basis. The courts, though, instead of producing comprehensive doctrines as to when the veil should be lifted, they have tended to use some unhelpful metaphors when describing the process of the doctrine5. Particularly, they stated that the corporate veil will be lifted when the company is ‘a mere cloak or sham’6, ‘a mere device’7, ‘a mere channel’8, ‘a mask’9, or ‘a façade concealing the real facts’10. Thus, the absence of a certain principle to veil piercing, ‘has been the subject of intense scrutiny by both judges and scholars’ as it has provoked many issues that need to be examined at theoretical, doctrinal and empirical levels11. In this regard, the very recent decision of the Supreme Court in Prest v Petrodel Resources Ltd [2013]12 has introduced a new approach at the concept of veil. However, it is debated whether Prest represents ‘a fresh start to this sometimes vexed area of corporate law’13 or if it enhances even more the controversy and complexity of the veil piercing approach. -
Doi: 10.14324/111.2052-1871.079 60 the Legal Measures Against the Abuse of Separate Corporate Personality and Limited Liability
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UCL Discovery DOI: 10.14324/111.2052-1871.079 THE LEGAL MEASURES AGAINST THE ABUSE OF SEPARATE CORPORATE PERSONALITY AND LIMITED LIABILITY BY CORPORATE GROUPS: THE SCOPE OF CHANDLER v CAPE PLC AND THOMPSON v RENWICK GROUP PLC Daisuke Ikuta∗ Abstract: While the scope of ‘veil lifting’ has been severely restricted in UK case law, two recent notable judgments, Chandler v Cape Plc and Thompson v Renwick Group Plc, have held that a parent company could owe tortious liability for the health and safety of its subsidiary’s employees. This article contends that the legal principle recognised in Chandler and Thompson could successfully prevent corporate group abuses of separate corporate personality and limited liability, when combined with ‘veil lifting’ and protection against misrepresentation in UK law. With reference to the theoretical justification of limited liability, there are three circumstances in which limited liability should not apply: ex ante opportunism, ex post opportunism and in relation to involuntary creditors. Most cases in the former two categories can be dealt with by applying existing UK legislation and case law concerning misrepresentation and ‘veil piercing’. The final category can be dealt with by Chandler’s direct tortious liability regime if it is appropriately refined. This paper proposes an integrated understanding of Caparo’s three requirements for establishing a duty of care, namely foreseeability, proximity and fairness, and four-group categorisation, namely reliance on superior knowledge, confusing representation, business integration and fairness for other reasons, in which the parent’s direct tortious liability should be recognised. -
December 2013
Index January – December 2013 CONTENTS Subject Index 2 UK Statutes 26 Statutory Instruments 28 International Legislation 29 Law Reports 32 Table of Cases 34 Author Index 52 Book and Online Reviews 56 Glossary 56 2 SUBJECT INDEX www.newlawjournal.co.uk | January – December Index 2013 | New Law Journal Numbers in bold refer to issue use of ADR to resolve landlord and how courts deal with question of costs numbers, followed by page numbers tenant disputes (ADR) 7573:21 where an arbitration award is being CAS refers to the who pays the mediator (judicial line) 7557:19 challenged 7554:14–15 Charities Appeals Supplement America jurisdiction of High Court under American Bar Association and external Arbitration Act 1969 (law digest) 7565:29 ownership of law firms (comment) 7588:8 local court is free to impose its own A American Bar Association to permit procedural conditions (law digest) 7583:17 foreign lawyers to practise as in- negative aspect of a London arbitration abuse of process house counsel 7549:182 (law digest) 7565:29 former wife’s claim was abuse of process 7560:4 animals points needed to succeed under s.68 access to justice dangerous dogs and destruction orders Arbitration Act 1996 (law digest) 7581:29 access to justice debate (comment) 7543:7 (law digest) 7588:21 seat of arbitration sufficiently indicated age anti-social behaviour by the country chosen as the place former partner in law firm loses age proposals in new legislation to of arbitration (law digest) 7550:237 discrimination claim 7563:4 introduce statutory injunctions -
Corporate Structures, the Veil and the Role of the Courts
CRITIQUE AND COMMENT CORPORATE STRUCTURES, THE VEIL AND THE ROLE OF THE COURTS T HE HON CHIEF JUSTICE M ARILYN WARREN AC* The topic of the corporate veil is one that has been long-discussed, but which remains the subject of considerable debate and uncertainty. This lecture will look at a few areas related to veil-piercing or lifting, used in a broad sense, which usefully highlight the tensions the courts have to grapple with when faced with corporate structures and the question of whether to look behind those structures to commercial realities. The topics canvassed are directors’ liability for corporate fault, limited liability and corporate groups, and direct liability of parent entities in tort. C ONTENTS I Preface: Professor Ford ............................................................................................ 658 II Introduction .............................................................................................................. 659 III Directors’ Liability.................................................................................................... 661 IV Limited Liability and Corporate Groups .............................................................. 668 V Direct Liability of Parent Entities .......................................................................... 673 A Chandler v Cape ........................................................................................... 674 B The Australian Cases ................................................................................... 677 C Canada -
645KB***Revisiting the Alter Ego Exception in Corporate Veil Piercing
(2015) 27 SAcLJ Alter Ego Exception in Corporate Veil Piercing 177 REVISITING THE ALTER EGO EXCEPTION IN CORPORATE VEIL PIERCING The seminal decision of the UK Supreme Court in Prest v Petrodel Resources Ltd [2013] 3 WLR 1 (“Prest”) has clarified the law on corporate veil piercing by (a) jettisoning vague phrases such as “justice of the case” and metaphors such as “sham” or “façade” that had hitherto characterised English jurisprudence in this area; and (b) re-categorising earlier English cases under two underlying principles – the concealment principle and the evasion principle. In the aftermath of Prest, the question that ought to be raised in Singapore is whether the local jurisprudence on corporate veil piercing should likewise be re-examined since the earlier Singapore cases have also relied heavily on metaphors and platitudinous phrases; in particular, there is a need to confront the problem of apparently inconsistent judicial statements that seem to categorise the alter ego doctrine as a separate ground for corporate veil piercing. To the extent that this is so, the post-Prest English position and the Singapore position as set out in the decision of the Court of Appeal in Alwie Handoyo v Tjong Very Sumito [2013] 4 SLR 308 (which did not have the opportunity to consider the decision in Prest) appear to be divergent. This article discusses four alternative ways that this perceived inconsistency may be resolved. Moving forward, it is suggested that metaphors such as “sham” or “façade” be eschewed and the principled approach espoused in Prest be adopted instead. YEO Hwee Ying* LLB (Singapore), LLM (London); Associate Professor, Faculty of Law, National University of Singapore. -
Piercing the Corporate Veil: an Analysis of Lord Sumption's Attempt to Avail a Troubled Doctrine
114 Auckland University Law Review Vol 21 (2015) Piercing the Corporate Veil: An Analysis of Lord Sumption's Attempt to Avail a Troubled Doctrine NUPUR UPADHYAY* The principle that a company is a separate legal person is fundamental to modern company law. Over time, case law has emerged supporting the doctrine of "piercing the corporateveil ", enabling courts to look behind a company's separate legal personality to impose the company's liabilities on its controllers or vice versa. The doctrine, however, has been applied inconsistently and incoherently. In 2013, the Supreme Court of the United Kingdom in Prest v Petrodel Resources Ltd confirmed the existence of the doctrine and attempted to clarify it. In doing so, the leading judgment of Lord Sumption proposeda novel formulation to determine the circumstances in which a court can pierce the corporate veil. Lord Sumption's formulation creates its own confusion and uncertainty. This article argues that the Supreme Court should have abandoned the doctrine altogether. Alternative legal remedies available to claimants render the doctrine redundant. Moreover, Prest exacerbates the doctrine's lack of clarity. This, in turn, compromises the certainty afforded to commercial actors by virtue of incorporatinga company. I INTRODUCTION The limited liability corporation is the greatest single discovery of modern times... Even steam and electricity are far less important than the limited liability corporation. The strength of the limited liability company lies in the fact that commercial actors can be certain that, if a dispute arises, the company's separate legal personality will be recognised. The House of Lords articulated this principle in the seminal case of Salomon v A Salomon and Co Ltd.2 In New Zealand, the principle has been codified in s 15 of the Companies Act 1993. -
Tort Litigation Against Transnational Corporations in the English Courts: the Challenge of Jurisdiction Ekaterina Aristova*
This article is published in a peer-reviewed section of the Utrecht Law Review Tort Litigation against Transnational Corporations in the English Courts: The Challenge of Jurisdiction Ekaterina Aristova* 1. Introduction Recent decades have seen an explosion of interest in the social, economic and environmental risks caused by the cross-border operations of transnational corporations (‘TNCs’). These powerful corporate groups have often been involved in various forms of corporate wrongdoing in many parts of the world.1 Severe abuses, reported by various non-governmental organisations (‘NGOs’), range from murder to the violation of socio- economic rights.2 As a response to inadequate legal remedies for the victims of corporate abuses in host states3 and an absence of international binding instruments on corporate accountability,4 few jurisdictions have shown a growing trend of civil liability cases against TNCs (‘Tort Liability Claims’).5 These cases are examples of private negligence claims brought by the victims of overseas corporate wrongs against parent companies before the courts of the home states. This paper will address the potential of Tort Liability Claims to close a regulatory gap in international corporate accountability. It is divided into three parts. Part 1 will provide a general analysis of Tort Liability Claims through a description of the facts of the most significant UK cases and an identification of their common features. The second part will then examine recent developments in the establishment of the personal jurisdiction of the English courts over the corporations involved in the overseas abuses. Finally, the concluding part will critically assess the overall impact of the increasing trend of litigating against TNCs in their home states. -
John Lowry and Arad Reisberg Pettet’S Company Law: Company Law & Corporate Finance FOURTH EDITION
LONGMAN LAW SERIES John Lowry and Arad Reisberg Pettet’s Company Law: Company Law & Corporate Finance FOURTH EDITION “John Lowry and Arad Reisberg rise more than admirably to the task of assimilating, explaining and analysing this vast corpus of legal material. The text is pellucidly clear, analytically précis, judicious in its balance in dealing with the various topics, comprehensive, and always cognisant of the policy issues.” Professor Dan Prentice, Oxford, UCL and Erskine Chambers Pettet’s Company Law LONGMAN LAW SERIES Providing you with the best possible basis for your legal study. ISBN: 9781408279281 ISBN: 9781408255520 ISBN: 9781408295731 ISBN: 9781408279328 ISBN: 9781408280799 ISBN: 9781408272831 Longman Law Series titles come with Your Complete Learning Package All Longman Law Series titles are available to order from all good bookshops or online at: www.pearsoned.co.uk/law Pettet’s Company Law Company Law and Corporate Finance Fourth Edition John Lowry Arad Reisberg Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at : www.pearson.com/uk First published 2001 Second edition published 2005 Third edition published 2009 Fourth edition published 2012 © Pearson Education Limited 2001, 2012 The rights of John Lowry and Arad Reisberg to be identified as authors of this Work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without either the prior written permission of the publisher or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS. -
Judging Corporate Law II May 31St 2013 University of Pennsylvania
Judging Corporate Law II May 31st 2013 University of Pennsylvania Law School Organized and moderated by John Armour (Oxford) and Edward Rock (Penn Law) 9.00 am Registration and Coffee 9.30 am Welcome PROFESSOR MICHAEL A. FITTS Dean and Bernard G. Segal Professor of Law, University of Pennsylvania Law School 9.45am Capital Structure I: Legal Capital: What are the constraints on redemption of redeemable shares? How are these constraints imposed, and to what extent may parties modify them by contract? How are questions of valuation of corporate assets approached for the purposes of applicability of these constraints? Barclays Bank plc v British & Commonwealth Holdings plc [1996] 1 BCLC 1 SV Investment Partners LLC v Thoughtworks Inc, (Del. 2011) CHIEF JUSTICE STEELE MR JUSTICE HILDYARD Delaware Supreme Court High Court, Chancery Division 10.45am Capital Structure II: Exchange Offers: What degree of coercion, if any, is it permissible to introduce into an exchange offer to bondholders, in order to overcome hold-out objections? How do/should courts review such offers? Katz v Oak Industries, Inc, 508 A.2d 873 (Del. Ch. 1986) Asseìnagon Asset Management SA v Irish Bank Resolution Corp [2012] EWHC 2090 (Ch), [2013] 1 All ER 495 MR JUSTICE BRIGGS CHANCELLOR STRINE High Court, Chancery Division Delaware Court of Chancery 11.45pm Coffee 12.00pm Piercing the Corporate Veil: What is understood by “piercing the corporate veil”? Is there a judicial power to do this in appropriate circumstances? If so, what do such circumstances look like? Midland Interiors Inc v Burleigh 2006 WL 3783476 (Del. Ch.