Suchergebnisse

"This book provides an in-depth analysis of 4 economically significant Asian jurisdictions: Mainland China, India, Hong Kong and Singapore. These jurisdictions have recently either reformed - or are considering reforming - their corporate restructuring laws to promote regimes conducive to restructuring financially distressed, but otherwise economically viable, companies. Mainland China, India, Hong Kong and Singapore continue to adhere to a framework that requires the court's final approval but draw references from Chapter 11 of the Bankruptcy Code 1978 in the United States and/or the schemes of arrangement in the United Kingdom. However, the institutional and market structures are very different in Asia; in particular, Asia has far higher concentration in shareholdings among listed firms, including holdings by families and the state, and different composition of creditors. The book explains how, notwithstanding the legal transplantation, corporate restructuring laws in these Asian jurisdictions have adapted and evolved due to the frictions in shareholder-creditor and the creditor-creditor relationships, and the role of the state in resolving non-performing loans and financial distress of state-owned enterprises which are listed, or which issue public debt. The study argues that any reforms must go beyond professionalising the insolvency professionals and the judiciary but must be designed to address fundamental issues of corporate governance, bank regulation and enforcing non-bankruptcy rules. It offers invaluable insights for academics and policy makers alike."--

In 2015, the Association of South-East Asian Nations (ASEAN) Economic Community was formally established and its aim was to achieve, among other things, an integrated securities market within ASEAN. Before the formal establishment of the ASEAN Economic Community, in 2009, with a view towards achieving the objective of securities integration, Singapore, Malaysia and Thailand adopted the ASEAN Disclosure Standards, a set of harmonized disclosure standards for issuers making cross-border initial public offerings (IPOs). These participating Member States also entered into a framework for the expedited review for cross-listings. However, more than 5 years later, there is no documented use of the ASEAN Disclosure Standards; cross-border IPOs and cross-listings remain rare. This article is a study of cross-border IPOs of issuers in, and cross-listings within, the participating Member States during the 2010–2014 period, with a view to obtaining insights on how issuers access capital markets. These insights are relevant to the broader questions about the long-term viability of ASEAN's regulatory policies of promoting integration through harmonization of minimum standards along with limited mutual recognition. This article compares the ASEAN approach with the EU Prospectus Directive and the Trans-Tasman Mutual Offering Framework. This article argues that to move to a truly pan-ASEAN equity offering, there needs to be, at a minimum, a greater supervisory and enforcement convergence.

If a company incurs substantial fines or other pecuniary losses as a result of its unlawful conduct, can the company obtain an indemnity from its director/officer for having caused the company to incur such fines and losses? In particular, can the director/officer utilise the defence of illegality, notwithstanding that he has breached his duties owed to the company? The illegality defence, which raises the twin issues of the relationship between the unlawful act to the corporate claim and the attribution of the unlawful act to the company, has been the subject of detailed analysis recently in England, Singapore and Hong Kong. This article argues that absent clear legislative intention, there is no reason for English law to bar the claims against the delinquent director/officer, once regard is made to the relevant constituencies of the company. In particular, there is no reason for the illegality defence to operate if the result will prejudice the non-complicit constituencies of the company, such as the creditors where company is insolvent or where the company has innocent participants. Likewise, it argues that in determining the proper scope of the attribution of the acts or knowledge of the delinquent director/officer to the company, regard should also be made to the relevant constituencies of the company. If the result is one that does not lead to the delinquent director/officer benefitting from the corporate claim, there is no reason to attribute the wrongdoing so as to bar the corporate claim.

When a company enters into a transaction or undertakes an action that turns out to be either illegal or otherwise exposes the company to substantial fines or other pecuniary sanctions, the question arises as to whether the company may then recover its fines, expenses and other losses from its directors and employees, in the absence of the relevant legislation specifically providing for, or denying a claim by, the company. In these cases, the board may have made a specific decision to cause the company to enter into the unlawful conduct or may have failed to prevent the improper conduct from undertaken by its employees or officers acting on the company's behalf. This paper assumes that the directors or employees have not acted dishonestly or otherwise breach the no-conflict or no-profit rule. While the board is not likely to sue one of its own members, the action may be brought by a differently constituted board or shareholders pursuant to the statutory derivative action.

This paper analyses the issue of whether directors may use reliance on professional advice as a defence to a claim for breach of duty to exercise care, skill and diligence under common law or companies legislation in England and Australia. While England and Australia share the same common law tradition and have similar statutory provisions on the standard of care of directors, an English court generally regards a director as acting reasonably when he seeks advice from a qualified and independent professional adviser in a specialist matter within his expertise. In the absence of any conflict of interest, reliance is only unreasonable if the circumstances are so plain and obvious that no prudent person will rely on the advice. In contrast, recent Australian cases, particularly ASIC v Healey, ASIC v MacDonald and ASIC v Fortescue, restrict the circumstances in which directors can rely on professional advisers, even in specialist matters. This paper argues that the difference in approach between the two jurisdictions can be explained on two grounds. First, the Australian cases can be distinguished from the English cases because the former are special situations dealing with matters involving non-delegable duties of care imposed by legislation. Second, the potential outcomes of the breach of the duty of care differ in England and Australia, and this difference has a much deeper, substantive influence on the content of the standard of care. Contrary to academic suggestion, it is suggested that the Australian developments may not always be appropriate in determining the scope of the defence of reliance on professional advice in England.

In October 2013, MOF and ACRA sought further public consultation ("Second Consultation") on the second part of the Draft Companies (Amendment) Bill 2013 that covers legislative amendments relating to foreign companies and other aspects of the Companies Act, including those relating to enhancing the powers of the Registrar of Companies to strike off companies and to share buyback limits. This note discusses some of the more controversial, as well as the significant, changes that are proposed in the Second Consultation.