The Sarbanes-Oxley Act of 2002 (“SOA”) raised the bar with regard to, among other things, corporate governance, internal controls and executive responsibility. While SOA’s provisions apply primarily to public companies, private companies should become familiar with SOA for two reasons: First, portions of SOA do, in fact, apply to private companies – such as whistleblower protection and document retention provisions ...
Obtaining a Receiving Order by a Single Creditor Introduction Under s. 43(1) of the Bankruptcy and Insolvency Act, one or more creditors may file a Petition for a Receiving Order if: 1.the debt owing to the petitioning creditor or creditors amounts to $1,000; and 2.if the debtor has committed an act of bankruptcy within six months next preceding the filing of the petition ...
Secretary of State for Trade and Industry v (i) Christopher McKinley Swan (ii) Vuchuru Sadhana Reddy (iii) Brian Christopher Ritchie (iv) Brian Samuel North (v) Ian Stewart, [2005] EWHC603(CH) In this English decision the High Court held that the directors of the parent company should have known that its subsidiary companies had been involved in cheque kiting (a process designed to generate fictitious funds through the transfer of cheques between the bank account of two groups of companies) a
National Westminster Bank plc v Spectrum Plus Limited and Others [2005] UKHL 41 Overruling the 25-year old judgement in Siebe Gorman & Co. Limited v Barclays Bank Limited [1979 2 Lloyd’s LR142], the House of Lords has held that a charge over book debts where the chargor is free to draw on the account into which proceeds of such book debts are paid, creates a floating charge, rather than a fixed charge ...
New legislation implementing the EU Market Abuse Directive (Directive 2003/6/EC) came into effect in Ireland and a number of other EU Member States last July. The legislation has brought about important changes for all companies (Irish or foreign) whose shares are traded on the Official List of the Irish Stock Exchange (ISE), as well as their directors, senior management and advisers ...
In the Matter of Flightlease Ireland Limited (In Voluntary Liquidation) and in the Matter of the Companies Acts 1963 to 2003 and in the Matter of an Application for Directions Pursuant to Section 280 of the Companies Act 1963, unreported High Court, 27 July 2005 Background: Flightlease Ireland Limited (Flightlease), a Swissair holding company, was declared insolvent, and an arrangement was put in place with Societe d’Explotiation OAM Air Liberte (Air Lib) whereby Air Lib’s holding company wou
This Newsletter approaches several issues, in a general and simple manner that the format requires, which we consider may be of interest to businessmen and companies, with the purpose to inform them or even to challenge them to new forms of organisation and development of their businesses ...
Imagine you are a seasoned trial lawyer at a large, downtown firm. Following a successful “Beauty Contest” at the New York headquarters of Telco Corporation—a FORTUNE 500 telecommunications company—you are given the opportunity to represent Telco in future commercial disputes. To prepare, you begin to research Telco Corporation so that you are familiar with its management, core business, financials, and other issues potentially affecting future litigation ...
Privacy notices are the windows to how organizations collect, use, share, and protect the information that pertains to individuals. As information processes have become more complex, privacy notices have become very long, mirroring the complexity. The effect has been to obscure the content that individuals need to know when making judgments about with whom they will do business. This has been an impediment to on-line commerce ...
Businesses in the UK are often willing to spend substantial sums of money on acquiring robust protection for their patents, trade marks and other intellectual property. Assets such as these help to set apart one business from its competitors. However, businesses have traditionally been less inclined to spend money on taking court action against competitors that infringe their intellectual property ...
A new regime for prospectus and registration exemptions for private placements is now in effect in Quebec. It was developed by the Canadian Securities Administrators (“CSA”) and affects both private and public companies. In Quebec, the new regime has been implemented in the form of a regulation (“Regulation 45-106”), which has brought about significant changes to both prospectus and registration exemptions under the Securities Act (Quebec) (the “Act”) ...
Infiniteland Limited v Artisan Contracting [2005] EWCA Civ 758 This English case highlights some vital principles to be considered when drafting share purchase agreements, carrying out and reviewing due diligence and disclosing against warranties ...
Hidden Ireland Heritage Holidays Ltd. (t/a The Hidden Ireland Association) v Indigo Services Ltd. and Colclough and Gardner, Supreme Court, 7th June 2005 Facts: The plaintiff’s business consisted of booking country homes for its members. The second defendant, Colcough, acted as secretary to the plaintiff from 1986 to 1996. The plaintiff’s principal claim was that the second defendant diverted business to his own competing business with the assistance of the first defendant, Indigo Services ...
Securitization involves the separation of the credit risk of one or more assets from the bankruptcy and credit risks of the owner of those assets (hereinafter, the “Originator”)1 and the issuance and sale of securities backed by the cash flow from those assets. The proceeds of the sale of the securities are then used for the purchase of the assets from the Originator ...
One of the functions of Companies House is to make information filed with it available to the public. Staff at Companies House do not question the validity or accuracy of the documents filed and this combined with the ability to freely obtain company details from Companies House can lead to potential fraudsters "stealing" or hijacking a company's identity. Such a fraud took place in 2004 when Companies House forms were, without the company in question's knowledge, lodged by X, a fraudster ...
In the Official Gazette of the Federation dated June 16, a Decree was published through which several provisions of the Industrial Property Law are amended and added. The object of these modifications is the issuance of a declaration of protection of well-known and famous trademarks in our country. 1 ...
GoodCorporation, the standards organisation for responsible business practice, today officially announced the launch of its service in Ireland. The first organisation of its kind to operate in Ireland, GoodCorporation audits companies for corporate social responsibility practices and provides benchmarking against which member companies can measure their performance ...
The Companies (Amendment) Ordinance 2004 (the “Amendment Ordinance”) introduces, amongst other things, major relaxations to the prospectus regime in Hong Kong to facilitate market development. This bulletin summarises some of these changes brought by the Amendment Ordinance (The changes regarding prospectuses brought by the Amendment Ordinance as summarised in this bulletin came into operation on 3 December, 2004) ...
The SFC has recently settled a number of disciplinary cases on the basis of payment by the persons under investigations without admission of liabilities. Below are some examples of the settlement cases. SFC Withdrew Decision to Suspend Licence of a Licensed Representative The licence of a licensed representative was suspended by the SFC for six months by reason of his use of placing schemes to meet the placing requirements of the Listing Rules ...
On 30 June 2005, the Hong Kong Monetary Authority (“HKMA”) finalised the self-assessment framework on AML compliance. The self-assessment framework has been introduced for the purposes of facilitating the assessment by authorised institutions’ (“AIs”) of their compliance with the regulatory requirements on AML and to supplement the HKMA’s on-site examinations ...
On 30 June 2005, the House of Lords delivered its judgment in National Westminster Bank plc v. Spectrum Plus Limited & others [2005] UKHL 41. The case has resolved a controversial legal issue concerning the distinction between a fixed charge and a floating charge. Fixed Charges and Floating Charges It may be helpful first to describe the basic difference between the operation of a fixed charge and that of a floating charge ...
The SFC has adopted a split approach in dealing with UCITS III funds. For funds which will adopt enhanced use of derivatives and make changes to their investment policies or objectives in migrating to UCITS III, the SFC requires: • a notice to existing holders explaining the proposed changes and confirmation from the fund or its manager that the home regulator has approved the final version of this notice ...
Under Part XV of the Securities & Futures Ordinance (SFO), where a company has an interest (or a short position) in Hong Kong listed shares, its holding company is deemed to have that interest; this attribution is carried the whole way up a corporate chain to the ultimate holding company. This imposes onerous monitoring requirements on financial services groups ...
David Hughes v Seamus Duffy and Eugene Hanratty, 19 April 2005, High Court Facts: This case was taken under Section 150 of the Companies Act 1990, by the Official Liquidator of the Supreme Oil Company Limited. Section 150 provides for a prohibition or restriction of persons acting as company directors for a period of five years. The respondents sought to have the application dismissed or refused by reason of the delay in bringing the application ...
