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Company Directors' Responsibilities to Creditors [Kõva köide]

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(University of Leeds, UK)
  • Formaat: Hardback, 422 pages, kõrgus x laius: 234x156 mm, kaal: 940 g
  • Ilmumisaeg: 03-Nov-2006
  • Kirjastus: Routledge Cavendish
  • ISBN-10: 1845680758
  • ISBN-13: 9781845680756
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Company Directors' Responsibilities to CreditorsSuurem pilt
  • Formaat: Hardback, 422 pages, kõrgus x laius: 234x156 mm, kaal: 940 g
  • Ilmumisaeg: 03-Nov-2006
  • Kirjastus: Routledge Cavendish
  • ISBN-10: 1845680758
  • ISBN-13: 9781845680756
Teised raamatud teemal:
Püsilink: https://www.kriso.ee/db/9781845680756.html
Märksõnad:

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.

Arvustused

"Keay's text...would be [ a] welcome addition to any corporate insolvency law library." - Insolvency Law Journal, issue 201 (2007)

Preface xi
Table of cases
xv
Table of legislation
xxiii
Table of statutory instruments
xxv
Table of international legislation
xxvii
PART A Introduction
1(22)
Background to directors' responsibilities
3(10)
Introduction
3(1)
Directors -- who are they?
4(4)
Responsibilities and obligations
8(4)
The lay-out of the book
12(1)
Creditors -- who are they?
13(10)
Who is a creditor?
13(2)
Kinds of creditors
15(1)
Consensual creditors
15(3)
Involuntary creditors
18(1)
Customers
18(1)
Creditor protection
18(3)
Summary
21(2)
PART B Fraudulent trading
23(48)
Fraudulent trading: background, aims and comparisons
25(6)
Introduction
25(1)
Background
25(2)
Aims
27(1)
Comparisons
28(3)
The fraudulent trading provision and its scope
31(20)
Introduction
31(1)
The make-up of section 213
32(1)
The applicant
33(1)
Persons liable
34(3)
Applications
37(2)
Criminal proceedings
39(1)
Conditions for liability
40(5)
What constitutes fraudulent trading?
45(1)
Loss
45(1)
The order
46(2)
The destination of proceeds
48(3)
Intent to defraud and fraudulent purpose
51(14)
Introduction
51(1)
Intent to defraud
52(10)
Fraudulent purpose
62(1)
Conclusion
63(2)
Fraudulent trading: an assessment
65(6)
Introduction
65(1)
Actions available before liquidation?
65(1)
Other applicants?
66(1)
The public element
67(2)
Interpretation of the provision
69(1)
Substituting the incurring of debts for fraudulent trading?
69(1)
Conclusion
70(1)
PART C Wrongful trading
71(80)
Wrongful trading: background, aims, rationale and comparisons
73(8)
Introduction
73(1)
Background
74(1)
Aims
75(2)
Rationale
77(1)
Comparisons
78(3)
The wrongful trading provision and its scope
81(30)
Introduction
81(1)
The applicant
81(2)
Claims
83(3)
The elements required for liability
86(7)
The point of liability
93(1)
What should directors be doing?
94(2)
Court considerations
96(3)
The types of companies involved in actions
99(1)
Loss
100(1)
The order
101(3)
The effects of an order
104(5)
The public factor
109(2)
A defence to wrongful trading
111(14)
Introduction
111(1)
The substance of the defence
111(1)
Every step: meaning
112(9)
Relief from liability
121(4)
An assessment of wrongful trading: pros, problems and prognoses
125(26)
Introduction
125(1)
Applicants
125(3)
The point of liability
128(1)
Wrongdoing
129(1)
Every step -- the defence
130(1)
Funding
131(5)
The public factor
136(1)
An assessment
137(10)
Reforms
147(2)
Conclusion
149(2)
PART D A duty to consider the interests of creditors
151(136)
The development of the duty to consider the interests of creditors
153(26)
Introduction
153(2)
The evolution of the duty
155(6)
Recent judicial opinion in the UK
161(1)
Approaches in other jurisdictions
162(11)
The duty considered in the course of law reform in the UK
173(3)
Conclusion
176(3)
The duty to creditors: nature, rationale and need
179(20)
Introduction
179(1)
The nature of the duty
179(2)
The rationale for the duty
181(3)
Is the duty needed?
184(10)
Disadvantages of bringing proceedings for breach of duty to creditors
194(2)
Uses for breach of duty actions
196(1)
Conclusion
197(2)
When does the duty arise?
199(22)
Introduction
199(1)
The point when the duty arises
199(9)
An assessment
208(12)
Conclusion
220(1)
How are the directors to function when subject to a duty to creditors?
221(32)
Introduction
221(1)
In what ways are directors to function?
222(3)
The balancing of interests
225(13)
Governance in
Chapter 11 bankruptcy
238(3)
A framework
241(9)
Dissension at board level
250(1)
Conclusion
251(2)
A direct duty to creditors?
253(16)
Introduction
253(1)
The problems with a direct duty
254(4)
The legal position
258(6)
Should there be an independent duty?
264(2)
Conclusion
266(3)
Commencement of proceedings
269(12)
Introduction
269(1)
Shareholders and creditors
270(1)
Misfeasance proceedings
271(1)
Class actions
272(1)
Derivative actions
273(3)
Oppression and/or unfair prejudice remedy
276(3)
Why might some creditors not want to pursue proceedings?
279(1)
Conclusion
279(2)
Are all creditors to be favoured?
281(6)
Introduction
281(1)
The issues
281(3)
The case law
284(2)
Conclusion
286(1)
PART E Theoretical analysis
287(100)
Introduction to the theoretical analysis
289(4)
A theoretical analysis of the duty to consider creditors
293(50)
Introduction
293(1)
The contractarian paradigm and the law and economics movement
293(7)
Progressive scholarship
300(2)
Distributional fairness
302(7)
Efficiency
309(10)
Creditor protection -- is it warranted?
319(13)
Types of creditors
332(4)
Creditors have no right to initiate proceedings
336(1)
Commercial morality
337(1)
The creditors as residual claimants
338(2)
Conclusion
340(3)
A theoretical analysis of wrongful trading
343(26)
Introduction
343(1)
Opposition to regulation
343(16)
Support for regulation
359(8)
Conclusion
367(2)
Directors' responsibilities and opting out
369(14)
Introduction
369(1)
Mandatory and enabling (default) rules
370(4)
Fraudulent trading
374(1)
Wrongful trading
375(4)
Duty to consider the interests of creditors
379(1)
Conclusion
380(3)
Conclusions and reflections
383(4)
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).