英语论文网

An analysis of the new derivative action under Companies Act 2006
Abstract:
Introduction留学生论文网The new legislation seeks to do many things, including modernizing our company law, which is effectively based on 19th-century foundations. Arguably, one of the most important aspects of the new statute is the reform of the derivative action. The article conducts a critical analysis of the statutory of derivative action under Companies Act 2006, and then considers some debates for the reform of derivative action. The genesis of the reforms in this area can be span more than ten years. When the English Law Commission conducted an extensive inquiry into shareholder remedies. The earliest reform for this purpose can be traced back to the period between 1995 and 1997.    Following the first step the reforms of derivative action have been further appraised and considered by the Company Law Review Steering Group between 1998 and 2001 . Finally, this reform approved by the Government of UK and carried out by the Companies Act 2006.
In order to improve this remedy more effective and flexible, the reforms of derivative claims to be exercised by reference to statutory criteria set out in ss. 261-263 under Companies Act 2006. The statutory derivative action has been amongst the most publicized and debated new reforms introduced by this codification. It is seemly that this innovation discarded and replaced the rule in Foss v. Harbottle, and the concepts of ‘fraud on the minority’ and ‘wrongdoer control’. A judicial discretion to grant permission is a new approach.  The paper focuses on the effect of this reform, whether or not recent reforms and modernization of company law is likely to promote the goals: (1) minimum interference with management; (2) appropriate investor protection.  Because Reisberg claims that any rules governing derivative action cannot avoid
‘the challenge that is to steer a middle course between excessive reliance on a litigation remedy and judicial recourse for the shareholders on the one hand, and unreasonable interference in the affairs of the company on the other hand.’  
In order to improve this accessibility to protect minority shareholders, this innovation, which is largely based upon the recommendations of the Law Commission, is the simplification and modernization of the law.  These reforms have been controversial, with scholars arguing fears that these provisions widen the scope of such actions and have potential to increase claims against directors. It is obviously that the availability of the derivative action is effective approach as a shareholder remedy; however, the weakness of this action is hard to ignore.  This action to some extent cannot prevent shareholders abuse it, and then it will influent the business of their companies.  On the other hand, if the continuation of past policies, then it is not easy to actually institute legal proceedings as minority shareholder. Therefore, the key question about this issue is: how well has the UK Government done in achieving this balance between managerial freedom and investor protection.
In order to discuss and analysis this question about the derivative action, in this paper, there are five sections developing the main opinions in detail. Part II highlights deficiencies in the common law and the history background, which is the situation before the Companies Act 2006. The contents in this section provide an in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。