Should limited liability apply to protect shareholders from the claims of involuntary creditors of a company? Introduction:Business entities are formed under state legislature mainly to permit individuals to group together to invest capital for new ventures .
The main aim is to shield the investors from the liabilities of the business, so that their risk is limited by the amount of the capital investment. Thus the creditors in a business is limited to assets of the business and except in certain extreme cases, the creditor can not pursue any assets other than those of the business itself.The salient feature of a running a business in the form of a company is it is being recognized as a juristic person with its own legal rights and responsibilities and distinct from those of the individuals who constituted its members from time to time and is being created by the provisions of the law of the country. While Sir Edward Coke describes the corporation as “immortal, invisible and resting only in intendment and consideration of law and Black stone describes it as an “artificial person”.
The doctrine limited liability insulates the shareholders form the liability of the business. It is to be noted that the limited liability also insulates a corporation from the liability for the activities of its subsidiary companies. Corporate commitments inflicted in accordance with entity of law no longer pertained to the entire enterprise but limited only to the extent of assets of the constituent corporation involved in the litigation and the remainder of the enterprise getaway from liability . The main advantage of limited liability is to promote investment by inactive investors in risky business especially where investors are not participating in day to day affairs of a corporation.
Should limited liability apply to protect shareholders from the claims of involuntary creditors of a company? Every company has sets its rules in order to achieve its goals and plans. The shareholders of the company are protected by their laws from the claims of involuntary creditors of a company. That was why limited liability was created to conform for the safety of the shareholders. “Limited liability” is a liability which is restricted to an investor or partner’s assets.
Corporation’s shareholders or in a limited company cannot waste and squander additional money than their shares’ value if the business or corporations innings into arrears and liability since they are not directly accountable for the obligations of the company. This also can be link for partners in limited liability partnerships and the limited partners in a limited partnership. But there is an exception for this matter when an exceptional and distinctive condition of government arises. This kind of set up is totally different from general partnerships and sole proprietorships in which the partners or owners are having legal responsibility for business obligations and debts.
[1]We should also bear in mind that in spite of this fact that the liability of the shareholder is limited in its volume as a shareholder, the shareholder may personally be responsible for its own actions. An example for this scenario is the president -serves and happens as the main shareholder- of a diminutive business carelessly and neglectfully innings over somebody while on a company business, the president himself together with the company is still responsible for his own carelessness and slackness but the other shareholders of the company are not responsible for the carelessness of the president compared to a general partnership.The purpose for this study is to: (1) know the history of the limited liability and; (2) be aware of the Ultra Vires, Business Judgment Rule, De facto Corporation and Corporation by Estoppel, and Piercing the Corporate Veil of the limited liability and last is; (3) comprehend if limited liability should be applied to protect shareholders from the claims of involuntary creditors of a company.Courts are generous to permit creditors to reach the assets of the shareholders where limited liability provides nominal gains from enhanced liquidity and diversification, while creating a high probability that a firm will engage in socially excessive level of risk taking.
It is thus expected that the piercing of the veil by the Courts is more likely in situation of closed or small companies as compared to public companies and groups with company shareholders as compared to individual shareholders, involuntary creditors and in situations where companies are not funded adequately. It was also observed that the courts were reluctant to lift the veil on situations relating involuntary creditors and recent verdict in United States and Australia made in favor of involuntary creditors that tort victims were more likely to have the veil lifted in their favour. In UK, lifting of veil under tort situation is a rare affair .Lifting of veil so as to fix shareholders of a public company with personal liability is a non –existent in UK till date.
Thus limited liability protection differs from country to country and is based on interpretation of law and under given situation. This essay is mainly focusing its attention whether limited liability helps to protect the shareholders from the claims of torts and other claims filed by involuntary creditors in various angles.*Its History*The direct and proximate contextual to the 1866’s dilemmas was a publicity affluent which was started in 1863. This was made easy by Acts of 1856, 1858 and 1863 which gave a chance and long-drawn-out limited liability in every company of seven or more affiliates on easy and uncomplicated in registering.
Following this, there were 500 new and contemporary limited corporations that were listed in Britain in 1862.[2] After threeyears of existence, memberships’ growth was incredible; from 500 new companies, it was able to reached to 746, 967, and 992 for the time mentioned. In preceding soar, numerous numbers of the endorsements were erroneous and injudicious which a number of them are deceitful. But effortlessly obtainable and accessible credit continued the endorsements for a rarely long time.
The main resource of this credit was the latest occurrence of finance corporations-which agreed to take poorer safety measures compared to remaining money lenders in return for much higher tariffs.Wobbly and unstable endorsements consequently be continued by injections of money from these corporations but the whereabouts did not make for constancy and steadiness. The finance corporations-loaded with poor safety measures and incapable to make calls due to anxious shareholders-was extremely susceptible in a catastrophe and started to be unsuccessful in the initial months of 1866.The 1866’s catastrophe disclosed the reality of a philosophical disjointedness concerning thoughts and attitudes within Parliament and those in the extensive community.
However, Parliament desired to continue limited liability but several of the people involved desired to limit it. On the other hand, the principle’s critics were incompetent to resolve the illogicality concerning their suggested solutions and their dedication to free spirited philosophy. The Act of 1867 divulged that limited liability had turned out to be an enduring match of the corporate economy.*Limited Liability Company*L.
L.C. or known as Limited Liability Company is defined as “legal form of business offering limited liability to its owners. It is the same to a corporation and is frequently more supple and adaptable form of ownership which is appropriate for smaller corporations together with limited numbers of owners.
The Limited Liability Company has more advantages compared with its disadvantages. The advantages that we could get are: (1). There is no any obligation and condition of a yearly general meeting for shareholders but there is an exception for this statement because Minnesota and Tennessee don’t apply such statement;(2) There is no power’s loss to a board of directors even though a functional contract may give for concentration of management power in a similar body or board. (3) Corporations are continuing lawful and permissible business objects having lives which carry on beyond the illness or even death of their owners but it avoid solitary proprietor death or problematic business termination;(4) Corporations can raise capital through stock sales; (5) There are much less administrative paperwork and recordkeeping;(6)Pass through taxation [3](7) Limited liability which denotes that the Limited Liability Company’s owners-called as the members- are safeguarded from liability for acts and debts of the LLC;(8) It use default tax classification, profits taxed directly in terms of the member level not at the Limited Liability Company;(9) Check-the-box taxation.
An LLC can designate to be taxed as a partnership, corporation or S-corp, sole-proprietor, which give much flexibility ;( 10) Can be set up with just a natural involved; (11) Limited Liability Company’s membership interests can be allocated and the economic tariffs’ profits can be separated and allocated, which give the assignee with economic benefits of sharing of profits/losses without transferring the title to the membership tariff and ;( 12) Limited Liability Company’s in several states of United States of America are preserved as entities from their Members. There are many statutory business forms and of these are the Limited Liability Company and the Limited Liability Company. *Limited Liability Partnership*Limited liability partnership is a “procedure of type of business organization uniting elements of corporations and partnerships. In a Limited liability partnership, every partner has a type of limited liability which is same of the corporation’s shareholders.
Moreover, the partners-themselves- are entitled to administer the business personally-including several fields-and an altered level of tariff liability compared in a corporation. Limited liability partnerships are distinctive from limited partnerships not to a subsection of non-managing “limited partners”. Because of this, the limited liability partnership is more appropriate for corporations or companies where every investor desire to participate in a lively and energetic position in management. On the other hand, a number of states in United States of America joint the two types to invent “limited liability limited partnerships.
” When we say “limited liability limited partnership[4] is a newfangled type of Business Corporation. Similar from limited partnership, the limited liability limited partnership composes of one or more overall partners and one or more limited partners. The overall partners manage the limited liability limited partnership whereas characteristically the limited partners only have a monetary interest.[5] On the other hand, even though Limited liability partnership found in several business fields, the limited liability partnership is a well-known kind of organization amongst professionals specifically accountants, architects and lawyers.
Several states of United States of America-which include New York and California- limited liability partnerships, can only be shaped for such professional expenditure.”[6]*Limited Liability Company*Limited liability is an important characteristic of the corporate legal identity. This view was arrived at by the House of Lords in the renowned International Tin Council[7] case which was decided in 1989 after five weeks of argument.[1] The world wide adoption of limited liability concept in the legal systems of the industrialized world rests on relatively modern legislative enactments reflecting politico-economic values and not on fundamental jurisprudential concepts of the nature of the corporation as a legal unit .
English law was ambiguous on the liability of shareholders for corporate debt[2] But it was now settled that corporate debts were the debts of the corporate and not the debts of the shareholders. In earlier stage in UK, it was not clear as whether a creditor with an unsatisfied judgment against the corporation could implement the judgment against its shareholders and thereby inflict direct liability upon them.Direct Liability:Holdsworth declares that during 15th century, courts were holding that shareholders had no direct liability for corporate debts .Grover discovers that the principle of an absence of direct shareholders liability had become accepted as early as the end of the sixteenth century.
Thus, the charter of the East India Company granted in 1600 provided for limited liability. However, for a number of companies formed later, the charters either were silent or stipulated for unlimited liability for shareholders. Hobbes in 1684 referred unlimited liabilities in his writing. At the fag end of the 18th century, Kyd and Blackstone not only did not include limited liability among the traits of the corporation, they deemed it not important enough to mention at all.
[3]Up to late eighteenth century, the Crown, when chartering corporations, was giving some a provision for limited liability and others unlimited liability and in some others, no reference about liability was made at all. With passage of time, it became evident and accepted policy wherever the charter was silent; shareholders had the benefit of limited liability.Limited liability relieves a corporation from claims by the creditors who invest in it. In other words, the personal claim against a shareholder of a corporation by a creditor can not be made against the corporation where he was a share holder.
If an investor can not meet his obligations and goes bankrupt or personally suffers a judgment in a bodily injury case, it is critical that the investor’s personal judgment creditor not able to adhere the judgment out of the assets of the corporation in which the investor has an interest. The creditors can alternatively acquire the ownership of the investor’s interest and they can receive the proceeds of the sale of the investor’s interest. But in no way the creditors of the investor have no claim against the company beyond or in excess of , the shareholder’s interest and this process is also known as “ affirmative asset partitioning”.Likewise, if the corporation goes bankrupt, creditors can not sue the investors and recover judgments in excess of the equity each investor has in the corporation.
In other words, the investor can not loose more than what they have invested in the corporation and also known as “defensive asset partitioning” or limited liability. INDIRECT LIABILITY:When the charter so provide or a custom of assessments existed, corporations had the liberty to levy or access upon shareholders for additional capital contributions and this is known as power of levitation. Although this was a power of the corporation, equity assumed jurisdiction to turn it into a source of relief for creditors. In a land mark decision in 1671, Salmon v.
Hamborough Co , the house of lords held that creditors should obtain equitable relief to compel a corporation to exercise its power to levy the assessments necessary to pay unsatisfied corporate obligations.[4]However where charters specifically limited the corporate power to access, indirect liability through creditor actions in equity to compel levitations on shareholders was no longer possible. Counsel responded by including clauses in the charters proscribing assessment beyond the basic capital subscription there by shutting the doors to the imposition of indirect liability . Such was the English corporation law at the time of the Revolution and as on date, English company law or the law applicable to joint stock companies is a very different matter.
Finally, the Limited Liability act of 1855 and the Joint stock Companies Act of 1856 was adopted in British Parliament.*Under Limited Liability*Ultra ViresThe word “Ultra Vires” is came from a Latin phrase which plainly denotes “beyond the power”. Its opposite is known as “intra vires”. “Ultra Vires” is making use of lawful term in a numerous contexts.
These are: (1) in corporate law, ultra vires illustrates performances tried by a corporation which are beyond their scope of powers arranged and approved by the charter of the corporation-the laws sanctioning its foundation- or similar founding official paper. Performances tried by a corporation which are beyond their scopeof responsibility are void. But this is case to case basis especially in the case of non-profitcorporations which include municipal corporations-the said legal policy is dated. Most of the business corporations are chartered in order to permit them to carry out any legal business.
The policy continues to have some life amongst non-profit state-created corporation bodies or corporations founded for a particular intention like charities or universities; (2) under the constitutional law-specifically in United States of America and Canada- statutes bestow federal and state or provincial governments numerous powers. To go against those powers would be ultra vires; (3) In British constitutional law, ultra vires explains patents, decrees and the like performed under the prerogative powers of the Crown which go against statutes performed by the King-in-Parliament and; (4) In administrative law, an act be judicially reviewable ultra vires in a broad or narrow sense. Broad ultra vires operates if there is exploitation and misuse of power or a breakdown to work out a managerial freedom of choice.[8] Business Judgment RuleThe business judgment rule denotes to a case law-which the said concept originated from Corporations law whereby a court will reject to evaluate the performances of board of directors of a corporation in supervising the corporation except there is some accusation of management which (1) violates: (a.
1) duty of loyalty, (a.2) duty of good faith, [9]or(a.3) the director’s duty of care; or (2) that the directors’ judgments deficient a reasonable and logical basis requirement which is part of the duty of the director of good faith. As a result, the business verdict rule initiates an iron-clad beliefs and assumptions in favor of the Board of Directors of a corporation, releasing its members from probable liability for judgments that bring an outcome in harm to the corporation.
This would mean it happens so that a Board will not undergo writhe legal action simply because of the bad decision made. As the Delaware Supreme Court has stated “”will not substitute its own notions of what is or is not sound business judgment” (Aronson v. Lewis, 473 A.2d 805, 812 (Del.
1984)) if “the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.”(Sinclair Oil Corp. v. Levien, 280 A.
2d 717, 720 (Del. 1971). The justification for the policy is the recognition by courts Boards of Directors must be free to catch hold of lost without a continuous and persistent fear of lawsuits distressing their decision. The assumption upstretched by the Business Judgment Rule may be refuted by the complainant.
Characteristically, self-justifying behaviors which are: based on intimidation and extortion that are irrationally observed and recognized, not proportional to the observed intimidation, or stuff a management substitute down shareholder’s throats will effectively overthrow assumption of the business judgment rule.De Facto Corporation and Corporation by EstoppelThe terms “De facto corporation and corporation by estoppel” are applied by courts to explain conditions or situations in which a business corporation which unsuccessful toturn out a “de jure” corporation-which denotes corporations by law- will nevertheless protecting shareholders from liability.[10]*De Facto Corporation*There are many things or elements to be considered in order for a de facto corporation to be founded. The elements to be considered are: (1) the existence of incorporation’s statute which lays out several requirements under which lawful incorporation can be achieved; (2) There should be a good relationship attempt to conform to the decree by the envisioned corporations and; (3) An act must be made on the behalf of the corporation by its supposed agents or officers.
*Corporation by Estoppel*Moreover, the “Corporation by Estoppel” is used to contradict somebody who deals with a business assuming that it is a corporation, notwithstanding of whether there was a good relationship exertion by the business to incorporate. The person, himself, who does business with such an object, may far along be “estopped” from disputing which not a corporation in an intention to get hold of the incorporators’ assets. In the same sense, perpetrators who perform as a corporation will be “estopped” from refusing liability as corporation when litigated by a complainant who had depended on the corporation of the defendants when doling out with the perpetrator.Piercing the Corporate VeilThe corporate law concept piercing the corporate veil explains “ a lawful judgment where a corporation’s shareholder is directly liable for the corporation’s arrears and amount outstanding regardless of the general theory and belief that those people are insusceptible from suits in tort or contract that if not would only grip the corporation liable.
The other name for this policy is known as “disregarding the corporate entity”. Companies come to reality to give protection to their shareholders from subjective or direct liability for the arrears and sum unpaid of a corporation. In the 17th century, aforementioned from the origination of the limited liability corporation, some partner in a general partnership can be obligated to shoulder all the arrears and sum unpaid of the said corporation. As assets or funds are required to invest in the overall projects grew -with it the essential of augmenting funds- the investors were now hesitant and apprehensive to put their money into business since there is danger implicated in for all intents and purposes assuring the sum unpaid of the business entity.
In contemporary period, the solely large business entity which can lead to personal or direct liability for enormous sums of money is by acting as a “name” which regards for an enormous insurance underwriting concern. [11]In the same way, corporation’s directors and officers, same as other employees, are mostly not liable or obligated for the corporation’s losses. Similarly, the people involve would have a tendency to serve unwillingly as a director or officer if they, themselves, were obligated or liable for the whole amount of the losses of the corporation. Moreover, which regard to corporations that have sole shareholder, director and officer -usually functioned by sole person-courts of law have realized that individuals could possibly get away for their own delinquency and misbehavior through holding resources and wherewithal under the corporation’s name.
But compared with big corporation where there is no individual shareholder could probably get hold of management authority over the corporation which meticulously and directly held corporations are hypothetically representations of the inclination and determination of some shareholders. In history, corporations having ten or more shareholders are not similarly to be touched by piercing. Even though the courts will not directly held a shareholder responsible for his/her actions which are lawfully the corporation’s obligations-though the corporation has sole shareholder- it will frequently do so if handling only the corporation responsible would be totally unjust and unreasonable to the complainant and the actions of the shareholder were obviously destined and qualified to try in passing personal liability off to the corporation. But mostly, courts are hesitantly refuted the assumption of pierce the veil and limited liability.
The complainant must justify and show evidences that the corporation was made up to commit scam and deception or the complainant must present that the said incorporation was just a front of stiffness and which the corporation is certainly not holding appropriate business meetings or consultations to mete out or allocate profits as dividends. This will be the scenario when a certain corporation pebbledash lawful liability handovers its resources and wherewithal and business to other corporation having the same shareholders and management. This picturecan also be happened in a sole person corporation which is administered and supervised in a random manner. There are many factors for court to be considered before it will make legal actions towards the corporation.
These are: (1) unsuccessful to perceive and detect corporate formalities; (2) unable to give profits as a form of dividends; (3) exceptionally and completely undercapitalized the fraud is similarly; (4) combining of the resources and wherewithal of the shareholder and of the corporation; (5) dealing of the individual which regards to resources or assets of the said corporation as his/her own; (6) drawing off corporate coffers and capitals by a domineering and overbearing shareholders or shareholder; (7) other grounds that the court can find them related to the case; (8) assets or liabilities’ operation and management to deliberate and contemplate the assets and liabilities; (9) unable to look after and uphold arm’s length relationship with relative entities; (10) if the corporation is used as a “front” for domineering shareholder or shareholders personal or direct transactions and business;(11) deficiency of corporate records; (12) if it has non-functioning directors or officers and; (13) cover-up or distortion of members. However, there are disadvantages of not piercing the corporate veil. It is infrequently a difficulty and hindrance to company owners when the courts won’t lift the veil. [12]*Should limited liability apply to protect shareholders from the claims of involuntary creditors of a company?*Every corporation has two types of creditors namely voluntary and involuntary.
Banks, suppliers and other creditors are the voluntary creditors. Involuntary creditors are those who injured by purchase of defective products from the corporation or a third party who is having a claim against the corporation for the loss or injury inflicted on him and they do not infer in advance that a corporation they deal will injure them or they do not know which corporation will injure them and they have no way of “pricing the risk”.There is constant debate on whether the corporation should have limited liability i.e.
defensive asset partitioning with the respect to involuntary creditors. There is an argument that each investor should defer the claims of involuntary creditors in proportion to their equity interest in the corporation. In USA, many states have provided for the proportional liability. As measure to safeguard to the interest of the investors from such claims by involuntary creditors, some corporation insures against such risk.
In some cases, investors themselves insure for such claim.It is really an arduous task for the corporation to measure and precisely estimate the involuntary creditors risk as it magnitude is highly variable and difficult to predict. Investors need to construct an understanding of how involuntary creditor risk is measured and priced by corporations and how faults in that method can affect their investment. Hence it becomes necessary on the part of the corporation to apply proper accounting rules to estimate and price the involuntary risks which are contingent and uncertain as to amount and timing.
Corporate are creating reserves for meeting this contingency by deducting aggregate of all these risks from their current earnings and used to charge these reserves as and when there is a claim from involuntary creditors. Thus in practical , if the liability estimates are accurate , the cost of the involuntary creditor claim will be reflected in the financial results for the period in which the involuntary claim was incurred and thus the financial results for the latter period remain unaffected .But estimating the claims from involuntary creditors is always difficult as it is contingent and there is always possibility of undervaluing the risk involved or at times overvaluation of risk may be involved. Further, the application of the accounting principles for estimating the contingent liabilities is discretionary and there is a chance for abuse.
Certain management resort to under- reserve there by pushing the cost of liabilities into the future and overstate the current earnings and over-reserve there by reducing the current earnings and establish excess reserves which can be reversed when there is a necessary to improve earnings in future , a process which is referred as “ earnings management “.In Estate of Countryman v. Farmers Co-op , Ass’n , 679 N.W.
2nd 598 ( IOWA,2004) the Court sent to trial a company that was managing member of an LLC that was sued for the explosion of propane gas in a customer’s house. The management company was responsible for safety management.The manager’s neglect in running the LLC which has resulted in the explosion does not be protected by the concept of statutory limited liability. As limited liability does not give you the license to kill and in this case the truck driver was held responsible because the explosion was caused due to his negligence though the driver worked for an LLC that has a limited liability.
The Countryman court stressed that the LLC statue exonerated only those limited liabilities imposed “ merely by reason of being a member or manager “ and purposely rejected exculpation for a ‘member’s participation in tortuous conduct”. This case sounds the alarming note that courts are going to interpret limited liability more strictly in LLC’s. Armour stresses that the capital maintenance rules can be understood as supplying terms into bargains between creditors and shareholders. Armour further points out there would be no need for laws safeguarding the interests of voluntary creditors as their interest will be protected by the contract of loan.
The current provisions requiring public companies to be incorporated with a minimum capital are one mode that the law tries to of protect involuntary creditors who have possible tortuous action against a company from the use by limited liability companies of underhand risk assessment policies when executing hazardous activities. If the involuntary creditors are reluctant to compromise the terms on which credit is extended, shareholders may be able to reap income at their expenses by the premeditated undercapitalizing of a firm or its subsidiaries. In spirit, there is a risk of conscious re-juggling of subsidiaries and capital through the formation of subsidiaries with limited assets. Thus the loss generated from this activity is apportioned between all other assets.
Certain company avoids the risk from involuntary creditors by redistributing its assets to another subsidiary company.The current provisions of regulations are inadequate for breach of capital maintenance rules offers creditors no rights of direct action against the company and such interference can be possible only through a liquidator. If provisions are altered so as to give creditors a direct right to bring an action, this could act as a precursor to any forethought of mischief by the unscrupulous company.Unsecured creditors are at peril of some loss or sharing loss with tort creditors in the case of tort liabilities and tort risk is adequately internalized that the benefits of limited liability overshadows its cost to involuntary creditors.
(Ribstein,1991). Under US law, secured creditors have precedence over tort creditors (involuntary creditors). Specifying tort creditors with priority over all voluntary creditors would shift risk from involuntary creditors to voluntary creditors. (Buckley, 1986; Presser, 1992).
While involuntary tort claimants’ cannot spread their risk in the same way tort feasers can because their whole future wealth and earning power may be at risk , they can insure against their loss.( Leebron,1991, Mofsky,Meiners and Tollison ,1979) Limited liability is hypothetically invented to inspire, reassure and assist enterprisebut then again it has been disputed and discussed- by the libertarian viewpoint andassessment- that limited liability misrepresents and falsifies the free market by permitting the entrepreneur to externalize several dangers and jeopardizes and carries out them on society at large. Furthermore, there has been several interest and apprehension which had over structures good turn and approval large creditors who are in the status to confer and navigate safe and sound terms while small creditor’s arrears or amount standing are left indiscrete and unsafe. There have been several requests and summons to limit and put a ceiling on limited liability solitary to non-managing investors but nonetheless- from 2006- these have been fought and withstood in the United Kingdom.
The overall and universal lawful reply and reaction to such trepidations and interests has been to create directors liable for some or a few corruptions and fraudulences.[13] There is an indication and substantiation that stocks and dividends in public corporations would be at a difficulty and shortcoming if liability were limitless and unrestricted and the occurrence of partially paid shares in the 19th century gives the impression to substantiate and verify this matter. Moreover, in the 1950s there was a hale and hearty market in unlimited liability American Express dividends. In the United States, there have been contemporary recommendations and proposals that -at the same time that limited liability towards creditors is communally and collectively helpful, constructive, and advantageous in facilitating investment- the benefit, right, and dispensation ought not to continue and stretch out to liability in tort for personal injury or environmental disasters.
In a document entitled “A Modern Regulatory Framework for Company Law in Europe: A Consultative Document of the High Level Group of Company Law Experts” stated that “in 2001 of September, the European Commission established and instituted a Group of High Level Company Law Experts having a purpose and intention of commencing a conversation on the necessity and essential for the transformation and reconstruction of company law in Europe. In connection to this, the said Group was set a dual mandate and these are: (1) to tackle and concentrate on the affairs and undertakings enunciated in the previous year by the European Parliament in the course of the negotiation of the suggested take-over bids Directive which was the 13th Company Law Directive; and (2) to impart and take care of the Commission altogether with proposals and suggestions for a contemporary and up-to-date European company law framework. At the early part of the year, the said Group hand over and introduced its conclusions on the matters or concerns relatively to take-over bids. The mandate for the second part composes the following concerns which are: (1) the formation and operational of companies and groups of cooperatives, mutual enterprises and companies which include corporate governance; (2) the rights of the shareholders which include practical and effective general meetings and cross-border voting; (3) corporate rearrangement and mobility;(4) the probable necessity for new lawful forms and an example for this is a European Private company which would be specific relevance for SMEs; (5) the probable popularization and explanation of corporate guidelines and directions in light of the SLIM-report on the[14]Second Company second Law Directive of December 13, 1976 on the formation and assets and resources preservation and continuation of public limited liability corporations.
In assuming the said method, they may have lost their attention of what the Group has confidence in to be the initial intention of company law to give and make available a lawful framework for those who desire to take on business activities professionally and competently in a manner they think through to be the greatest matched in order to accomplish and achieve victory. Company law must initially have all make easy the running of well-organized, effectual and competitive business enterprises. This manner is not to take any notice that fortification of shareholders and creditors is an essential part of any company law. But then again, going onward the Group has confidence in the primary focus of the European Union must be to increase and carry out company law mechanisms which improve and augment the effectiveness and keenness of business across Europe.
Initial of the focus must be to eradicate or do away with complications and impediments for cross-border of business’ activities in Europe. The European Single market is becoming more authentic and real and business will have to turn out to be ready for action in the interior of the said market. For them to carry out such plan, it will have to be able to professionally and economically rearrange and redistribute and move across borders, become accustomed its assets and resources arrangements to changing necessities and bring together investors in several Member States. [15]In an article entitled “Charging Order Protected Entities (COPEs): Efficacy of Charging Order protection” and written by Jay D.
Adkisson explained that “business entities are invented and designed by state legislatures mostly to permit individuals to group unruffled to capitalize and participate in assets and resources for new business enterprise. The initial and most important constitutional and legislative goal of most entities is to protect the investors from legal responsibilities and accountabilities of the said business in order that their risk is restricted and inadequate by the amount of the assets and resources investment. Consequently, if the business has a creditor, the relief of the creditor is restricted to the resources and wherewithal of the business, with the exception of the intense circumstances, that the creditor cannot continue any resources and wherewithal other than those of the business itself. The Business’ liabilities are recognized and identified as “inside liabilities” and the creditors’ claims against the business are recognized as “inside creditors”.
On the condition that the entity is separate and different from its owners- is sufficiently capitalized- and is not expended to continue and disseminate a fraud, subsequently the entity must defend its investor-owners from internal liabilities and internal creditors. The exclusion for this is the general partnership. In general partnership, general partners themselves are held legally responsible and accountable for the liabilities and arrears of the partnership. In the same way, general partners of Limited Partnerships related entities are correspondingly legal responsible and accountable of the partnership.
[16] The reverse is where an investor-owner tries to defend partnership investor-owner’s personal creditors. The investor-owner’s creditors are recognized as “outside creditors” and the assertions giving rise to those creditors are similarly called as “outside liabilities”. In a constitutional and legislative viewpoint and assessment, the investor-owner’s creditors are dealt much distinctively compared to the business’ creditors itself. The difficult fact is those greatest state legislatures have no appeal to defend the interest of the debtor in a business entity from creditors.
On the other hand, if an investor-owner has arrears and amount overdue, in that case he/she must pay those arrears and amount due from of any kind non-exempt property is accessible and obtainable which include interests in partnerships and like entities and shares of stock. In a company, a creditor may just plainly put together the shares of the debtor’s stock to profit sell to the dividends, the right to view records and books, rights to take along imitative actions which contradicts errant corporate directors and officers and voting rights. The government or parliament is not worried and disturbed with meddling of corporate business when a creditor has affixed interest in stock since shareholders are two full steps disconnected and separated from business procedures and maneuvers. The shareholders vote for or choose set of directors, and then the directors elect officers and the officers manage and administer the business.
Granting a creditor to affix the corporation’s dividends solely circuitously influences the corporation in the directors’ election.[17]Another article entitled “The Concept of Limited Liability- Existing Law and Rationale” expressed that “it is a basic and essential rule and assumption of Australia corporate law which a company is a lawful entity break away from lawful individuals which became related and supplementary for its foundation and development or who are currently its members. For the greatest part, there is a ‘corporate veil’ protecting the members from the liabilities of the company. This independent entity assumption was originally pronounced and clarified by the House of Lord’s in Salomon v Salomon & Co Ltd (1879) AC 22, was elucidated and justified by Lord Summer in Gas Lighting Improvement Co Ltd v IRC (1923) Ac 723 at 740-1 as pursues:”[18]“Between the investor, who participates as a shareholder, and the undertaking carried on, the law interpose another person, real though artificial, the company itself, and the business carried on is the business of the company, and the capital employed is its capital and not in either case the business or the capital of the shareholders.
Assuming, of course, that the company is duly formed and is not a sham… the idea that it is mere machinery for affecting the purpose of the shareholders is a layman’s fallacy. It is a figure of speech, which cannot alter the legal aspects of the facts.”CONCLUSION:By merely forming LLC is not going to protect the assets of the company from the claims by the involuntary creditors. The key to the triumph of these companies is prudent construction and careful drafting that addresses the several potential avenues of creditor’s assault.
But such is the very nature of good – as opposed to cookie-cutter –asset protection planning. One other way for the LLC to escape from the involuntary creditors claim is to obtain charging order protected entities status .(COPEs) If structuring has been done correctly at the initial stages ,it is better to update the operating agreement of COPEs regularly to keep up with the discovery of new landmines. If the books and records are not updated, there is every chance for these entities to fall into despair.
Nowadays creditors become more organized and belligerent in attacking such weak LLC’s, it has become necessary on the part of such entities to update the records and books at regular intervals without fail. Drafting and operation of LLC are very crucial for these entities to maintain their legal separateness and to keep creditors and disgruntled members at bay. References 1 “Limited Liability”. Wikipedia, the free encyclopedia.
July 16, 2006. Http://en.wikipedia.org/wiki/Limited_liability[2] J.
Taylor. “Limited liability on trial: the commercial crisis of 1866 and its aftermath”. University of Kent. http://www.
ehs.org.uk/ehs/conference2003/assets/Taylor.doc[3] Limited Liability Company”.
Wikipedia, the free encyclopedia. July 26, 2006. http://en.wikipedia.
org/wiki/Limited_liability_company[4] “Limited Liability Partnership” Wikipedia, the free encyclopedia. July 17, 2006. http://en.wikipedia.
org/wiki/Limited_liability_partnership[5] “Limited Liability Limited Partnership”. Wikipedia, the free encyclopedia. April 12, 2006. http://en.
wikipedia.org/wiki/Limited_liability_limited_partnership[6] “Limited Liability Limited Partnership”. Wikipedia, the free encyclopedia. April 12, 2006.
http://en.wikipedia.org/wiki/Limited_liability_limited_partnership[7] Blumberg, Phillip I. The Multinational Challenge to Corporation Law: The Search for a New Corporate Personality.
New York: Oxford University Press, 1993.[8] “Ultra Vires” Wikipedia, the free encyclopedia. May 17, 2006. http://en.
wikipedia.org/wiki/Ultra_vires[9] “Business Judgment Rule”. Wikipedia, the free encyclopedia. April 30, 2006.
http://en.wikipedia.org/wiki/Business_judgment_rule[10] “De facto corporation and corporation by estoppel”. Wikipedia, the free encyclopedia.
May 2, 2006. http://en.wikipedia.org/wiki/De_facto_corporation_and_corporation_by_estoppel[11] “Piercing the Corporate Veil”.
Wikipedia, the free encyclopedia. July 12, 2006. http://en.wikipedia.
org/wiki/Piercing_the_corporate_veil[12] “Piercing the Corporate Veil”. Wikipedia, the free encyclopedia. July 12, 2006. http://en.
wikipedia.org/wiki/Piercing_the_corporate_veil[13] “Limited Liability”. Wikipedia, the free encyclopedia. July 16, 2006.
http://en.wikipedia.org/wiki/Limited_liability[14] “A Modern Regulatory Framework for Company Law in Europe: A Consultative Document of the High Level Group of Company Law experts”. http://ec.
europa.eu/internal_market/company/docs/modern/consult_en.pdf[15] “A Modern Regulatory Framework for Company Law in Europe: A Consultative Document of the High Level Group of Company Law experts”. http://ec.
europa.eu/internal_market/company/docs/modern/consult_en.pdf[16] Jay D. Adkisson.
“Charging Order Protected Entities (COPEs): Efficacy of Charging Order Protection.” April 2005. http://www.assetprotectionbook.
com/charging_orders_intro.htm[17] Jay D. Adkisson. “Charging Order Protected Entities (COPEs): Efficacy of Charging Order Protection.
” April 2005.http://www.assetprotectionbook.com/charging_orders_intro.
htm[18] “The Concept of Limited Liability-Existing Law and Rationale”. http://www.cabinet.nsw.
gov.au/hardie/T.pdf. [1] MacLaine Watson & Co V.
Department of trade and industry (1990) 2 A.C. 418.506.
(1989). 3 All E.R. 523 ,549 ( H.
L 1989) But See Lord Nourse ,dissenting in the Court of Appeal .J.H Rayer ( Mincing Lane Ltd ) V. Department of Trade and Industry & Others.
[2] B.HUNT, THE DEVELOPMENT OF THE BUSINESS CORPORATION IN ENGLAND, 1800-1867, passim (1936) Shannon, The coming of General Limited Liability, 2 J .ECON .HIST.
267 (1932).[3] See 3 W .HOLDSWORTH, A History of English Law, 484; 8d.at 203 (5th ed.
1973), citing Y.B 20 Hen, 6. Mich.pl.
19 (Fortescue) (the property of shareholders not subject to levy in execution against the corporation): L.Gower, supra at 26, T.Hobbes, LEVIATHAN 175 (M.Oakeshott ed .
1962).[4]Ch.Cas.204, 22 Eng .
Rep 763 (HL .1671). There is scholarly dispute on the exact significance of Salmon, Compare E.DOOD, and American Business until 186085 ,86,369, and (1954).
Jenkins , Skinning the Pantomime Horse: Two early cases on limited liability ,34 Cambridge L.J ,308, 312-21 , ( limited application) with C.COOKE ,supra , at 78-79,. 5.
Armour, J. (2000), ‘Share capital and creditor protection: efficient rules for a modern company law ‘Modern Law Review, 63: 355-378. 6: Ferran , E .(1990a) Company Law and Corporate finance , Oxford university press , Ferran , E(1999b) ‘ Creditors ‘ interest and “Core” “ Company Law ‘ , Company Lawyer.
7: DTI (1999) Modern Company Law for a Competitive Economy: The strategies Framework (London: HMSO). 8. Jensen Michael C, and Meckling, William H (1976) “Theory of the Firm: Managerial Behavior, Agency costs and ownership structure, 3 Journal of Financial Economics 305-310. 9.
Hellwig, Martin F. (1981) ‘Bankruptcy, Limited liability and the Modiglini –Miller Theorem – American Economic Review- 155-170. 10. Michael T.
K and Woywode, Michael J (1996), Entrepreneurs and the choice of Limited Liability, working papers no 129, John M.Olin program in Law and Economics, Stanford University Law School. 11.K.
Hicks , John R(1982) ‘ Limited Liability , the Pros and Cons , Limited Liability and the corporation , London and Canberra,(room Helm,11-12) 12. Alexander, Janet Cooper (1992) ,Unlimited Shareholder liability Through Procedural Lens , Harvard International Law Journal ,387-445. 13. Amsler , Christine E, Bartlett , Robin L and Bolton , Craig J (1981) , ‘Thoughts of Some British Economists on Early Limited Liability and Corporate Legislation , History of Political Economy , 774-793.
14. Carney, William J (1995) ‘Limited Liability Companies: Origin and Antecedents ‘, University of Colorado Law Review, 855-880.
