Authors: Andrew Keay
ISBN-13: 9781845680756, ISBN-10: 1845680758
Format: Hardcover
Publisher: Taylor & Francis, Inc.
Date Published: November 2006
Edition: (Non-applicable)
Book Synopsis
Comprehensively examining directors' responsibilities to creditors in times of financial strife, this volume, international in scope, analyzes and compares relevant UK legislation and case law with that from Australia, Canada, Ireland and the US.
Table of Contents
Preface xi
Table of cases xv
Table of legislation xxiii
Table of statutory instruments xxv
Table of international legislation xxvii
Introduction 1
Background to directors' responsibilities 3
Introduction 3
Directors - who are they? 4
Responsibilities and obligations 8
The lay-out of the book 12
Creditors - who are they? 13
Who is a creditor? 13
Kinds of creditors 15
Consensual creditors 15
Involuntary creditors 18
Customers 18
Creditor protection 18
Summary 21
Fraudulent trading 23
Fraudulent trading: background, aims and comparisons 25
Introduction 25
Background 25
Aims 27
Comparisons 28
The fraudulent trading provision and its scope 31
Introduction 31
The make-up of section 213 32
The applicant 33
Persons liable 34
Applications 37
Criminal proceedings 39
Conditions for liability 40
What constitutes fraudulent trading? 45
Loss 45
The order 46
The destination of proceeds 48
Intent to defraud and fraudulent purpose 51
Introduction 51
Intent to defraud 52
Fraudulent purpose 62
Conclusion 63
Fraudulent trading: an assessment 65
Introduction 65
Actions available before liquidation? 65
Other applicants? 66
The public element 67
Interpretation of the provision 69
Substituting the incurring of debts for fraudulent trading? 69
Conclusion 70
Wrongful trading 71
Wrongful trading: background, aims, rationale and comparisons 73
Introduction 73
Background 74
Aims 75
Rationale 77
Comparisons 78
The wrongful trading provision and its scope 81
Introduction 81
The applicant 81
Claims 83
The elements required for liability 86
The point of liability 93
What should directors be doing? 94
Court considerations 96
The types of companies involved in actions 99
Loss 100
The order 101
The effects of an order 104
The public factor 109
A defence to wrongful trading 111
Introduction 111
The substance of the defence 111
Every step: meaning 112
Relief from liability 121
An assessment of wrongful trading: pros, problems and prognoses 125
Introduction 125
Applicants 125
The point of liability 128
Wrongdoing 129
Every step - the defence 130
Funding 131
The public factor 136
An assessment 137
Reforms 147
Conclusion 149
A duty to consider the interests of creditors 151
The development of the duty to consider the interests of creditors 153
Introduction 153
The evolution of the duty 155
Recent judicial opinion in the UK 161
Approaches in other jurisdictions 162
The duty considered in the course of law reform in the UK 173
Conclusion 176
The duty to creditors: nature, rationale and need 179
Introduction 179
The nature of the duty 179
The rationale for the duty 181
Is the duty needed? 184
Disadvantages of bringing proceedings for breach of duty to creditors 194
Uses for breach of duty actions 196
Conclusion 197
When does the duty arise? 199
Introduction 199
The point when the duty arises 199
An assessment 208
Conclusion 220
How are the directors to function when subject to a duty to creditors? 221
Introduction 221
In what ways are directors to function? 222
The balancing of interests 225
Governance in Chapter 11 bankruptcy 238
A framework 241
Dissension at board level 250
Conclusion 251
A direct duty to creditors? 253
Introduction 253
The problems with a direct duty 254
The legal position 258
Should there be an independent duty? 264
Conclusion 266
Commencement of proceedings 269
Introduction 269
Shareholders and creditors 270
Misfeasance proceedings 271
Class actions 272
Derivative actions 273
Oppression and/or unfair prejudice remedy 276
Why might some creditors not want to pursue proceedings? 279
Conclusion 279
Are all creditors to be favoured? 281
Introduction 281
The issues 281
The case law 284
Conclusion 286
Theoretical analysis 287
Introduction to the theoretical analysis 289
A theoretical analysis of the duty to consider creditors 293
Introduction 293
The contractarian paradigm and the law and economics movement 293
Progressive scholarship 300
Distributional fairness 302
Efficiency 309
Creditor protection - is it warranted? 319
Types of creditors 332
Creditors have no right to initiate proceedings 336
Commercial morality 337
The creditors as residual claimants 338
Conclusion 340
A theoretical analysis of wrongful trading 343
Introduction 343
Opposition to regulation 343
Support for regulation 359
Conclusion 367
Directors' responsibilities and opting out 369
Introduction 369
Mandatory and enabling (default) rules 370
Fraudulent trading 374
Wrongful trading 375
Duty to consider the interests of creditors 379
Conclusion 380
Conclusions and reflections 383
Index 387
Subjects