To all those reading this I am David Gibbs; I am a Lecturer in Law at the University of East Anglia.

I created this blog as a general out-let of ideas for my research, as well as keeping those interested up-to-date on my research and general interests.

I completed my PhD thesis at the University of East Anglia in 2014. The thesis was recommended for the award of PhD with no corrections. My external examiner was Prof. Simon Deakin (Cambridge) and internal examiner was Prof. Morten Hviid.
My PhD research centred on directors' duties and company law. The thesis was titled 'Non-Executive Self-Interest: Fiduciary Duties and Corporate Governance'. It was a doctrinal and empirical study on whether self-interest was suitably controlled amongst non-executive directors.

My supervisors were Prof. Mathias Siems, Prof. Duncan Sheehan, Dr. Sara Connolly and Dr. Rob Heywood

All opinions of any existing or future blogpost are my own. They do not necessarily represent the views of any of my associated institutions.
ORCID 0000-0002-6596-8536

Thursday, 23 December 2010

Preliminary thoughts on BIS Companies Act 2006 Review

The Department of Business Innovation and Skill have published a two part review on the impact of the Companies Act 2006 (Vol 1 available here and Vol 2 here).

Here are some of my preliminary thoughts on the sections relatings to my work, namely derivative claims and conflicts of interest.

It is hard to come to terms with the notion that the law relating to conflicts of interest is clearer.

I agree that it is simplified and understandable for directors and may narrow or reduce those people in conflict, but it does not change what constitutes conflicting behaviour which was unclear before 2006. So, if you find yourself in court for conflict of interest the generality of the statutory statement may be of little assistance to a director. A restatement of the law which the Companies Act supposedly does will not rectify to problems relating to conflicts.

Furthermore directors and shareholders can interpret a general statement differently and may overlook a blatant conflict of interest whilst at the same time try and claim a breach of duty for a conflict when it clearly is
not. The biggest issue may be the interpretation of s175(4) that there will not be a conflict where it is not reasonably likely to give rise to a conflict

The part on derivative claims was a bit empty as well as assessing the CA 2006 effectiveness of the claim. It mentions people are aware they can bring a claim for a breach of duty but in reality case law is demonstrating it is all a bit of a false dawn for minority shareholders.

I for one am starting to believe the interim permission (prima facie) stage should be a significantly higher threshold as I don't see it serving as anything more than giving shareholders false hope. I portray the removal of the this stage in my forthcoming papers rather than increasing the level of the threshold but I still believe either way the stage is not serving a positive function.
These are my preliminary assessments and my last actions on my research for the year! Clocking off at 19:39 23rd Dec 2010. A Merry Christmas and a Happy New Year to all those reading this.

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