Friday, 23 June 2017

USA: Delaware corporate law and distributed ledger technologies

Earlier this month the Delaware Senate passed a Bill one of the purposes of which is to provide specific authority for Delaware corporations to use distributed ledgers (of which blockchain is an example) for the creation and maintenance of corporate records: see here. A copy of the Bill is available here or here (pdf).

Thursday, 22 June 2017

EU: Commission proposes new transparency rules for tax intermediaries

The European Commission yesterday published proposals to require intermediaries (e.g., tax advisers, accountants and lawyers) to report to their local tax authorities any cross-border tax planning arrangements where these bear at least one of a number of identified hallmarks (including, for example, that the arrangement involves a cross-border payment to a recipient resident in a no-tax country; or, the arrangements involve a jurisdiction with inadequate or weakly enforced anti-money laundering legislation). For further information see the following materials from the Commission: FAQs | press release | video | dedicated website.

Wednesday, 21 June 2017

UK: Good Mortgages Bill in Queen's Speech

Last year the Law Commission published proposals for the reform of the law governing bills of sale, including the repeal of the Bills of Sale Act 1878 and the Bills of Sale Act (1878) Amendment Act 1882 and the introduction of new legislation - a Good Mortgages Act - providing more protection for borrowers and fewer burdens on lenders: see here. This proposed new law was amongst the legislative proposals contained in today's Queen's Speech, in which the Government's plans for the next couple of years were set out. A copy of the Speech will be available here shortly.

Tuesday, 20 June 2017

USA: PCAOB adopts new standard to enhance relevance and usefulness of the auditor's report

The Public Company Accounting Oversight Board has adopted a new standard the purpose of which is to enhance the relevance and useful of the auditor's report. An overview is available here and the new standard is available here (pdf). Included is the requirement for the auditor to disclose in its report certain "critical audit matters" (or to state that there are no such matters). In general terms, such matters are those communicated to the audit committee (or required to be communicated), relating to disclosures that are material to the financial statements and involving especially challenging, subjective or complex audit judgment.

Monday, 19 June 2017

Hong Kong: HKEX publishes New Board concept paper

Hong Kong Exchanges and Clearing Limited (HKEX) has published a concept paper on the formation of a New Board, in addition to the current Main Board and Growth Enterprise Market (GEM): see here (pdf). Companies listing on the New Board would be divided into two segments: one called "Pro" for companies not meeting the financial or track record criteria for GEM or the Main Board; and another called "Premium" for companies meeting these criteria but having what the paper refers to as "non-standard" governance structures. HKEX is also reviewing the GEM and Main Board listing rules: see here.

Friday, 16 June 2017

UK: England and Wales: the fiduciary duties of members of a charitable company

The ICLR has published a summary of the recent judgment Children’s Investment Fund Foundation (UK) v Attorney General [2017] EWHC 1379 (Ch): see here. The judgment is noteworthy because it contains discussion of the extent to which the members of a charitable company limited by guarantee owed duties to the company that served to impose a limitation on the exercise of their voting rights as members. Such a limitation was found to exist.  To quote from the ICLR summary:
"A member of a company limited by guarantee without a share capital with exclusively charitable objects was bound in to the regime now contained in the Charities Act 2011, the whole thrust of which was to ensure that the assets of the company were used for its exclusively charitable objects and for no other purpose. In those circumstances the members of the claimant did not stand outside the charity; they were part of the administration of the charity and they could not lay claim to any private interest. It would be contrary to the whole regime established by the increasingly prescriptive legislative regime reflected in the 2011 Act if the member of a company such as the claimant could vote in his interests or in a manner detrimental to the charitable objects of the company".

UK: FCA consults on powers in relation to LIBOR contributions

The Financial Conduct Authority has published a consultation paper seeking views on how it should exercise the new powers it has been given to require, if necessary, banks to contribute data for the purposes of calculating the LIBOR rate: see here (pdf).

Thursday, 15 June 2017

UK: FRC reports on audit quality

The Financial Reporting Council has today published the results of its annual audit quality inspections, including inspection reports for the six largest audit firms: see here. No overall change in audit quality is reported, with 81% of FTSE350 audits reviewed classified as requiring no more than limited improvements (against a target of 90%).

Apologies: life and work rather hectic, hence the lack of regular posting - but a 'normal' service will resume very soon

Thursday, 8 June 2017

Germany: English translation of the new Corporate Governance Code

A copy of the new edition of Germany's Corporate Governance Code was published in the Federal Gazette earlier this year: see here. An English translation is now available: see here.

Monday, 5 June 2017

South Africa: shareholders' derivative claims and good faith

The Supreme Court of Appeal gave judgment last week in Lazarus Mbethe v United Manganese of Kalahari (503/2016) [2017] ZASCA 67: see here or here (pdf). This is an important - and now leading - authority on the operation of the derivative action in South Africa under section 165 ("Derivative actions") of the Companies Act 71 of 2008. A short summary of the decision is available here (pdf). At issue was the good faith requirement imposed on the applicant under section 165(5)(b). The court held, amongst other things, that the requirement of good faith did not require the absence of a collateral purpose; however, any collateral purpose was relevant when considering (under section 165(5)(b)) whether the proceedings involved a serious question of material consequence to the company.

Friday, 2 June 2017

India: SEBI establishes corporate governance committee

The Securities and Exchange Board of India has established a corporate governance committee and asked it to provide advice, within four months, on a range of governance matters including the independence "in spirit" of independent directors, the effectiveness of board evaluation practices and participation and voting at general meetings: see here.

UK: England and Wales: the exercise of discretion and a share option agreement

His Honour Judge Waksman QC (sitting as a Judge of the High Court) gave judgment at the end of last month in Watson v watchfinder.co.uk Ltd [2017] EWHC 1275 (Comm). A summary of the case has now been provided by the ICLR: see here. Here is an extract from the summary: "Although the court would not, in every case, inevitably find that a discretion should not be exercised in a manner that was arbitrary, capricious or irrational in the public law sense, it was appropriate to do so in relation to the share option agreement. To conclude otherwise would give rise to commercial absurdity and render the share option agreement worthless".

Thursday, 1 June 2017

Pakistan: Companies Bill, 2017 becomes law

The SECP has announced that the President signed the Companies Bill, 2017, earlier this week: see here (pdf). The Bill has, therefore, become law as the Companies Act, 2017, and replaces the Companies Ordinance, 1984. A copy of the Act, which also contains provisions relating to insolvency, is available here (pdf).

Section 204 contains the duties of directors; sub-section (2) provides: "A director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees the shareholders the community and for the protection of environment".

According to the SECP, the Act "... is the longest and one of the most exhaustive pieces of legislation ever approved by [the] Pakistani parliament. It has 515 sections and eight schedules, and took almost 12 years in the making".

Wednesday, 31 May 2017

Japan: new edition of the Stewardship Code published

Following a consultation earlier this year, the Council of Experts on Japan’s Stewardship Code has now published a final version of its updated Stewardship Code: see here. An English translation of the new Code is available here (pdf). A copy of the Code, in English, highlighting the changes made is available here (pdf).

Tuesday, 30 May 2017

EU: ECB guidance on 'fit and proper' assessments

The European Central Bank has published a guide on the 'fit and proper' assessments that it undertakes in respect of board members (whether management or supervisory) for those institutions under its direct supervision: see here (pdf). This role forms part of the ECB's supervisory activities under Article 4(1)(e) of the SSM Regulation (Regulation (EU) No 1024/2013).

Monday, 29 May 2017

Jersey: the Bank (Recovery and Resolution) (Jersey) Law 2017

A copy of the Bank (Recovery and Resolution) (Jersey) Law 2017 has been published: see here or here (pdf). The Law was adopted by the States in February and sanctioned by Order of Her Majesty in Council earlier this month: see here (pdf). As its title suggests, the new Law sets out the framework for dealing with failing banks (or those likely to fail) and provides for the creation of the Jersey Resolution Authority.

Friday, 26 May 2017

Isle of Man: The Beneficial Ownership Act 2017

The Beneficial Ownership Act 2017 received Royal Assent last month. The Act - available here (pdf) - replaces the Companies (Beneficial Ownership) Act 2012 (here, pdf). An overview of the new Act is available here. In very general terms, the Act sets out the framework whereby details of those controlling more than 25% of the beneficial ownership of a company are held in the Isle of Man database of beneficial ownership.

Thursday, 25 May 2017

EU: Landeskreditbank fails in its challenge of the ECB's direct supervisory oversight

Earlier this month the General Court of the European Union gave its judgment in Landeskreditbank Baden-W├╝rttemberg ‒ F├Ârderbank v ECB (Case T-122/15). The General Court - sitting in extended composition - dismissed Landeskreditbank's action in which it had challenged the decision of the European Central Bank to classify it as a significant entity (and, therefore, one that fell under the direct supervision of the ECB through the single supervisory mechanism). A summary is available here (pdf).

Wednesday, 24 May 2017

EU: Shareholder Rights Directive published in the Official Journal

The new Shareholder Rights Directive (Directive (EU) 2017/828), amending Directive 2007/36/EC, has now been published in the Official Journal of the European Union: see here. For further information about the changes being made, see here.

Tuesday, 23 May 2017

Jersey: Limited Liability Partnerships (Jersey) Law 2017

A copy of the revised framework governing limited liability partnerships in Jersey - the Limited Liability Partnerships (Jersey) Law 2017 - has recently been published on the Jersey Legal Information Board's website: see here.

Monday, 22 May 2017

Ireland: CLRG publishes annual report

The Company Law Review Group has published its annual report: see here (pdf). The annual report says that, in the coming months, the Group will publish a report into possible protections for company employees and unsecured creditors.  It is also said that the Group's current review of the enforcement of company law is at an advanced stage (a discussion document has been considered by the Group and a final report for publication is underway).

Friday, 19 May 2017

Japan: TSX white paper on the corporate governance of listed companies

The Tokyo Stock Exchange has published the latest edition of its corporate governance white paper: see here (pdf). The white paper - that is what it is called in the English version, although it's not a white paper in the more traditional sense that this term is used in the UK - presents a very comprehensive analysis of listed companies' corporate governance practices as well their compliance with the 2015 corporate governance code.

Thursday, 18 May 2017

UK: Corporate governance and the Conservative Party's manifesto

The Conservative Party published its election manifesto today: see here (pdf). This sets out several commitments concerning corporate governance - under the banners of "fairer corporate governance" and "better corporate governance" - that we can expect to see in a white paper when/if the Party is re-elected to Government (if the election had not been called, it's likely that we would have had the white paper by now, following on from the green paper last autumn). There are also commitments to reform the rules on takeovers and mergers.

With regard to governance, there appears to be a commitment to introduce through legislation an annual binding vote on remuneration (the wording in the manifesto is not as clear as it could be); it is also said that companies will be required to publish pay ratios. Change to the law is also promised to require listed companies to introduce a mechanism for greater employee voice on the board. Several options for achieving this are given including having an employee nominated director, creating an employee advisory council or assigning responsibility for employee representation to one of the non-executive directors. There is also a pledge to consult on how to strengthen the governance of private companies.

EU: Commission begins company law consultation

The European Commission has begun a consultation seeking views on how to promote the use of online tools throughout a company's life, as well as the problems that currently exist in cross-border restructuring and operations (including conflict of law rules): see here.

Wednesday, 17 May 2017

UK: 'Strengthening accountability' - PRA publishes updated policy statements

The Prudential Regulation Authority has published updated supervisory statements in respect of the accountability framework for banking and insurance (including the Senior Managers and Certification regime): see here.

Tuesday, 16 May 2017

Pakistan: Senate passes the Companies Bill, 2017

The SECP has announced that Senate has approved the Companies Bill, 2017: see here (pdf). This follows approval from the Senate Standing Committee on Finance, Revenue, Economic Affairs, Statistics and Privatization earlier this month and approval from the National Assembly in February. The Bill, once enacted and in force, will replace the Companies Ordinance, 1984.

Update (1 June 2017) - the Bill has become law: see here.

Monday, 15 May 2017

UK: Pre-Pack Pool publishes its first annual report

The Pre-Pack Pool has published its first annual report: see here (pdf). The Pool was launched in November 2015, in response to one of the key recommendations in the Graham Review. The Pool was set up to provide  an independent review of proposed connected party pre-pack transactions before they are completed, thereby providing an assurance for creditors.

The report notes that between 1 November 2015 and 31 December 2016, the Pool received for review 53 proposed connected party pre-pack purchases. The majority of these received a 'not unreasonable' opinion; six received a 'case not made' opinion. The report also notes that the number of pre-packs has fallen faster than the overall decline in administrations, and that the number of connected party purchases has also fallen.

Australia: extending crowd-sourced equity funding to proprietary companies

The Treasury is seeking views on draft legislation the purpose of which is to extend crowd-sourced equity funding to proprietary companies. A copy of the Corporations Amendment (Crowd-Sourced Funding for Proprietary Companies) Bill 2017 is available here (pdf). An explanatory memorandum is available here (pdf) and further background information is available here.

Friday, 12 May 2017

Bhutan: the Companies Act 2016 and the pursuit of gross national happiness

A copy (in English) of the Companies Act 2016, which contains Bhutan's new company law framework, is now available: see here (pdf). The influence of the UK's Companies Act 2006 can be seen: compare, for example, sections 161 and 162 of the 2016 Act with section 172 of the UK's Companies Act 2006. The differences between the UK and Bhutan become apparent, however, when looking at section 163 of the 2016 Act, which requires (to quote the English translation), the establishment of "...a Code of Conduct for the governance of companies which shall promote those conditions that will enable the pursuit of Gross National Happiness in accordance with Article 9, section 2 of the Constitution of the Kingdom of Bhutan".

Thursday, 11 May 2017

New Zealand: new edition of the NZX corporate governance code published

NZX has published an updated edition of its corporate governance code: see here (pdf). The Code will apply to all NZX Main Board listed issuers for reporting periods ending on and after 31 December 2017. For further information, see here and here.

Wednesday, 10 May 2017

Thailand: SEC publishes new governance code and new code for institutional investors

Earlier this year the Securities and Exchange Commission published a new edition of its Corporate Governance Code for Listed Companies as well as a new Investment Governance Code for Institutional Investors: see, respectively (both in English), here (pdf) and here. It is interesting to note the emphasis placed upon innovation and responsible business in the governance code. The new code for institutional investors contains most (if not all) of the principles that are becoming commonplace in such codes (e.g., disclosure; monitor and engage; have policies on engagement and the exercise of voting rights; manage conflicts of interest; act collectively where appropriate).

Tuesday, 9 May 2017

Europe: freedom of establishment and cross-border conversions

Advocate-General Kokott delivered her opinion last Thursday in Polbud-Wykonawstwo sp. z o.o., in liquidation (Case C-106/16). The provisional text of the opinion is available here.

The case concerned a Polish private limited company that wanted to transfer its legal seat to Luxembourg. The mechanism for doing so under Polish law required the company to be removed from the Polish commercial register, the process for which also demanded that the company was wound-up.  Did this requirement for winding-up undermine freedom of establishment under the Treaty on the Functioning of the European Union?  Yes, according to the Advocate-General; to quote directly from her opinion:
"In the case where a company incorporated under the law of one Member State has actually established itself, or intends to establish itself, in another Member State for the purpose of carrying on genuine economic activity there, and converts itself into a company governed by the law of the latter Member State, the application of national legislation under which the removal of that company from the commercial register of the Member State of origin is subject to the condition that that company must first be wound up after having been liquidated restricts the freedom of establishment".

Monday, 8 May 2017

UK: The Criminal Finances Act 2017

A copy of the Criminal Finances Act 2017, which became law last month, has now been published: see here or here (pdf). Part 3 contains two new corporate offences: the failure to prevent the facilitation of UK tax evasion offences (section 45); and the failure to prevent the facilitate of foreign tax evasion offences (section 46). It is for the Treasury to determine when Part 3 will be brought into the force (section 58).

Germany: new edition of governance code published in Federal Gazette

A copy of the new edition of Germany's Corporate Governance Code has been published in the Federal Gazette: see here and here (pdf). An English translation will be available soon. For background information about the new Code, see here.

Friday, 5 May 2017

Pakistan: Companies Bill, 2017 approved by Senate Standing Committee

The Senate Standing Committee on Finance, Revenue, Economic Affairs, Statistics and Privatization has approved, with changes, the Companies Bill, 2017. The Bill, which was passed by the National Assembly in February, now requires Senate approval. Further information is available in an announcement from the SECP: see here (pdf). The Bill, once enacted and in force, will replace the Companies Ordinance, 1984.

Update (1 June 2017) - the Bill has become law: see here.

Thursday, 4 May 2017

BCBS publishes twelfth update on Basel III implementation

The Basel Committee on Banking Supervision has published its twelfth update on the implementation of the Basel III regulatory reforms: see here (pdf). The update notes, amongst other things, that all of the 27 jurisdictions comprising the Basel Committee have final risk-based capital rulesLCR regulations and capital conservation buffers in force.

Wednesday, 3 May 2017

UK: FCA policy statement (and final rules) - remuneration in CRD IV firms

The Financial Conduct Authority has published a policy statement explaining the changes its has made to its Handbook in order to implement guidelines from the European Banking Authority on the implementation of the remuneration requirements in the Capital Requirements Directive IV: see here (pdf).

Tuesday, 2 May 2017

FSB publishes thematic peer review report of corporate governance

The Financial Stability Board has published the results of its thematic peer review of corporate governance, looking at the implementation of the G20/OECD Principles of Corporate Governance by FSB member jurisdictions: see here (pdf). The report makes twelve recommendations, including enhancing the effectiveness of whistle-blowing and the policies that protect whistle-blowers.

Monday, 1 May 2017

UK: Scotland: good college governance consultation paper

The Scottish Government has published Good College Governance, a consultation paper in which it seeks views on two of the recommendations made in the College Good Governance Task Group Report: see here (pdf).