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论文作者:留学生论文论文属性:职称论文 Scholarship Papers登出时间:2011-04-27编辑:点击率:5709

论文字数:3170论文编号:org201104271129351801语种:中文论文 Chinese地区:中国价格:免费论文

关键词:Derivative actionsHolding companiesHong KongParent companiesReflective loss

Case Comment
Multiple derivative actions
Subject: company law
Keywords: Derivative actions; Holding companies; Hong Kong; Parent companies; Reflective loss;
Shareholders
*L.Q.R. 209 THE standard derivative http://www.51lunwen.org/ action involves a situation where a shareholder of a company
commences an action on behalf of the company of which he is a member alleging a breach of duty
by the directors of the company. However, many corporate structures are in group form and the
breach of duty may have not only been by the directors of the parent company (“P”) but also by the
directors of a subsidiary or a sub-subsidiary. This raises the question of whether a member of P may
also commence a derivative action on behalf of the various subsidiaries within the group with
respect to a breach of duty by directors of companies directly or indirectly controlled by P. Such
actions were referred to as “multiple derivative actions” by Lord Millett in Waddington Ltd v Chan
Ho Thomas (September 8, 2008), a decision of the Final Appeal Court of Hong Kong in which his
Lordship, sitting as the Non Permanent Judge of the court, gave the leading judgment. Waddington
Ltd (the respondent) was a minority shareholder in Playmates Ltd holding 6.5 per cent of the shares.
Playmates Ltd controlled a wholly owned subsidiary and two wholly owned sub-subsidiaries. Chan Ho
Thomas (the appellant) was a director of all of the companies and it was alleged that the various
subsidiary companies had entered into a number of transactions for the personal benefit of the
appellant. The respondent had succeeded in its argument below that a multiple derivative action
was allowable and that it had standing to bring it with respect to the alleged breaches of duty by the
appellant. There were two issues before the Final Appeal Court of Hong Kong. The first was whether
a derivative action may be brought by a person who was not a member of the company in which the
cause of action is vested but a member of its parent or ultimate holding company. The second
question raised the issue of whether there was a relevant exception to the principle which precludes a
shareholder from bringing an action with respect to losses that are merely reflective of loss suffered
by the company, which applied to the facts in Waddington Ltd v Chan Ho Thomas.
*L.Q.R. 210 As Lord Millett pointed out, there were cases in the United Kingdom where a multiple
derivative action had been allowed but the issue was not fully analysed or the right of the plaintiff to
bring the action challenged. In Wallersteiner v Moir (No.2) [1975] 1 Q.B. 373 CA the plaintiff brought
two claims, one to recover damages for the company of which he was a member and the other to
recover damages for loss suffered by its subsidiary. This fact did not escape the Court of Appeal
which observed that if damages were recovered they would be paid in one case to the company and
in the other to the subsidiary. There have been other cases where a multiple derivative was allowed
but the right of action was simply assumed (see, e.g. Halle v Trax [2000] B.C.C. 1020 Ch D; Airey v
Cordell [2006] EWHC 2728, [2007] B.C.C. 785). The normal rule is clear, where there is a wrong
committed against the company, the proper plaintiff is the company (Lord Millett at [47]). However, the
courts developed an exception to this rule to permit a member in certain restricted c论文英语论文网提供整理,提供论文代写英语论文代写代写论文代写英语论文代写留学生论文代写英文论文留学生论文代写相关核心关键词搜索。

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