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E-raamat: Company Directors' Responsibilities to Creditors [Taylor & Francis e-raamat]

(University of Leeds, UK)
  • Formaat: 424 pages
  • Ilmumisaeg: 26-Oct-2006
  • Kirjastus: Routledge Cavendish
  • ISBN-13: 9780203945438
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Company Directors' Responsibilities to CreditorsSuurem pilt
  • Formaat: 424 pages
  • Ilmumisaeg: 26-Oct-2006
  • Kirjastus: Routledge Cavendish
  • ISBN-13: 9780203945438
Teised raamatud teemal:
Taylor & Francis e-raamatudRohkem infot Taylor & Francis e-raamatute kohta
Raamatu kodulehekülg: https://www.taylorfrancis.com/books/9780203945438

This timely work is the first to comprehensively examine directors' responsibilities to creditors in times of financial strife, as well as addressing when these responsibilities arise, and what directors should have to do to ensure that they comply with their obligations.

Keay explores the relevant issues from doctrinal, normative and comparative perspectives and addresses the question as to when directors are liable for wrongful trading, fraudulent trading or breach of their duties to creditors and whether directors should be held responsible for the before mentioned. Besides the relevant UK legislation and case law, legislation and case law from Australia, Canada, Ireland and the United States are examined and compared and reforms which take into account the aims and rationale of the relevant legislation as well as creditors' interests are proposed and assessed.

Importantly, new approaches for courts which would make the nature of the responsibility and its timing more precise are suggested.

Company directors have certain responsibilities to creditors of their companies. In particular, they should avoid fraudulent and wrongful trading and consider, as part of their duties, the interests of creditors when their companies might be, or are, in financial difficulty. 

The work is precipitated by the lack of coherence in the consideration of wrongful trading and the recent delivery of important cases on fraudulent trading.  Also, this timely work is the first to comprehensively examine directors' responsibilities to creditors in times of financial strife, as well as addressing when these responsibilities arise, and what directors should have to do to ensure that they comply with their obligations. Keay explores the relevant issues from doctrinal, normative and comparative perspectives and seeks to address the question as to when directors are liable for wrongful trading, fraudulent trading or breach of their duties to creditors and whether directors should be held responsible for wrongful trading and failing to consider the interests of creditors. Besides the relevant UK legislation and case law, legislation and case law from Australia, Canada, Ireland and the United States are examined and compared, and reforms which take into account the aims and rationale of the relevant legislation as well as creditors' interests are proposed and assessed. Importantly, new approaches for courts which would make the nature of the responsibility and its timing more precise are suggested.

Preface xi
Table of cases xv
Table of legislation xxiii
Table of statutory instruments xxv
Table of international legislation xxvii
PART A Introduction 1
1. Background to directors' responsibilities
3
Introduction
3
Directors – who are they?
4
Responsibilities and obligations
8
The lay-out of the book
12
2. 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
PART B Fraudulent trading 23
3. Fraudulent trading: background, aims and comparisons
25
Introduction
25
Background
25
Aims
27
Comparisons
28
4. 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
5. Intent to defraud and fraudulent purpose
51
Introduction
51
Intent to defraud
52
Fraudulent purpose
62
Conclusion
63
6. 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
PART C Wrongful trading 71
7. Wrongful trading: background, aims, rationale and comparisons
73
Introduction
73
Background
74
Aims
75
Rationale
77
Comparisons
78
8. 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
9. A defence to wrongful trading
111
Introduction
111
The substance of the defence
111
Every step: meaning
112
Relief from liability
121
10. 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
PART D A duty to consider the interests of creditors 151
11. 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
12. 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
13. When does the duty arise?
199
Introduction
199
The point when the duty arises
199
An assessment
208
Conclusion
220
14. 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
15. 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
16. 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
17. Are all creditors to be favoured?
281
Introduction
281
The issues
281
The case law
284
Conclusion
286
PART E Theoretical analysis 287
18. Introduction to the theoretical analysis
289
19. 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
20. A theoretical analysis of wrongful trading
343
Introduction
343
Opposition to regulation
343
Support for regulation
359
Conclusion
367
21. 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
22. Conclusions and reflections
383
Index 387


Andrew Keay is Professor of Corporate and Commercial Law in the School of Law's Centre for Business Law and Practice at the University of Leeds, where he specialises in teaching Corporate Law and Insolvency Law. He is the Commonwealth editor of Gore Browne on Companies and he is a member of the editorial boards of several journals. He has authored a number of books including McPherson's Law of Company Liquidation, 2001, Insolvency Law: Corporate and Personal, 2003, Insolvency Legislation: Annotations and Commentary, 2005 (co-authored).
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