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论文作者:代写留学生论文论文属性:硕士毕业论文 thesis登出时间:2011-05-04编辑:zn1987点击率:5893
论文字数:16921论文编号:org201105040903233557语种:英语 English地区:澳大利亚价格:$ 66
关键词:AustraliaComparative lawDerivative actionsDiscretionRegulationStatutory
Law Quarterly Review
Subject: Company law
Keywords: Australia; Comparative law; Derivative actions; Discretion; Regulation; Statutory
Interpretation
INTRODUCTION
THE statutory derivative action, which replaced the common law action from October 1,代写留学生论文 2007,1hasbeen amongst the most publicized and debated reforms introduced by the Companies Act 2006 (“the Act”).2The aim behind this innovation, which is largely based upon the recommendations of the Law Commission, is the simplification and modernization of the law in order to improve its accessibility.3Toachieve this, the arcane rule in Foss v Harbottle, and the concepts of “fraud on the minority” and“wrongdoer control”, have been discarded and replaced by a judicial discretion to grant permission, which is to be exercised by reference to statutory criteria set out in ss.261-263 of the Act. These reforms have been controversial, with practitioners voicing fears that they will lead to increased litigation against directors by activist shareholders.4This is because, in a change to the existing law, shareholders can now bring a derivative action against directors for negligence from which they donor benefit, as well as for other breaches of duty. Lawyers are concerned that, when married with the new duty imposed on directors under s.172 of the Act, which requires directors to promote the success of the company, this will result in shareholders bringing derivative actions alleging that directors have negligently failed to have regard to one of the factors in s.172, or placed undue weight on others.
However, the real ramifications of the action are unclear. Much depends upon the approach the courts take to determining whether to grant *L.Q.R. 470 permission to proceed with the action. If they adopt a restrictive approach, few actions may survive the application for permission, which must be sought early, after issue of proceedings. This application for permission is a two-stage process. First a shareholder must establish a prima facie case that he should be granted permission, failing which the claim will be dismissed.6If he succeeds, the application proceeds to the second stage, which is contested. Here, the courts have a discretion as to whether to allow the claim to proceed.7Inexercising this discretion they must take account of the following: whether the shareholder is acting in good faith; the importance which a person under a duty to promote the success of the company would attach to continuing the action; whether the wrong could be ratified or authorized; whether the company has decided not to bring a claim; the availability of an alternative remedy; and the views of the independent members of the company.
The availability of the derivative action, its utility as a shareholder remedy, and its potential for abuse, will depend on how courts assess whether a prima facie case exists, and on how they exercise their discretion. The aim of this article is to consider how the courts could approach this task. Because the new action replaces the common law, and there is a lack of judicial precedent on how the criteria should be applied, in the first years of the Act, legal representatives and the courts will look for guidance to potentially relevant pre-existing domestic cases, as well as to analogous jurisprudence in other Commonwealth jurisdictions. This article will examine this domestic case law, and focus on Australian case law dealing with 本论文由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。