Forthcoming publication

Between February and March I was working on a double book review of Mayson French and Ryan on Company Law (D. French, S. Mayson and C Ryan 29th edition) and Company Law in Context: Text and Materials (D. Kershaw 2nd edition). It is due to be published towards the end of the year in issue 47(3) of the Law Teacher: The International Journal of Legal Education.

Law Commission on Fiduciary Duties of Investment Intermediaries

The Law Commission has published information about a new project on fiduciary duties of investment intermediaries. Consultation will take place in 2013 Oct. It can be seen here.

The statements they wish to address in relation to concern faced by stakeholders in the interpretation of fiduciary duties in this context are the following, which I will give a brief answer to (in brackets), but I must note I am not an expert on what an investment intermediary does.

it was not clear who in the investment chain was subject to fiduciary duties and what those duties were; (anyone with access to another's property or affairs for their benefit in a relationship based on trust and confidence. The duty owed by fiduciaries is the duty of loyalty meaning do not act with a conflict of interest in respect of the matters you agreed (whether expressly or through assumption) to be loyal)            

their fiduciary duties required them to maximise returns over a short-time scale, precluding consideration of long-term factors which might impact on company performance; (concern must be placed here whether it is right to classify this as a fiduciary duty to maximise returns, this is probably more accurately described as a function of an investment intermediary but not a fiduciary duty)        

     

their obligations were entirely defined and limited to their contractual obligations or required no more than a duty of care. (If they have access to another's property or affairs for their benefit then fiduciary duty of loyalty arises. That duty's standard is strict but its scope is circumscribed to the extent of what you agreed to be loyal to. Equity needs something to cling to. It cannot change the terms of a contract. The fiduciary must be loyaly and their interests must be subserviant to that of the principal/beneficiary on those matters agreed to be loyal to).

I have not blogged in a while. Hopefully now teaching is drawing to a close there will be some more regular updates. Hopefully I will return to this at a later date.

Higher Education Professional Development

So, new year and straight back in to the thick of it on the 2nd Jan for a 3-day course on teaching and learning in Higher Education as part of my postgraduate certificate.

As part of the course we did some microteaching which was filmed. The slides can be seen here and the video here. The session time was capped to 7 minutes and to a lay audience. My session was on identifying who a director is. As the slides show it only focused on de facto and de jure directors and did not go in to shadow or nominee directors. Its main focus was the definition given to director under the Companies Act 2006, s. 250 and the courts interpretation.

Unfortunately, the questions after the session were not recorded but demonstrated a benefit of face-to-face teaching of instant feedback. Being asked the question as to whether it matters if you call yourself a director as to identifying one, not only gave the opportunity to explain that point clearly but would allow for the session to be tweaked accordingly for the future. For those wondering, it does not matter whether an individual is called a director as to whether they are. What matters is whether they assumed responsibility for the company.

On my own session, I was able to reflect a little on myself. It was suggested that I engage more with the audience. However, from a lecture perspective I have always preferred to avoid direct student engagement with a big class or at least avoid verbal interaction in a lecture. I have always sought to seek student engagement in skills sessions and workshops where I allow for more diverse teaching styles such as group work or student led teaching, for example.

Moving on, ideally for lectures I would have a clicker to change slides and move a bit more so the technology slightly restricted movement in the session.

A note on my fellow presentees from the microteaching session, they were all excellently delivered, a great opportunity to learn something new and to view different teaching styles.

Publication in ICCLR

I have a new publication in the International Company and Commercial Law Review. It is just a short case note due to the slightly limited time I have available at the moment. Christmas was not long enough this year...

Anyway, the note was on the recent Court of Appeal decision in Chandler v Cape [2012] EWCA Civ 525 see here for an earlier blog post. The publication can be found under D Gibbs 'Company Law: Corporate Groups' [2013] 24(1) ICCLR N8.

I will be uploading a blog post next week on a recent presentation I gave at the Teaching and Learning module I have been on as part of my continuing professional development.

European Commission send Czech Republic and Latvia request to withdraw rules infringing freedom of establishment

This is not entirely about company law but interesting none the less to note one of the exceptions available to Member States in regards to freedom of establishment rules which prohibit it.

Under the Treaty of the Functioning of the European Union (TFEU) Chapter 2 Article 49 provides for Freedom of Establishment in the European Union (EU). It prohibits restrictions on nationals of the EU setting up companies (see Art 54), branches, agencies and subsidiaries in other Member States. It includes the right to take up and pursue activities as a self-employed person.

Article 51 does allow States to disregard this section though, 'so far as an given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority'.

The Czech Republic and Latvia had certain restrictions relating to notaries and argued that they had judicial powers bringing them within this exception. The EC maintain that despite this, their notaries do not have the power to rule on disputes. The Commission took the view that such participation in public authority did not justify their nationality requirement. See the note from the EU about this action as well as their main decisions from November here.  

Forthcoming publication

In amongst life as a 1st year academic I have managed to find a slither of time for a case comment on the Court of Appeal decision in Chandler v Cape plc [2012] EWCA Civ 525.

It is due out in January and will be published by the International Company and Commercial Law Review. The thurst of the article (spoiler alert) is to highlight that whilst the decision may be interesting and hold practical significance, it does not alter the legal landscape as it was based on a pre-existing concept of assumption of responsibility.

Updates and Developments in Regulatory Competition

Having not blogged in a few weeks I thought I should post something.

Teaching has started down at Hertfordshire and as expected every minute is being filled with meetings and class preparation. I am currently teaching on the LL.B in Company, Commercial and International Commercial alongside the LL.M in Company. For Company Law I have been made module organiser, albeit after the module guide went out to students so including areas such as regulatory competition are very much on an ad hoc basis at the moment.

In regards to regulatory competition a new case has emerged from the ECJ (Vale Costruzioni) over the last couple of months that effectively allowed a transfer of seat without restrictions using national transformation laws as a cross-border conversion. See here for overview before the case was decided. The decision can be seen here. Although I do not know too much of the exact details it seems the court has allowed an Italian company to use the Hungarian Transformation Act to transform itself in to a Hungarian company. It is quite a surprise that the ECJ reached this conclusion despite my own recent observations that the ECJ would be unlikely to depart easily from its stance on restricting movement due to shareholder and creditor protection and its own ability to establish rules on cross border transfers. However, having spoken recently to a professor and judge in Germany recently, Prof Ries, who is visiting currently at the University of Hertfordshire, he informs me that he has not heard of any instances of companies taking advantage of this new ruling. By any means it is certainly an interesting development.

As to the thesis.... The thesis is almost complete! Just an introduction and conclusion to brush up then the full draft has to be dealt with by my supervisors. With any luck it will all be done and dusted by February next year.