prise and enhance the attractiveness of the UK as a location in which to do business.5
The reforms of derivative claims are, naturally, part of this wider drive. The paper focuses on
those areas that are particularly relevant to whether the new legal framework relating to
derivative claims is likely to promote these goals. Received wisdom would say that a
favourable corporate legal environment should offer: (1) easy access to the corporate form;
(2) minimum interference with management, and (3) appropriate investor protection.6 The
last two features are at the heart of any rules governing derivative actions. This is because the
challenge 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.7
Put differently, there is an interaction between managerial freedom and investor
protection. Managers can be expected to accept interventionist rules designed to protect
investors so long as the loss of autonomy is outweighed by the greater availability of capital,
or reduction of its cost, that results from the boost to investor confidence attributable to those
rules.8 The task for those charged with drawing up a competitive corporate regulatory product
is thus to strike the right balance between managerial freedom and investor protection. So a
5 CLR Final Report, paras 1.12-1.14. Although limited evidence considered in the context of the UK’s company
law review supports the view that fiscal, operational and macro-economic considerations rather than company
law are the major considerations in the decision whether or not to locate business in a particular state. But whilst
company law on its own may be relatively insignificant, the package of regulatory reform initiatives in the UK
is intended to provide incentives for business activity and investment that will, in the government’s view, have a
significant cumulative impact on productivity and economic growth. See E Ferran, 'Company Law Reform in
the UK' <https://ssrn.com/abstract=294508>, 2 citing Company Law Review Steering Group, ‘Modern Company
Law for a Competitive Economy: The Strategic Framework’ (Consultation Paper) (February 1999) URN 99/654
(CLR The Strategic Framework) para 5.6.3. All the CLR Consultation Papers are available online at
https://www.berr.gov.uk.
6 Ferran ibid, 3.
7 A Reisberg, Derivative Actions and Corporate Governance: Theory and Operation (Oxford University Press,
2007) 186.
8 Ferran n5, 3.
key question here is: On the basis of the new framework, how well has the UK Government
done in achieving this balance in the context of derivative claims?
Part II highlights deficiencies in the common law, the approach taken to reform, and
the guiding principles for resolving the problems identified. Part III analyses the new
statutory derivative claim introduced by the Companies Act 2006,,discussing its scope and
the procedural framework for the application for leave. Part IV critically assesses recent
reforms, looking in particular at major possible obstacles, drawing on recent experience in
foreign jurisdictions in which the derivative claim has been put on a statutory footing. This
analysis is meant to bring the reader forward to see the impact (in cost/benefit terms) of
reforms in what proved to be
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