UK: BIS consultation - exceptions to the prohibition on corporate directors

Clause 84 of the Small Business, Enterprise and Employment Bill (currently before Parliament and scheduled for second reading in the House of Lords on 2 December) will insert a new provision into the Companies Act 2006 in order to provide that company directors must be natural persons, thereby prohibiting so-called corporate directors (i.e., directors that are companies). Exceptions to this general prohibition are possible and the power to set out such exceptions through secondary legislation is given to the Secretary of State in Clause 84. In this regard, the Department for Business, Innovation and Skills has published a consultation paper setting out its position on the circumstances in which the use of corporate directors should be permitted, including (for example) UK companies with shares admitted to trading on regulated markets: see here (pdf).

UK: The Financial Services (Banking Reform) Act 2013 (Commencement No. 7) Order 2014

The Financial Services (Banking Reform) Act 2013 (Commencement No. 7) Order 2014 was made on 26 November: see here or here (pdf). The Order brings into force on 31 December 2014 several provisions in the Financial Services (Banking Reform) Act 2013 including section 13 (preferential debts) and section 133(2)(a) (power of the FCA and PRA to make rules applying to parent undertakings).

Singapore: company representation in court proceedings

Judgment was given several days ago in Bulk Trading SA v Pevensey Pte Ltd [2014] SGHC 236. The case provided the High Court with its first opportunity to consider new rules which permit, at the court's discretion, a company to be represented in court proceedings by an authorised officer. In considering the operation of the new framework, the trial judge - Steven Chong J, the former attorney general - discussed the law in other jurisdictions, including the UK, Canada, Australia and New Zealand. He also set out the factors that he believed were relevant for the court in deciding whether to exercise its discretion.

Germany: a gender quota for the supervisory board - legislation due next month

It has been reported widely in the media that Germany's coalition government has agreed to introduce legislation next month that will require at least 30% of supervisory board positions at Germany's largest companies to be held by women: see, for example, here.

UK: Supreme Court - permission to appeal cases - court to hear implied term case

The Supreme Court has published the results of November's permission to appeal applications: see here (pdf). One of the cases that the court has agreed to hear - an appeal from [2014] EWCA Civ 603 - will give it the opportunity to consider implied terms and, in particular, whether a term should be implied in a lease enabling a lessee to get back that part of the advance payment of rent in respect of the period after the break date.

UK: PRA consults on new senior insurance managers regime

The Prudential Regulation Authority has published a consultation paper setting out its proposals for a new senior insurance managers regime (SIMR): see here (pdf). The PRA is proposing that the scope of the SIMR will be broadly aligned with the new senior managers regime for banks.

UK: New City Agenda report - culture in retail banking

New City Agenda has published A Report on the Culture of British Retail Banking: see here (pdf). The report notes that whilst all banks have some kind of culture change process underway, cultural change in major banks remains fragile. The report's over-arching conclusion is that it will take a generation to create a new culture in UK retail banks.

UK: PRA consults on redrafting of its Handbook

The Prudential Regulation Authority has published a consultation paper in which it sets out proposals to redraft certain modules within the PRA Handbook: see here. Included in the consultation are several draft supervisory statements, including one concerning internal governance: see here (pdf).

Norway: revised corporate governance code published

A copy, in English, of the revised Norwegian Corporate Governance Code has been published by the Norwegian Corporate Governance Board: see here (pdf). A copy of the Code, highlighting the amendments that have been, is available here (pdf).

UK: bank remuneration - a letter to the Governor and an Advocate General's opinion

The Chancellor, in a letter published yesterday and sent to the Governor of the Bank of England (Mark Carney), outlined his concerns regarding the growth in fixed elements of bank remuneration following the introduction of a bonus cap in Directive 2013/36/EU: see here (pdf). He explained that he would be asking the Fair and Effective Markets Review to consider the implications of the move towards increased levels of fixed remuneration.

The Chancellor also stated that the Government had decided not to pursue its case (reference C-507/13) before the Court of Justice of the European Union challenging the validity of the bonus cap. This decision follows the publication yesterday of the opinion of First Advocate General Jääskinen, in which he advised the court to reject all of the UK's pleas and to dismiss the action: see here. A summary of the opinion is available here (pdf).

UK: The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2014

The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2014 were laid before Parliament yesterday and come into force next month on 15 December: see here or here (pdf). The purpose of the Regulations is to extend the prohibition on market manipulation in section 118(8) of the Financial Services and Markets Act 2000 until the new civil regime on market abuse under Regulation EU No 596/2014 takes effect on 3 July 2016. Further information is available in the accompanying explanatory memorandum: see here (pdf).

UK: The 'over-development' of board committees - a view from Martin Taylor

Martin Taylor, an external member of the Financial Policy Committee, delivered a speech yesterday at the Oliver Wyman Institute annual conference: see here (pdf). He used part of his speech to reflect on the governance of banks and, in particular, the role of board committees. He raised some serious concerns about the effectiveness of the board and wider governance framework. To quote directly:

I sense that one of the solutions we have developed to address the thorny problems of corporate governance has turned into a large, looming, silent problem itself. I refer to the over-development of board committees, and – as a consequence – the reduced space for boards as a whole to operate in. (This observation, by the way, goes well beyond the banking sector, though the phenomenon may be most acute there). Now committees are self-evidently a good thing...

These days, of course, boards have committees to cover not only audit but also remuneration, risk, nominations, social responsibility, and in some cases capital allocation and many other matters. The committees are subordinate to the main board – powers are delegated to them. They make the board more efficient in the sense that they allow it to take on a greater workload – indeed it’s hard to imagine how a board today might function without a slew of committees, never mind what the governance rules require. But I believe this efficiency has been bought at a high price in reduced board cohesion. It has got harder – perhaps because some organisations are ungovernably large – for boards to see any sort of big picture. Unable to encompass the blurred outlines of a sometimes ugly reality, individuals take refuge in trivial detail.

Two powerful effects seem to be in play – entirely understandable, quite subtle, and in the end perverse. First, a director who is not on the remuneration committee or the audit committee thanks her lucky stars and removes these crucial topics from her personal list of concerns. Second, the committees themselves take on a fundamentally technical aspect, where the members, drawing heavily on consulting advice and inter-firm comparisons, tend to behave more as experts, and less as broadly responsible directors. In the end the committees usurp the power of the board – after all, they perform three quarters of the board’s role – but they do not really behave like boards.

Canada: contracts and the 'organising principle of good faith'

The Supreme Court gave judgment several days ago in Bhasin v Hrynew, 2014 SCC 71, one of the most important contract law cases of recent years and one that will be of interest internationally. Cromwell J delivered the judgment of the court and held that: [1] there was a general organising principle of good faith underlying many facets of contract law; and [2] it was appropriate to recognise a new common law duty, a manifestation of the general organising principle and applying to all contracts: a duty of honest performance, requiring the parties to be honest with each other in relation to the performance of their contractual obligations.

This new duty, Cromwell J stressed, was a simple requirement not to lie or mislead the other party about one's contractual performance. It did not impose a duty of loyalty or of disclosure, nor did it require one party to forego the advantages flowing from the contract.

OECD Principles of Corporate Governance - revised edition published for public comment

The OECD has published for public comment a revised edition of its Principles of Corporate Governance: see here (pdf). Further information, including how to respond to the consultation, is available here.

Pakistan: a legal framework for LLPs - SECP publishes concept paper

The Securities and Exchange Commission has published a concept paper setting out a proposed framework for the introduction of limited liability partnerships: see here (pdf).

UK: Extending the Senior Managers and Certification Regime to UK branches of foreign banks

HM Treasury is seeking views on a draft Order the purpose of which is to extend the Senior Managers and Certification Regimes, the framework for which is set out in Part 4 of the Financial Services (Banking Reform) Act 2013, to UK branches of foreign banks: see here. Further information about the new regimes is available here.

UK: Takeover Code - miscellaneous changes and a new edition for January 1, 2015

The Code Committee of the Takeover Panel has published a response statement in respect of its consultation earlier this year on miscellaneous changes to the Takeover Code: see here (pdf). A new edition of the Code will come into force on January 1, 2015, reflecting the amendments contained in Instrument 2014/2: see here (pdf). Most of the amendments proposed in the consultation paper are being introduced.

UK: ICAEW proposes a 'framework code' for corporate governance

The ICAEW has published the fifth and final paper in its thought leadership series on corporate governance: see here (pdf). In the paper, the ICAEW sets out the case for what it calls a 'framework code': a set of fundamental principles the purpose of which is to promote a good culture of corporate governance across society and within companies. According to the ICAEW, a framework code:

"... would apply to everyone in corporate governance [and] would typically include directors, shareholders, auditors, and remuneration and recruitment consultants. Where specific codes already exist, they should be tested against the framework code. A framework code would also cover all intermediaries in the investment chain, such as proxy agents, as well as other types of finance providers such as bondholders and lenders, the media, professional bodies, NGOs, governments and regulators in so far as their actions affect corporate governance at individual companies or more widely..".

UK: FRC consults on revised interim financial reporting guidance

The Financial Reporting Council has published an exposure draft - FRED56, Draft FRS104 Interim Financial Reporting - the purpose of which is to revise the FRC's existing guidance on interim financial reporting to ensure consistency with the new UK and Irish GAAP (FRS102): see here (pdf).

New Zealand: FMA consults on revised handbook on corporate governance principles and guidelines

The Financial Markets Authority has published for consultation a revised edition of its handbook Corporate Governance in New Zealand - Principles and Guidelines: see here (pdf). Information on how to provide feedback is available here. The handbook was first published in 2004 by the Securities Commission and is a reference guide to help directors and their advisers decide how best to apply the nine key corporate governance principles.

Note: on 1 May 2011 the Securities Commission was replaced by the FMA (see the Financial Markets Authority Act 2011).

UK/Bermuda: JCPC judgments - insolvency law - jurisdiction issues and assisting a foreign liquidation

Two of the judgments given yesterday by the Judicial Committee of the Privy Council (in concurrent appeals from the Court of Appeal of Bermuda) concerned insolvency law: PricewaterhouseCoopers v Saad Investments Company Ltd (Bermuda) [2014] UKPC 35 and Singularis Holdings Ltd v PricewaterhouseCoopers (Bermuda) [2014] UKPC 36. A summary for each decision is available: see, respectively, here (pdf) and here (pdf).

In the first case, the committee considered, amongst other things, issues of jurisdiction in respect of the winding-up of a company incorporated in the Cayman Islands. In the latter case, the court considered the power of the Bermudan court at common law to assist a foreign liquidation.

IFSB publishes two new exposure drafts

Two new exposure drafts have been published by the Islamic Financial Services Board for public comment: [1] ED17, Standard on Core Principles for Islamic Finance Regulation (Banking Segment) [see: English (pdf) | Arabic (pdf) ] and [2] ED of GN6, Guidance Note on Quantitative Measures for Liquidity Risk Management in Institutions Offering Islamic Financial Services [see: English (pdf) | Arabic (pdf) ].

UK: Small Business, Enterprise and Employment Bill - an update

The Small Business, Enterprise and Employment Bill 2014-15 completed Committee stage in the House of Commons last week: see here. A copy of the Bill, as it left Committee for the Report stage next week, is available here (pdf).

The Bill contains, amongst other things, changes to company filing requirements; the framework for the new register of significant control; the requirement for all company directors to be natural persons (although the Bill provides that the Secretary of State may, through regulations, provide that a person who is not a natural person may be appointed a director); and provisions to apply the general duties of directors in the Companies Act 2006 to shadow directors.

Australia: insolvency law reform - draft Bill published for consultation

Proposals to reform the law of personal and corporate insolvency have been published by the Treasury and are contained in a draft of the Insolvency Law Reform Bill 2014: see here (pdf). Accompanying the Bill is explanatory material (here, pdf) and a proposal paper in respect of insolvency practice rules (here, pdf). Further information about taking part in the consultation is available here.

Note (11 November 2014): the original link for the proposal paper was wrong but has now been corrected. Apologies.

UK: DTR change and FCA policy statement - removing the requirement to publish interim management statements

The Disclosure Rules and Transparency Rules (DTR) have been amended to remove, from 7 November 2014, the requirement for interim management statements to be published by issuers of shares admitted to trading on a regulated market where the UK acts as home Member State and the DTRs apply.

Further information is available in the policy statement, Removing the Transparency Directive’s requirement to publish interim management statements, that was published last Friday by the Financial Conduct Authority: see here (pdf). The change to the DTR was made by the Disclosure and Transparency Rules (Interim Management Statements) (Amendment) Instrument 2014, a copy of which will be available here soon.

UK: England and Wales: service of claim on an overseas company

Judgment was delivered yesterday in Teekay Tankers Ltd v STX Offshore & Shipping Co [2014] EWHC 3612 (Comm). The case involved a challenge by STX (an overseas company) regarding the jurisdiction of the English court to hear a claim for damages brought against it by Teekay. One of the arguments made, but rejected by the trial judge, was that the service of the Claim Form, which had been effected on STX's registered UK establishment, was ineffective.

In reaching this view, the trial judge considered Regulation 7 of the Overseas Companies Regulations 2009 (No. 1801), which sets out what information must be provided in respect of an overseas company's registered establishment, including the "... name and service address of every person resident in the United Kingdom authorised to accept service of documents on behalf of the company in respect of the establishment...". The judge held that the words "in respect of the establishment" referred to the person and not to the documents: in other words, the company was required to register the details of each person who, in respect of the establishment, was authorised to accept service of documents on behalf of the company.

UK: CMA to undertake retail banking market investigation

The Competition and Markets Authority has confirmed, following a provisional decision in July this year, that it will undertake an in-depth market investigation into the personal current account and SME retail banking sectors: see here.

UK: women on boards - progress following the 2012 corporate governance code

The School of Management at Cranfield University has published Women on Boards - Progress following the 2012 Corporate Governance Code: see here (pdf). The report notes that since the publication of the Davies Report in March 2011, the percentage of directorships held by women on FTSE100 boards has increased by 82% to 22.8%, and the percentage held on FTSE250 boards has increased by 124% to 17.5%. The report notes that if the appointment of women to FTSE100 board positions continues at the current rate, Lord Davies' target of 25% of board positions being held by women will be met in 2015. The target is unlikely to be met in respect of FTSE250 boards unless there is an increase in the proportion of new appointments being taken up by women.

Gibraltar: new company law framework comes into force

The new company law framework for Gibraltar - one of the British overseas territories - came into force on 1 November. The framework is contained in the Companies Act 2014, a copy of which is available here (pdf). This copy does not show the amendments made by the Companies (Amendment) Act 2014 (here, pdf) which correct various typographical errors and omissions. In addition to the company law framework, the 2014 Act also contains provisions concerning liquidation.

Subsidiary legislation has been made under the 2014 Act and includes the following: the Companies (Certification of documents) Rules 2014 (here, pdf), the Companies (Forms) Regulations 2014 (here, pdf) and the Companies (Model Memoranda and Articles) Regulations 2014 (here, pdf).

Europe: Single Supervisory Mechanism comes into force today

The Single Supervisory Mechanism, part of the Banking Union, came into force today. The European Central Bank is now responsible for supervision of banks within the Eurozone, working with authorities in the participating countries, although it will only directly supervise the largest institutions. Further information is available on the new supervision website created by the ECB: see here. A guide to banking supervision is available here (pdf).

UK: England and Wales: company directors - no implied duty to deliver up documents on termination

Judgment was given last Friday in Eurasian Natural Resources Corporation Ltd v Judge [2014] EWHC 3556 (QB). The case concerned an application by Sir Paul Judge, a former director of ENRC, for summary judgment of, and/or strike out, of several claims made against him by ENRC in which various breaches of duty were alleged. Sir Paul's application was rejected by the trial judge (Mrs Justice Swift) in respect of all the claims except for one: the claim based on a purported term (whether implied in contract, or as part of his fiduciary duties) requiring the delivery up within a reasonable time (or on demand) of all hard copy documents belonging to ENRC and any other documents, whether hard copy or in electronic format, containing confidential information and which had been provided for the purposes of performing his duties as director. In rejecting the existence of this duty, Mrs Justice Swift observed (para. [73]):

I can see no grounds for finding that [Sir Paul] was subject to an implied term requiring delivery up of the confidential documents after termination of his appointment. Had it been the "obvious but unexpressed intention of the parties", one would have expected it to be incorporated into [Sir Paul's] contract, as was done in Brandeaux. Moreover, I have been shown no legal authority, Code of Practice, Guidance or other evidence that would suggest that such a requirement is the norm for directorships. I can well understand that there would be difficulties in complying with such a duty, especially for those individuals who take on multiple directorships. The difficulty is particularly acute where, as here, company documents are sent to a number of email addresses, some personal to the director and others maintained by other private and publicly listed companies with which the director is associated. It is difficult to see how 'business efficacy" would be achieved by an implied term to deliver up. It would potentially involve a considerable amount of work for those subject to it - to very little purpose."

UK: insolvency and the payment of rent - Supreme Court declines to hear appeal

The Supreme Court has announced that it has declined to hear an appeal from the Court of Appeal's decision in Pillar Denton Ltd v Jervis [2014] EWCA Civ 180: see here. A summary of the Court of Appeal decision, provided by the ICLR, is available here; the headnote of this summary reads:

In the context of insolvency, where rent was payable in advance the office holder should make payments at the rate of the rent for the duration of any period during which he retained possession of the demised property for the benefit of the winding up or administration. The rent would be treated as accruing from day to day. Those payments were payable as expenses of the winding up or administration. The duration of the period was a question of fact and was not determined merely by reference to which rent days occurred before, during or after that period."