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Derivative Actions and Corporate Governance [Hardback]

(, Lecturer in Laws, Faculty of Laws, University College London and Director, UCL Centre for Commercial Law)
  • Formāts: Hardback, 368 pages, height x width x depth: 242x163x25 mm, weight: 687 g
  • Izdošanas datums: 13-Dec-2007
  • Izdevniecība: Oxford University Press
  • ISBN-10: 0199204896
  • ISBN-13: 9780199204892
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Derivative Actions and Corporate GovernancePalielināt
  • Formāts: Hardback, 368 pages, height x width x depth: 242x163x25 mm, weight: 687 g
  • Izdošanas datums: 13-Dec-2007
  • Izdevniecība: Oxford University Press
  • ISBN-10: 0199204896
  • ISBN-13: 9780199204892
Citas grāmatas par šo tēmu:
Permanent link: https://www.kriso.lv/db/9780199204892.html
Keywords:
This volume examines the circumstances in which a shareholder can bring an action on behalf of a company (a derivative action), exploring how this remedy may be used to ensure good corporate governance, and laying out a theoretical framework and practical guidance for future development of the law.

Derivative actions are an important aspect of the continuing debate about corporate governance in the UK, the US and many other jurisdictions worldwide. This book offers a conceptually inclusive approach to thinking about derivative actions by providing a detailed and clear overview, commentary, and a theoretical explanation of the law governing derivative actions in the corporate governance context. Reisberg provides a fundamental reassessment of the nature and objectives of the derivative action, and conceptualizes a new model of the derivative action mechanism. He argues that action should be taken in three areas:

(1) conceptual (adoption of a new framework- the 'Functional and Focused Model' set out in the book)

(2) strategic (employment of appropriate incentives and fee rules which advance the premises behind the Model)

(3) maintaining doctrinal consistency (clarification of the interaction between the derivative action and other remedies available to shareholders)

This book offers practical guidance on solving current problems in many jurisdictions based on case law, and on substantive legal, economic, and comparative research. It also provides a comprehensive and detailed analysis and commentary on the regime governing derivative actions under Part 11 of the Companies Act 2006 in the UK.

Recenzijas

An exhaustive and penetrating analysis of the law relating to derivative actions. No stone has been left unturned...Dr Reisberg has, on many occasions in this book, sought to push the boundaries of that knowledge in his all-embracing approach...mandatory reading for all company lawyers. * Professor Stephen Girvin, 19 (2008) International Company and Commercial Law Review, p.308 * Dr Reisberg's highly scholarly text...provides a well thought-out analysis on derivative claims. The book provides excellent insights on when they are justifiable in the context of the current provisions in the Companies Act 2006...the conceptual framework presented in this book would definitely be of a tremendous help for those who need to engage in the topic for various reasons...he formulated a theoretical framework and operational guidance for future development of the law. * Peter Yeoh, Business Law Review * Dr Reisberg's study is...a timely and important contribution to the scholarship on this new statutory remedy, one of company law's "most thorny aspects" (p.1), which he sees principally as a mechanism of corporate accountability (p.5)...As one has come to expect with any book appearing under the imprint of Oxford University Press, Dr Reisberg's book has been produced and edited to the highest academic and publishing standards * Professor Stephen Girvin, University of Birmingham, ICCLR 2008 19(9) *

Table of Cases
xxi
Table of Legislation
xxv
List of Tables
xxix
Glossary of Terms xxxi
A Bird's Eye View of the Functional and Focused Model (FFM) xxxiii
Introduction 1(1)
Background
1(1)
The Primary Objectives of the Book
2(3)
The Derivative Action: A Unique Procedure?
5(2)
Public and Private Companies
7(2)
The New Proposed Framework Advanced by the Book
9(2)
An Overview of the Book
11(6)
I Theory and Practice Analysis
Shareholder Litigation and Corporate Governance
17(29)
Introduction
17(1)
Shareholder Litigation and Corporate Governance
18(6)
Limitations of traditional view
18(2)
Derivative actions and agency costs
20(4)
Alternative Devices to Control Agency Costs
24(12)
Internal mechanisms
24(1)
The right to vote
25(3)
The company's internal dispute-resolution machinery
28(3)
External mechanisms for reducing agency costs
31(1)
Public enforcement
31(1)
Non-executive directors
32(4)
Derivative Actions versus Market Forces
36(8)
The market in corporate control---an effective functional substitute for litigation?
37(4)
Flaws in the operation of the market for corporate Control
41(3)
Conclusion
44(2)
The Choice of Rationales and the Social Meaning of Derivative Actions
46(30)
Introduction
46(1)
Merits and Demerits of Derivative Actions
47(7)
The Choice of Rationales: Deterrence versus Compensation
54(12)
The primary purposes of derivative actions in the US
54(2)
Compensation
56(1)
The rationale and decision rule
56(1)
Limitations
56(3)
Deterrence
59(1)
The rationale and decision rule
59(3)
Limitations
62(2)
How does deterrence operate?
64(2)
Understanding the Social Meaning of Derivative Actions
66(8)
Introduction
66(1)
Construction and deconstruction
67(1)
Ambiguity of the action's objective
68(3)
Tying derivative actions to a failed objective
71(1)
Applying the right inhibitions
72(1)
Procedural requirements and settlements
73(1)
Conclusion
74(2)
The Difficulties with Conferring Rights on Shareholders to Litigate
76(49)
Introduction
76(1)
The Nature of the Problem with Conferring Rights on Shareholders to Litigate
77(11)
Introduction
77(3)
The policy problem: can a shareholder adequately represent the company?
80(4)
Perverse incentives
84(1)
Access to information
85(2)
Expertise
87(1)
Shareholders long-term commitment to a policy of suit
87(1)
Costs
88(1)
The Common Law Response
88(15)
The `majority rule' and `proper plaintiff' principles
88(2)
Fraud on the minority
90(1)
Fraud and wrongdoer control
90(1)
Fraud
90(2)
Wrongdoer control
92(2)
When fraud and control must be shown
94(1)
Ultra vires transactions
94(3)
Breaches of special resolution procedures
97(2)
The `interests of justice'?
99(1)
Additional restrictions on members' ability to bring actions on behalf of the company
100(1)
`Independent organ' does not wish the action to proceed
100(1)
Ratification
100(1)
Inequitable conduct of the minority shareholder
101(1)
Availability of other adequate remedies
101(1)
Companies in liquidation
102(1)
Conclusion
102(1)
Policy Evaluation: Old Myths and New Realities
103(18)
Policy response number one: reallocating the responsibility to determine the merits of the action
103(1)
Committee of independent directors
104(3)
Independent organ
107(1)
Conceptual problems
108(1)
Policy issues
109(1)
Judicial oversight
109(2)
Policy response number two: formulating proper screening mechanism
111(1)
Current screening mechanisms
111(1)
Issues relevant to the grant of leave
112(2)
Rationales
114(1)
Applicant's good faith
115(2)
Interests of the company
117(4)
Conclusion
121(4)
II Making Derivative Actions Work
The Way to Reform and a New Statutory Derivative Action: Much Ado About Nothing?
125(42)
Introduction
125(1)
Deficiencies in the Present Law and the Approach to Reform
126(6)
Introduction
126(1)
Problems in the common law derivative action
126(1)
Guiding principles for resolving the problems identified
127(2)
The Law Commission's recommendations
129(2)
The Company Law Review Steering Group
131(1)
The Derivative Action Under the Companies Act 2006
132(27)
Introduction
132(2)
General principles
134(1)
Scope of application
135(1)
The three key elements
135(1)
Extending the types of breaches under which a derivative claim may be brought
135(3)
Derivative claims against third parties
138(1)
Can the applicant bring a derivative claim in respect of wrongs committed prior to his becoming a member?
139(3)
Derivative claims against a former director and a shadow director
142(1)
Procedural requirements
143(1)
General principles
143(1)
Permission to continue claim as a derivative claim
144(1)
An assessment
145(1)
Criteria for the grant of leave
146(1)
Background
146(2)
The new framework
148(2)
The specific criteria
150(5)
Matters that the court must take into account when considering an application for permission to proceed with a derivative claim
155(3)
What is not there?
158(1)
An assessment of the likely impact of the new regime
159(6)
Conclusion
165(2)
A Proposed Model for Derivative Actions: the Functional and Focused Model (FFM)
167(1)
A. The Foundations
167(30)
Introduction
167(1)
The Role of Derivative Actions in a Changing Menu of Governance
168(10)
Introduction
168(2)
Enhanced protection of minority shareholders
170(3)
Historical perspective
173(2)
Policy shift
175(3)
The Derivative Action as a Constraint on Management Misconduct
178(5)
Public companies---constraints and limitations of other mechanisms
178(5)
Policing management in closely held corporations
183(1)
Synthesis---the Functional and Focused Model
183(14)
Introduction
183(1)
Aims of the model
183(1)
Outline of the model
184(1)
Policy premises
185(2)
The value of deterrence against corporate misconduct
187(1)
Introduction
187(1)
The deterrence rationale in company law
187(2)
`Private' remedies or `non legally enforceable norms'
189(2)
Infrequcncy of proceedings
191(2)
A note on insurance and indemnity
193(2)
Enhancing the social meaning of the derivative action
195(1)
Reorienting the judiciary's focus---confirming the public nature of derivative actions
195(2)
Providing adequate incentives to shareholders
197(1)
Procedural and Substantive Aspects
197(110)
Introduction
197(1)
Nature of cases arising under the derivative action
198(1)
Type of conduct
198(4)
Multiple derivative actions
202(1)
Types of companies
203(1)
Who may be qualified to bring a derivative action?
204(2)
Formulating an expeditious screening mechanism
206(1)
The proposed rule: identifying those actions that appear likely to increase corporate value
206(1)
How will the inquiry operate?
207(4)
What should be the relationship between the compensation and deterrence rationales?
211(1)
An illustration of the proposed inquiry
212(1)
An assessment of the benefits of the proposed inquiry
212(3)
Shareholder standing
215(1)
Access to information
216(3)
Notice to the company
219(1)
Funding derivative actions: a re-examination of costs and fees as incentives to commence litigation
220(1)
Maintaining doctrinal consistency
220(1)
Conclusion
221(1)
Funding Derivative Actions: Costs and Fees as Incentives to Commence Litigation
222(22)
Introduction
222(1)
The Economics of Derivative Action Litigation
223(6)
Introduction
223(3)
The US rules on derivative action fees
226(2)
The risk of litigation is shifted from the claimant to the attorney
228(1)
Re-examination of Indemnity Costs Orders
229(13)
Introduction
229(1)
The common law recognition of the problems of the impecunious shareholder
229(3)
Fundamental flaws in the operation of indemnity costs orders
232(1)
Lack of incentives
232(2)
The problematic interrelationship between the application for an indemnity and the application for leave to proceed
234(1)
Procedure may result in a costly minitrial to establish entitlement
234(2)
The relationship between the indemnity procedure and the exceptions to the rule in Foss v Harbottle and its effect on the economics of litigation
236(1)
The court may more readily be persuaded against making an indemnity order
237(1)
Danger of under-settling the action
237(1)
The problematic `financial need test'
238(2)
On what basis are indemnity costs orders awarded?
240(1)
The shareholder may not be compensated if the company becomes insolvent
241(1)
Conclusion
242(2)
Pursuing the Resolution of the Funding Problem
244(30)
Introduction
244(1)
Menu of Options: Solutions Involving the Company and the Shareholder
244(8)
Option One: a mandatory requirement for the company to pay the costs of the action
244(2)
Option Two: rewarding the claimant with part of the proceeds of litigation
246(1)
Outline of proposal
246(2)
Rationale explained
248(2)
Rewarding the claimant and the `reflective loss' rule
250(2)
Solutions Involving the Claimant's Attorney
252(5)
Option Three: conditional fee agreements
252(1)
How do conditional fee agreements work?
252(1)
Conditional fee agreements and derivative actions
253(4)
Introducing Contingency Fees for Derivative Actions?
257(15)
Introduction
257(1)
Argument One: a change in the climate
258(1)
Argument Two: contingency fees versus conditional fees
259(1)
The case for simplicity
259(1)
Settling the case too low?
259(1)
Charging excessive fees?
260(1)
Increasing the costs?
261(1)
Argument Three: the myth about contingency fees and ethics
261(1)
Argument Four: the experience with contingent fees in US derivative action litigation
262(2)
Argument Five: contingent fees are more compatible with derivative action
264(2)
Argument Six: comparative perspective
266(1)
The difficulties in introducing contingency fees into a system in which costs follow the event
267(1)
The first objection
267(1)
The second objection
267(1)
The third objection
268(1)
Formulating proper safeguards
269(1)
Regulation and methods to calculate fees
269(1)
Approval of the court
270(1)
Is there a need to reform attorneys' professional ethics?
271(1)
Final adjustments
271(1)
Conclusion
272(2)
The Interrelationship between the Derivative Action and the Unfair Prejudice Remedy
274(25)
Introduction
274(2)
The Interaction between the Unfair Prejudice Remedy and the Derivative Action
276(4)
Introduction
276(2)
Towards amalgamation of the two remedies?
278(2)
The Case for Retaining Two Separate Remedies
280(14)
Leaving a gap in the enforcement mechanisms of corporate governance
280(3)
The unfair prejudice remedy and breaches of fiduciary duties
283(1)
The Law Commission's arguments
284(4)
The question of relief
288(1)
The `alternative remedy' argument revisited
288(2)
Both remedies can operate together to ensure added value for the aggrieved shareholder and the company
290(1)
Comparative perspective
291(3)
The Way Forward---Practical Steps
294(4)
Redressing the balance---the case for duality
294(1)
A new test for obtaining costs orders
295(3)
Conclusion
298(1)
Conclusion and Future Directions
299(8)
The Approach of the Book
299(1)
The Proposed New Framework
300(2)
Beyond This Book: Future Directions
302(5)
Appendix
1. Companies Act 2006, Pt 11, Chap 1		 307(3)
Appendix
2. The Civil Procedure (Amendment) Rules 2007 S12204/2007 (extracts only)		 310(4)
Selected Bibliography 314(17)
Index 331


Dr. Arad Reisberg, D.Phil (Oxon), Advocate, is currently the Director of the Centre for Commercial Law and a Lecturer at the Faculty of Laws, University College London. He is a contributing author to Annotated Companies Acts (Oxford University Press looseleaf), and sits on the Editorial Boards of the journals Corporate Ownership and Control, and International Corporate Rescue. He is an Academic Member of ECGI (European Corporate Governance Institute) and a co-editor of Pettet's Company Law.