South Africa: prescription and the nature of derivative claims

The Supreme Court of Appeal gave judgment at the end of April in Off-Beat Holiday Club v Sanbonani Holiday Spa (20231/2014) [2016] ZASCA 62: see here, here (rtf) or here (pdf). The case is important (and interesting) because of its discussion of the nature of derivative claims under section 266 ("Initiation of proceedings on behalf of company by a member") of the Companies Act 61 of 1973 (now section 165 of the Companies Act 71 of 2008) and, in particular, whether such claims are subject to the Prescription Act 68 of 1969.

UK: Scotland: Higher Education Governance (Scotland) Act 2016

A copy of the Higher Education Governance (Scotland) Act 2016, which was passed by the Scottish Parliament in March and received Royal Assent in April, has been published: see here or here (pdf). The Act contains, amongst other things, provisions about the composition of, and appointments to, the governing bodies of higher education institutions in Scotland. The Scottish Government has prepared explanatory notes to accompany the Act: see here or here (pdf).

UK: Scotland: Sheriff Court considers scope of relief for unfair prejudice

A decision of Sheriff S G Collins QC from last year has recently been reported on the Scottish Courts and Tribunals Service website: see [2016] SC FOR 29. The case concerned a shareholder's petition for relief in respect of alleged unfairly prejudicial conduct under section 994 of the Companies Act 2006. With reference to the English authorities Allmark v Burham [2006] BCLC 437 and Atlasview Ltd v Brightview Ltd [2004] BCLC 191, the Sheriff held that an order for payment was one of the remedies available under section 996, noting that the section provided the "widest possible discretion to grant a remedy where unfair prejudice has been established" (para. [23]).

Ireland: publication of the Duffy-Cahill report

The Duffy-Cahill Report - or, to use its full title, the Expert Examination and Review of Laws on the Protection of Employee Interests when Assets are Separated from the Operating Entity - was published last week by the Department for Jobs, Enterprise and Innovation: see here (pdf). The report was commissioned following the insolvency of a well-known employer - the Clerys Department Store on O'Connell Street in Dublin - and the much publicised job losses.

Prior to the insolvency, the business had been restructured such that ownership of an important property asset and the business operations were separated into two different entities. The monies owing to the employees were not paid, an apparent result - the Report notes - of the transfer of the asset. The transaction that produced this result may have been lawful, but the Report's authors state that "it is difficult to avoid the conclusion that it would be preferable if it were not" (para. 1.10).  A number of employment law reforms are proposed and suggestions are also made as to how certain provisions in the Companies Act 2014 might be more widely used in the protection of employees' interests.

Netherlands: an update on the governance code for companies adopting a single tier board structure

The Dutch Corporate Governance Code Monitoring Committee announced earlier this year that it would produce a version of the Dutch Corporate Governance Code - a new edition of which is in preparation - for companies adopting a single tier board structure: see here. The option of having a single board was introduced several years ago. The Committee's intention was that the single board version would be the subject of consultation and published as an appendix alongside the main Code, which is written from the perspective of companies with a two tier board structure. The Committee has changed its plan: in an announcement published last week - available here - it says that it will delay consultation on the single tier version of the Code until it has reviewed the comments received in respect of the new edition of the main Code.