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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:2011-04-27编辑:zn1987点击率:4460
论文字数:989论文编号:org201104271106183352语种:英语 English地区:美国价格:免费论文
关键词:CreditorsInsolvencyJerseyMinority shareholdersUnfairly prejudicial conduct
"shareholder" or "investor" remedy?
Subject: Company law. Other related subjects: Insolvency
Keywords: Creditors; Insolvency; Jersey; Minority shareholders; Unfairly prejudicial conduct
The Privy 代写留学生论文 Council decision in Gamlestaden Fastigheter AB v Baltic Partners Ltdillustrates the continuing vitality of the Companies Act 1985, ss.459-461as a means of redressingcorporate mismanagement. Gamlestaden, a Swedish company, had entered into a joint venture witha view to investing in commercial property in Germany. It made its investment a combination of equityand loan finance through Baltic, a Jersey-registered vehicle. As a consequence, Gamlestaden wasboth a minority shareholder and a substantial creditor of Baltic. Two individuals who were primemovers behind the joint venture had withdrawn funds from the business during 1993. Baltic's directorshad apparently authorised the withdrawals even though no consideration had been given for them.Gamlestaden alleged that the withdrawals had damaged its investment by devaluing Baltic's onlyasset, namely its interest in the underlying business. For the purposes of the litigation, it wasaccepted that Baltic was factually insolvent.
The case against the Baltic directors was that they had acted negligently and in breach of duty in theiroversight of the company's affairs. Initially, Gamlestaden's strategy was to pursue a derivative actionin Jersey seeking damages on behalf of Baltic. This action stalled on the ground that the claim felloutside the “fraud on the minority” exception to the rule in Foss v Harbottle,3presumably because thecause of action was based on negligence rather than equitable fraud.4Gamlestaden thereforeswitched strategy and in 1997 commenced an application under Arts 141-143 of the Companies(Jersey) Law 1991 which are in identical terms to ss.459-461 of the 1985 Act. The essence of theclaim https://www.51lunwen.org/liuxuelunwendx/was that Baltic's affairs had been conducted in a manner unfairly prejudicial to Gamlestaden'sinterests as a member. The relief sought was corporate relief: an order that the directors paydamages to Baltic for breach of duty under the Jersey equivalent of s.461(1).
On Gamlestaden's appeal to the Privy Council from the decision of the Jersey courts to strike out itsclaim, two objections of principle were raised. First, it was objected that the court had no power togrant corporate relief on an application by a member of the company for relief from unfair prejudice.This objection was swiftly overcome: there was nothing in the wide language of Art.143(1) (“the courtmay make such order as it thinks fit for giving relief in respect of the matters complained of”) toprevent the court from making an order in favour of the company.
Secondly, as Baltic was insolvent, it was objected that the relief sought would confer no financialbenefit on Gamlestaden qua member. The award of damages to Baltic would not restore it tosolvency. So while Gamlestaden stood to benefit qua creditor, it had no legitimate interest to protectqua member. Accordingly, Baltic's directors argued that the claim was an abuse of process: theillegitimate use of a shareholder remedy to advance creditor interests.
In allowing the appeal, the Privy Council rejected this narrow view, preferring instead to have regardto the overall context:
“If the company is a joint venture company and the joint venturers have arranged that one, or more, o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。