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Notes ACCA Paper F4 (GLO) Corporate and Business Law For exams in 2013

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

Contents

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About ExPress Notes

3

1.

Different Legal Systems

7

2.

International Organisations

11

3.

International Commercial Arbitration

16

4.

Contracts for International Sale of Goods

18

5.

Agency

24

6.

Partnerships

27

7.

Company Formation and Financing

30

8.

Company Administration

39

9.

Company Liquidation

47

10.

Fraudulent Behaviour

52

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

START About ExPress Notes We are very pleased that you have downloaded a copy of our ExPress notes for this paper. We expect that you are keen to get on with the job in hand, so we will keep the introduction brief. First, we would like to draw your attention to the terms and conditions of usage. It’s a condition of printing these notes that you agree to the terms and conditions of usage. These are available to view at www.theexpgroup.com. Essentially, we want to help people get through their exams. If you are a student for the ACCA exams and you are using these notes for yourself only, you will have no problems complying with our fair use policy. You will however need to get our written permission in advance if you want to use these notes as part of a training programme that you are delivering. WARNING! These notes are not designed to cover everything in the syllabus! They are designed to help you assimilate and understand the most important areas for the exam as quickly as possible. If you study from these notes only, you will not have covered everything that is in the ACCA syllabus and study guide for this paper. Components of an effective study system On ExP classroom courses, we provide people with the following learning materials: • • • •

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

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ACCA F4 (GLO) Corporate and Business Law

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© 2013 The ExP Group. Individuals may reproduce this material if it is for their own private study use only. Reproduction by any means for any other purpose is prohibited. These course materials are for educational purposes only and so are necessarily simplified and summarised. Always obtain expert advice on any specific issue. Refer to our full terms and conditions of use. No liability for damage arising from use of these notes will be accepted by the ExP Group.

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ACCA F4 (GLO) Corporate and Business Law

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

Chapter 1

Different Legal Systems

START The Big Picture Exam questions in this area tend to be of the pure knowledge type often requiring a compare and contrast type approach. Although you are doing the global variant of the paper, it is perhaps worth bearing in mind that your examiner is also the examiner for the UK variant and is of course himself UK based. In the past, therefore, more marks have tended to be allocated to the UK details. The three main systems which you need to be aware of are: 1. Common Law eg. UK 2. Civil Law eg. France 3. Sharia Law eg. Iran Over the years, a popular question area has been to consider the role of judges under the different legal systems, sometimes working into the question the concept of judicial precedence.

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

Questions have also appeared occasionally requiring you to contrast legal proceedings under criminal law as opposed to civil law, where UK is taken as the example.

KEY KNOWLEDGE CRIMINAL LAW V CIVIL LAW Under UK law the key differences are summarised in the table below. CRIMINAL

CIVIL

Action brought by

Crown Prosecution Service

Claimant

Action brought against

Accused

Defendant

Burden of proof required

Beyond reasonable doubt

Balance of probabilities

Determination of guilt/liability

Minor offences = Magistrates

Judge (in rare instances Jury)

Sentence/award determined by

Minor offences = Magistrates

Case described as

Regina v Jones

Serious offences = Jury

Judge

Serious offences = Judge Smith v Jones

KEY KNOWLEDGE JUDICIAL PRECEDENCE This is primarily associated with common law systems and explains why in such systems judges are said to create law, as well as applying and interpreting the laws created by the legislative body. Judicial precedent brings a highly desirable consistency to the hearing of cases, in that provided the circumstances of a later case are essentially the same as an earlier one, the decision will be the same. Before applying an earlier case as a precedent, it will be necessary to have a positive response to the following questions: • •

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Was it based on a proposition of law? Was it part of the ratio decidendi?

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ACCA F4 (GLO) Corporate and Business Law

• •

Were the material facts of the case the same? Was the decision made in a court of equal or (more commonly) superior status?

KEY KNOWLEDGE COMMON LAW Primarily associated with UK, but because of England’s historical influence also to be found in many other countries, most notably perhaps in USA. Significant sources of law currently in UK are: • • •

Common law and equity which stem from the records of case law over many hundreds of years Statutory law which results from the passing of Acts of Parliament EU law applicable to UK as a member state

In countries such as USA there are procedures for judicial review to ensure that no laws are passed which would be in breach of that country’s written constitution (not applicable in UK as no written constitution). In UK there are various presumptions in relation to statutory law and guides and rules as to its interpretation that you should be familiar with.

KEY KNOWLEDGE CIVIL LAW Main contrast with UK system is that civil law systems tend to use codification by means of legislation in order to try to bring understanding and certainty to the law. Countries adopting a civil law approach most normally have a written constitution. Significant sources of law currently in France are: • • • •

Constitution Statutory law Administrative Regulations EU law

In civil law systems, the role of judges is to apply the law and so there is much less guidance on interpretation of statutes and there is no formalised system of judicial precedent.

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ACCA F4 (GLO) Corporate and Business Law

KEY KNOWLEDGE SHARIA LAW Major contrast with common and civil law systems, which are essentially secular, is the fact that Sharia law is specifically related to and founded upon the Islamic religion. The main sources of law are: 1. The Quran which is a record of the divine revelations of Allah to his Prophet Muhammad 2. The Sunnah which is derived from the sayings of the Prophet Under the traditions of Sharia law, judges are usually clerics (Imam). Secondary sources of law, known as Madhab, are based on the works of major jurists in the years immediately after the death of the Prophet. Like many Muslim countries, Iran has a written constitution which upholds the traditions of Sharia law. The role of judges is apply the law and where interpretation is required this must be in accordance with strict and fairly complex Islamic traditions.

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

Chapter 2

International Organisations

START The Big Picture Questions in this area tend to be purely of the knowledge type. You are usually asked to explain the role and activities of two or three organisations which are usually just indicated by an acronym eg. UN stands for United Nations. It is important to appreciate that you can start the mark earning process simply by stating what the letters stand for. Past examiner marking schemes suggest that marks will also be awarded for briefly displaying some knowledge of the history and membership of the given organisation.

KEY KNOWLEDGE The European Union (EU) The EU as we now know it was established by the Treaty of Maastricht in 1993, continuing on from the previous European Economic Community first established by the Treaty of Rome in 1957.

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ACCA F4 (GLO) Corporate and Business Law

Currently the EU is an economic and political union with a membership of 27 sovereign states. EU has aimed to develop a single market by means of a standardised system of laws which apply to all member states and which are designed to provide freedom of movement of goods, services, people and capital. Important institutions of the EU include: • • •

European Commission European Court of Justice European Parliament

KEY KNOWLEDGE World Trade Organisation (WTO) Replacing the General Agreement on Tariffs and Trade set up in 1947, WTO was established by the Marrakesh Agreement in 1995. With its headquarters in Geneva, WTO currently has 153 members representing in excess of 95% of world trade. The WTO is designed to supervise and liberalise international trade between participating countries by providing a framework for both the negotiation and formalisation of international trade agreements, as well as a dispute resolution process designed to enforce adherence to WTO agreements. Co-operating closely with the IMF and the World Bank, the WTO also does much important work in providing technical assistance to developing countries.

KEY KNOWLEDGE International Chamber of Commerce (ICC) Based in Paris, the ICC was established in 1919 to “serve world business by promoting trade and investment, open markets for goods and services, and the free flow of capital.” With representation in 130 countries worldwide, the ICC has interests covering the vast majority of private sector enterprises and frequently provides expert views to organisations such as the UN and WTO as well as individual national governments.

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ACCA F4 (GLO) Corporate and Business Law

Amongst its most significant work has been the establishment of the ICC International Court of Arbitration in 1923 and the development of ‘incoterms’. Incoterms (international contract terms) are standard terms widely used in contracts for international sale of goods and have often been the source of knowledge based questions in their own right.

KEY KNOWLEDGE The United Nations (UN) Begun in 1945 after the Second World War, currently almost every independent country in the world is a member of the UN. Under its charter the main objectives of the UN are facilitating co-operation in: • • • •

International law International security Economic and social development Promotion of human rights and the maintenance of world peace

In relation to legal matters, important bodies of the UN should be seen as: 1. International Court of Justice 2. International Law Commission 3. UN Commission on International Trade Law (UNCITRAL)

KEY KNOWLEDGE UN Commission on International Trade Law (UNCITRAL) Formed in 1966 in order to “to promote the progressive harmonisation and unification of international trade law”. Representatives of 60 member states are elected to the Commission for a period of 6 years. Elections are made by the UN General Assembly with the intention that the Commission should be representative of the world’s different regions and economic and legal systems. Important outcomes of the Commission’s work so far as our studies are concerned have been the production of various Conventions and Model Laws. Conventions include:

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ACCA F4 (GLO) Corporate and Business Law

• • •

Convention on Contracts for the International Sale of Goods Convention on the Carriage of Goods by Sea Convention on International Bills of Exchange and International Promissory Notes

Model Laws include: • • •

Model Law on International Commercial Arbitration Model Law on International Credit Transfers Model Law on Cross-border Insolvency

KEY KNOWLEDGE The Council of Europe (CoE) Perhaps one of the most important things to note from an exam point of view, is that the CoE should NOT be confused with the EU. Based in Strasbourg CoE was founded in 1949 and now covers most of the European continent, with 47 member states. The stated objectives of the CoE are “... to create a common democratic and legal area throughout the whole of the continent, ensuring respect for its fundamental values, human rights, democracy and the rule of law”. The CoE issues Conventions which are legally binding once adopted by member states and also publishes recommendations which act as guidelines for use by member states in the development of their own national laws.

KEY KNOWLEDGE International Institute for the Unification of Private Law (UNIDROIT) Based in Rome, UNIDROIT was established in 1926 and currently has 63 member states drawn from all parts of the world and representing a variety of political, economic and legal systems. UNIDROIT is an independent intergovernmental organisation whose stated purpose is “to study needs and methods for modernising, harmonising and co-ordinating private and in particular commercial law as between States and groups of States”. Traditionally, UNIDROIT has tended to concentrate on production of conventions, but more recently has shown a preference for production of:

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ACCA F4 (GLO) Corporate and Business Law

• • •

General principles Legal guidance Model Laws

KEY KNOWLEDGE Others In your studies some consideration should also be given to the following: • • •

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ICJ – International Court of Justice OECD – Organisation for Economic Co-operation and Development ICA – International Court of Arbitration

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ACCA F4 (GLO) Corporate and Business Law

Chapter 3

International Commercial Arbitration

START The Big Picture Whilst not necessarily prompting a question in every examination sitting, as one of the areas where there is an UNCITRAL Model Law, it is a topic which has and can be expected to be examined on a regular basis. Questions have most commonly been of the pure knowledge type, but application questions are not unheard of. What is arbitration? Put simply, it is an alternative form of resolving disputes where an independent party provides a ruling which will be legally binding upon those parties who have agreed to submit to the arbitration process. Why go to arbitration rather than the courts? Amongst the advantages frequently claimed for the arbitration approach to dispute resolution are: • • •

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May be cheaper May be faster Less adversarial

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ACCA F4 (GLO) Corporate and Business Law

• •

Less formalised Greater variety of outcomes possible

KEY KNOWLEDGE UNICITRAL Model Law on International Commercial Arbitration As you have probably realised only too well by now, F4 is a paper which requires you to do a great deal of hard slog learning. After all the law is the law and you either know what it says or you don’t. Spending time with your more detailed study materials is therefore essential if you are to be successful in this subject. Key points to note in your studies are:

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Parties may basically agree whatever they wish in relation to an arbitration agreement, but in the absence of agreement the Model Law will apply

Whether arbitration is international is related to where parties places of business are located or where obligations of contract are carried out

Arbitration is commercial in effect if it relates to any normal legal trading activity

Generally speaking Model Law says that courts should not be involved in arbitration proceedings

Arbitration agreement is required to be in writing (3 possibilities)

Under Model Law will be 3 arbitrators (1 appointed by each party with these 2 then appointing 3rd)

Model law lays down grounds and procedure for challenging an arbitrator basically on grounds of lack of independence and/or qualification

Model Law provides various general rules in relation to the conduct of arbitral proceedings specifically in relation to location, timing, language and use of experts and court assistance

Finally the Model Law gives direction on award enforcement and grounds for seeking recourse against such award eg. incorrect composition of tribunal

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ACCA F4 (GLO) Corporate and Business Law

Chapter 4

Contracts for International Sale of Goods

START The Big Picture The UN Convention on Contracts for International Sale of Goods (CISG) and related topics such as transportation (including incoterms) and payment in relation to such contracts are an absolutely vital part of your studies. In the Pilot Paper and all real exams to date there have always been at least 2 knowledge type questions and 1 application question drawn from these sections of the syllabus and you should anticipate this trend continuing. You must learn and be prepared to give definitions of key terms. In relation to CISG you must also learn and be prepared to apply your knowledge of the rights and obligations of both buyers and sellers.

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ACCA F4 (GLO) Corporate and Business Law

You should note carefully that the Convention on CISG only applies to the sale of goods (subject to certain exemptions) and does not apply to: 1. Supply of services 2. Contracts where buyer provides majority of materials so that in essence the main obligation of the seller is the provision of labour A CISG is formed when there is proper acceptance of a valid offer. An offer should not be confused with an invitation to treat, which is any other proposal which does not meet the requirements of a valid offer as indicated below.

KEY KNOWLEDGE Offer “An offer is a proposal for concluding a contract addressed to one or more specific persons that is sufficiently definite and that indicates the intention of the offeror to be bound by acceptance.” In this context, sufficiently definite means that it covers the following: • • •

Goods Quantity Price

Offer, which does not need to be in writing becomes effective when it reaches the offeree and may be ended in the following ways: • • •

Withdrawal Revocation Rejection

KEY KNOWLEDGE Acceptance Acceptance may be indicated by word or action and becomes effective once the offeror becomes aware of it. Acceptance may be withdrawn but only if it reaches the offeror before or at the same time as the acceptance would otherwise have been effective. If offeree makes any amendments to offer then this is a counter-offer.

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ACCA F4 (GLO) Corporate and Business Law

Minor amendments can be effectively acceptance subject to the offeror’s right to reject within a reasonable time. Major amendments constitute a counter-offer which is effectively rejection of the original offer.

KEY KNOWLEDGE Incoterms As referred to in an earlier section, incoterms are standard contract terms developed by the ICC. The examiner has frequently set questions where you have simply been asked to briefly explain the significance of 2 or 3 incoterms. The examiner has simply given an acronym, so you start the mark earning process by simply indicating correctly what the letters stand for. It is vital therefore that you learn the following and are able to briefly describe the meaning of each of them.

• • • • • • • • • • • • •

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EXW = ex works FCA = free carrier (named place) FAS = free alongside ship FOB = free on board CFR = cost and freight CIF = cost, insurance and freight CPT = carriage paid to CIP = carriage and insurance paid to DAF = delivered at frontier DES = delivered ex ship (named port of destination) DEQ = delivered ex quay (duty paid) DDU = delivery duty unpaid DDP = delivered duty paid

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ACCA F4 (GLO) Corporate and Business Law

KEY KNOWLEDGE CISG – Main Rights and Obligations of Buyers and Sellers

BUYER’S RIGHTS If the seller is in breach of contract, then under the convention the buyer may, depending on the circumstances, have right(s) to: • • • •

require performance have the contract avoided obtain a price reduction due to non-conformity of the goods obtain damages (need to mitigate loss)

BUYER’S OBLIGATIONS The main obligations of the buyer are to: • • • •

where possible, to check the goods for conformity as soon as possible after delivery accept delivery of the goods make payment for the goods where necessary, preserve the goods

SELLER’S RIGHTS If the buyer is in breach of contract, then under the convention the seller may, depending on the circumstances, have right(s) to: • • •

require payment and acceptance of goods have the contract avoided obtain damages (need to mitigate loss)

SELLER’S OBLIGATIONS The main obligations of the seller are to: •

• • •

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effect delivery of the goods either to the specified place (under contract) or in accordance with the Convention (dependent on whether or not contract includes carriage or goods specifically identifiable to contract) ensure quality and conformity (quantity, quality and description) of goods ensure goods free of any undisclosed third party claims/rights where necessary, preserve the goods

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ACCA F4 (GLO) Corporate and Business Law

KEY KNOWLEDGE The Passing of Risk This is often a significant point within an application type question and also links in with incoterms. It impacts on which party would be responsible for insurance of the goods as ownership will have passed from seller to buyer The key points to note are: 1. If the contract involves carriage then, unless specified otherwise, risk passes when the goods are handed to the first carrier 2. If the contract does not involve carriage, unless specified otherwise, risk passes when the goods are taken over by the buyer

KEY KNOWLEDGE Transportation Documentation An important aspect of CISG is carriage as we have seen mentioned above. A bill of lading is the documentary evidence that the goods have passed to the carrier. Usually the bill of lading (may be negotiable/non-negotiable) acts as a document of title to the goods and evidences the following: • •

goods received by carrier contract of carriage and its terms

There are 4 types of bill of lading: 1. 2. 3. 4.

inland ocean through (mix of overland and marine) airway (always non-negotiable)

KEY KNOWLEDGE Payment Payment for CISG may be effected in a number of ways, principally: 1. International bills of exchange 2. International bank transfer

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3. Letters of credit (not to be confused with a Letter of Comfort) International Bills of Exchange These are the subject of an UNCITRAL Convention under which an international bill of exchange is defined as a written instrument which: •

• • •

Contains an unconditional order whereby the drawer (the buyer) directs the drawee (usually the buyer’s bank) to pay a definite sum of money to the payee (the seller) or to his order (viz the bill may be endorsed to a third party) Is payable on demand or at a definite time Is dated Is signed by the drawer

International Bank Transfer These are the subject of an UNCITRAL Model Law which provides the terms (rights and liabilities) under which the buyer transfers funds to the seller by means of the international banking system. Letters of Credit Letters of credit, which may take a variety of forms, essentially provide the seller with a guarantee of payment. Those involved in a letter of credit are usually a beneficiary (the seller), the issuing bank (the buyer’s bank) and the advising bank (the seller’s bank).

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Chapter 5

Agency

START The Big Picture Agency law could be a question in its own right, but it is also important to appreciate that the underlying principles of this law could also appear in the context of a partnership or company question. Questions may be either pure knowledge, with easy marks available if you have learned definitions of key terms, or of a more practical nature where you have to apply your knowledge of the law to a given scenario.

KEY KNOWLEDGE Formation of an Agency An agency relationship may be created in a number of ways by: 1. Agreement (consent) 2. Ratification (subject to various conditions) 3. Operation of law eg. agent of necessity

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4. Implication (estoppel)

KEY KNOWLEDGE Authority of Agents The authority of agents to enter into legally binding contracts with third parties on behalf of their principal can be recognised in the following ways: 1. ACTUAL AUTHORITY May arise in one of two ways:

(i) (ii)

Express eg. under terms of appointment Implied eg. by nature of activities Watteau v Fenwick NB implied authority may be restricted but only effective if communicated to TP

2. APPARENT (OSTENSIBLE) AUTHORITY This most commonly arises as a result of agent having been ‘held out’ as such by the principal.

KEY KNOWLEDGE Duties of Agents Common law duties of agents are normally seen as being: • • • • • • • • •

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Obedience Non-delegation Acting within authority Avoid conflicts of interest No secret profit Act with due skill and care Disclose all material facts Confidentiality Account for principal’s property

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KEY KNOWLEDGE Termination of Agency May be by agreement or because of (in relation to principal or agent): • • •

Death Insanity Bankruptcy

KEY KNOWLEDGE UN Model Law on Agency Given the tri-partite situation which is agency (principal, agent and third party) there is great potential for conflict of laws in the event of dispute arising. Under the model law mutual agreement may always dictate which national law should apply in the event of dispute, but in the absence of such agreement the Model Law will be applied. The one exception to the above would be if any country connected with the agency relationship has relevant mandatory rules then these should be applied. Model law - agent v principal Basic rule = law of country where agent had place of business at start of relationship. Exception = law of country where principal has place of business if agent acting in that country. NB if no place of business (POB), then POB treated as habitual residence. If more than one POB, use one most closely connected. Model law – agent v third party Basic rule = law of country where agent had POB at time of acts. This also applies where agent does not deal face to face with third party. Exceptions = law of country where agent has acted if: • • • •

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Acting at exchange or auction Agent has no POB of own Acting in name of principal in country where principal has POB Acting in any country where principal has POB

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Chapter 6

Partnerships

START The Big Picture Partnerships are the traditional business form of accounting firms and other professionals such as lawyers and doctors. Exam questions can either be knowledge based or practical. From an exam point of view, pure knowledge type questions have tended to ask for distinctions between the different types of partnership. A common failing of many candidates in the past has been to confuse limited partnerships with limited liability partnerships (LLP) so make sure that you are totally happy with the difference between these two partnership forms in particular. Knowledge of non-UK partnerships is likely to require little more than an ability to recognise the terms and relate to their UK nearest equivalent. Practical questions have tended to concentrate on partners’ duties (relate to agency law) and their potential liability for the firm’s debts.

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KEY KNOWLEDGE General Partnership (aka Traditional Partnership) Key points to note are as follows: • • • • • • • •

All partners are agents for firm Firm is a separate accounting entity but NOT a separate legal entity All partners may participate in firm’s management All partners generally have unlimited ‘joint and several’ liability for firm’s debts New partners not normally liable for firm’s debts incurred prior to admission Retired partners not normally liable for firm’s debts incurred after retirement No requirement for registration, audit or filing of accounting returns Main UK legislation Partnership Act 1890

Examples of nearest non-UK equivalents: 1. France = Société en nom collectif 2. Muslim = Musharakah

KEY KNOWLEDGE Limited Partnership Key points to notes are as follows: • • • • • •

Must be at least one general partner with unlimited liability for debts of firm Limited partner liability restricted to agreed capital contribution which may not be withdrawn Limited partner may not participate in management of firm Limited partner may not act as agent for firm Firm must be registered with Companies House Main UK legislation Limited Partnership Act 1907

Examples of nearest non-UK equivalents: 1. France = Société en commandite simple 2. Muslim = Mudaraba

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KEY KNOWLEDGE Limited Liability Partnership (LLP) Key points to note are as follows: • • • • •

Is a separate legal entity Has audit and filing requirements Liability of members (partners) for firm debts normally limited to agreed capital contribution Each member (partner) treated as agent for the firm Main UK legislation Limited Liability Partnership Act 2000

Many other countries have similar legislation to that in UK.

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ACCA F4 (GLO) Corporate and Business Law

Chapter 7

Company Formation and Financing

START The Big Picture Although you are taking the Global variant of F4, when it comes to Company Law the syllabus is primarily based on the UK Companies Act 2006, together with other UK legislation. In this section, we shall look at a number of important topics, many of which eg what documents have to be filed on incorporation of a company traditionally have been the subject of knowledge based questions although there are some eg priority of secured charges which could equally well require the practical application of knowledge. From an exam point of view, your main concern is with limited liability companies, where the liability of the members for the debts of the company is normally limited by shares. In particular, it is limited to any amount unpaid on the value of the shares issued to them. You should also be aware that it is possible to have unlimited companies and companies where the liability of the members is limited by guarantee. When dealing with this section of the syllabus, it is also important to note the distinction between private companies (where name ends with Limited or Ltd) and public companies (where name ends with Public Limited Company or PLC), as the rules for public companies are usually more stringent eg greater restriction on distributable profits. Note also that a listed company (viz a company whose shares are quoted on a recognised stock exchange) must be a public company, but that a public company is not necessarily a listed company.

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You will also need to think back to your studies of agency law, as a director of a company would normally be seen as an agent for that company and also the promoter of a company will effectively be treated as an agent as well. A very important concept to grasp is that a company as an incorporated body is a separate legal entity as first established by the case of Salomon v Salomon & Co Ltd. Exam questions frequently ask in this context about occasions where the ‘veil of incorporation’ may be lifted. Most other countries have incorporated bodies similar to those in UK.

KEY KNOWLEDGE Key Distinctions Between Private and Public Companies The table below shows some of the most noteworthy distinctions between private and public companies. DETAIL Trading certificate required Minimum capital Public issue allowed Minimum members Minimum directors Company Secretary AGM required Audit required Distribution rules Full Accounts required Accounts filing

PRIVATE No No No 1 1 Optional Optional Possible exemption Basic Modified possible 9 months

PUBLIC Yes Yes Yes 1 2 Compulsory Compulsory Compulsory Additional restriction Yes 6 months

KEY KNOWLEDGE Lifting the Veil of Incorporation As indicated above, a company is regarded as a separate legal entity, so that under normal circumstances the members and officers of the company are protected behind what is known as the ‘veil of incorporation’. However, you need to be aware that this ‘veil’ may on occasions be ‘lifted’, as shown by the following table.

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LAW ENFORCEMENT Unacceptable company name Lack of trading certificate Disqualified director(s) Wrongful trading Fraudulent trading

GROUP SCENARIOS Group regarded as single entity Group structure being used for fraudulent purposes Subsidiary regarded as agent of parent company

OTHER Public interest Company treated as quasipartnership Tax evasion Legal obligations evasion Liabilities evasion

KEY KNOWLEDGE Company Promoters Any person involved in the formation of a company, other than when acting in their normal professional capacity (eg lawyer), is deemed to be a promoter. Promoters have a general duty to exercise reasonable skill and care. Unless the promoter will wholly own newly formed company he has agent’s responsibilities to others subscribing for shares and in particular must: • • •

avoid conflicts of interest fully account for all benefits received not make secret profits

You should note carefully that pre-incorporation contracts entered into on behalf of the company cannot be ratified, because at the time of their creation the company did not exist, nor have contractual capacity.

KEY KNOWLEDGE Company Formation Company formation is achieved when the Registrar of Companies issues a Certificate of Incorporation having been satisfied that the necessary registration documents have been filed (may be done on-line), together with the appropriate fee (currently £20).

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Required documents are: • • • • • •

registration application giving details of proposed name, location and address of registered office, company type and members’ liability Memorandum of Association which basically gives details of those who have agreed to be first members of the company Articles of Association whose content will be covered separately later (only required if company chooses not to adopt Model Articles provided by statute Statement of proposed company officers (director(s)/company secretary) Statement of capital and initial shareholdings (not required for companies limited by guarantee) Statement of compliance with Companies Act provisions

A private company may begin its business activities as soon as it has received its Certificate of Incorporation. Before a public company may legally begin its business activities, it must in addition to its Certificate of Incorporation, obtain from the Registrar of Companies a Trading Certificate. In applying for such certificate, the following must be submitted: • • •

Statement that nominal value of allotted share capital is not less than £50,000 Details of formation expenses, including those made to promoters Statement of compliance

KEY KNOWLEDGE Company Constitution Traditionally, a company’s constitution was comprised of 2 documents: 1. Memorandum of Association 2. Articles of Association This was changed significantly by the Companies Act 2006, such that the constitution is now comprised of: 1. Articles of Association 2. Subsequent resolutions and agreements forming amendments to the original Articles The Memorandum of Association is now essentially an historical document produced at the time of registration of the company giving details of its original founders.

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The Articles of Association now contains a number of important clauses which were previously contained in the Memorandum and are essentially a set of internal rules (eg directors’ powers) relating to the running of the company. Alteration of the Articles is possible by the passing of a special resolution (75% majority). Whilst there are provisions to protect minorities the general rule applied by the courts has always been that if it is in the best interests of the company as a whole, then the will of the majority should prevail. Articles as a Contract It has been held that the Articles form a contract which will be legally binding on the parties involved, when one of those parties is a member and the issue relates to membership, as follows: 1. Members to company - Case: Hickman v Kent or Romney Marsh Sheepbreeders Association 2. Company to members – Case: Pender v Lushington 3. Members to members – Case: Rayfield v Hands The Articles do not form a contract between company and third parties. Case: Eley v Positive Government Life Assurance Co. Objects Clause This clause traditionally set out the activities which the company was permitted to be involved in, but under the Companies Act 2006 a company will have unrestricted objects unless it decides otherwise. If a company acts outside of its objects, such action is said to be ultra vires (outside the powers of). Normally, ultra vires acts by a company or one of its directors will not be voidable so far as third parties are concerned, but the members could take action against the directors for breach of authority. Name Clause All companies are required by law to have a unique name which must normally end (some exceptions basically for charities) with the word(s) Limited or Public Limited Company or the accepted abbreviations Ltd or PLC.

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Name chosen must also comply with certain rules and may be rejected on application for registration or subsequently be ordered to change if: • • • • •

Offensive Suggest unauthorised/inappropriate connection Sensitive Criminal offence Court upholds ‘passing off’ action

KEY KNOWLEDGE Share Capital A share has been defined as “the interest of a shareholder in the company measured by a sum of money, for the purpose of a liability in the first place, and of interest in the second, but also consisting of a series of mutual covenants entered into by all the shareholders.” You should note carefully the following types of capital, which you should be familiar with from earlier financial accounting studies:

• • •

Issued and allotted share capital Called up share capital Paid up share capital

You should likewise be familiar with and note carefully the distinction between ordinary (equity) and preference shares as summarised in the following table: Voting rights

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ORDINARY Normally unrestricted

Entitlement to dividend

Not payable until after preference dividend but then not normally subject to any restriction

Repayment of capital on liquidation

‘last in the queue’ after all third parties and preference shareholders

PREFERENCE Normally restricted to matters affecting own class rights Paid before ordinary dividends and if cumulative (normal) any arrears will have to be paid before any distribution to ordinary shareholders Rank after third parties, but before ordinary shareholders

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In your studies you should also give some consideration to the following issues relating to share capital: • • •

Issuing and allotment of shares Redeemable shares Variation of class rights

KEY KNOWLEDGE Loan Capital A key point to note is that the holders of loan capital are creditors of the company and not members. In looking to raise long-term loan capital a company will often issue what is called a debenture. A debenture is a written acknowledgement of a debt which normally contains details of the conditions of the loan eg interest rates and repayment terms. There are 3 main types of debenture: 1. Single debenture 2. Debenture issued as a series 3. Debenture stock Debentures are most commonly seen as being secured, in that they create a legal charge over one or more of the company’s assets. Charges The effect of creating a legal charge over a company’s asset(s) is to give the holder of the charge a prior claim over unsecured creditors to the proceeds of sale of said asset(s). There are 2 main types of charge and you need to note carefully the distinctions between them and their ‘ranking’ in terms of priority for payment in the event of the security being enforced: 1. Fixed charge 2. Floating charge With a fixed charge, the security relates to a specific asset (eg mortgage on a freehold factory) and until the loan is repaid, the company in effect loses the beneficial ownership of

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the asset and cannot dispose of the asset without the lender’s permission and repayment or transfer to the new owner of the liability. With a floating charge, the security relates to a group of assets (eg inventory) and so long as the terms of the loan are complied with, the company may freely trade in the assets. If the conditions of the loan are breached, the charge is said to crystalise and then effectively becomes a fixed charge. If there is more than one charge on the same asset(s) then the general rule to note is that charges will normally rank in the order in which they are created, provided they are registered in time (within 21 days) and that fixed charges will normally rank before floating charges, even if a floating charge was created first. As an exception to the above, a floating charge which contains a ‘negative pledge clause’ may rank before a fixed charge created subsequently, provided its existence is communicated to the holder of the later fixed charge. Charges may be registered with the Registrar of Companies either by the company or the charge holder and details must be held also in one of the company’s statutory books known as the Register of Charges.

KEY KNOWLEDGE Maintenance of a Company’s Capital There is a general assumption in company law that companies should not be allowed to make payments out of capital if this would be detrimental to the company’s third party creditors. The most important provisions so far as potential examination questions are concerned relate to: 1. Reduction of share capital 2. Distribution of dividends Reduction of share capital There are a number of reasons why a company might wish to reduce its capital such as: • • •

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To eliminate retained losses To eliminate liability on partly paid shares To return capital no longer required

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The necessary requirements for reduction are: • • •

Authority to do so in Articles Passing of a special resolution Obtaining court sanction (not necessary for a private company if produces a ‘declaration of solvency’)

Distribution of dividends The basic rule is that no company may pay dividends otherwise than out of ‘profits available for the purpose’ (PAP). For a private company PAP are taken as any excess of accumulated realised profits over accumulated realised losses. For PLCs there is a further restriction in that they may not make any distribution unless at the time the company’s net assets are not less than the aggregate of its called-up share capital and undistributable reserves. The net effect of this is that the PAP (calculated as for a private company) of a PLC will be restricted by the amount of any accumulated unrealised losses.

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Chapter 8

Company Administration

START The Big Picture Questions from this part of the syllabus have predominantly been knowledge based. It is important that you become familiar with the main provisions relating to those seen as being the officers of the company, namely: • • • •

Directors Company Secretary Company auditors (external) Remember that directors and company secretary would normally be seen as agents for the company, so some of the basic provisions of agency law considered earlier may apply.

So far as the company’s auditors are concerned, you do not need to consider any audit procedures (that will come later in Paper F8 Audit and Assurance), but simply the provisions relating to: • •

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Appointment Removal

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• •

Resignation Rights and duties

Questions, particularly perhaps relating to directors may, as has happened in the past, be put in the context of corporate governance considerations.

KEY KNOWLEDGE Directors Minimum number of directors Private company = 1 Public company = 2 There is no statutory maximum Age requirements Minimum age is 16 years. Maximum age, there is no statutory limit but Articles may provide otherwise. Qualification Somewhat surprisingly perhaps, there are no formal qualifications required in law to act as a company director, unlike auditors and company secretary (PLC). Disqualification of directors Whilst there are no statutory qualification provisions, there are some relating to disqualification from acting as a director and directors may also be disqualified under specific provisions contained in the company’s Articles. The Model Articles for a PLC state that a director should leave office if they: • • • • •

Are barred by the Companies Act or any rule of law Become bankrupt or make an arrangement with their creditors Become insane Are absent without consent for a period of 3 consecutive months from board meetings and the other directors determine that they should They give written notice of resignation

Under the provisions of the Company Directors Disqualification Act (CDDA) 1986, an individual may be disqualified by the court on the following grounds for up to 15 years:

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• • • • • •

Persistently in breach of company legislation provisions Involvement in fraudulent trading Deemed to be in public interest Participation in wrongful trading Involvement certain competition violations Conviction relating to company promotion, formation, management or liquidation

Under CDDA court must make disqualification order for minimum of 2 years if satisfied: • •

Director of insolvent company Deemed unfit for company management

Different types of directors You should note carefully that there are various terms used to describe directors and that somebody may in law be regarded as a director, even if they have not been formally appointed as such and do not actually attend board meetings. The key terms are: • •

• • •

Executive director – usually full-time and involved with company management on a day-to-day basis Non-executive director – part-time and involved with company’s corporate governance procedures, rather than having a specific management function. Should be independent. Managing director (CEO) – has greater implied powers and has overall responsibility for executive management of the company Shadow director – not formally appointed as a company director, but board commonly follows their requests Alternate director – in effect a replacement for another director during enforced periods of absence

Appointment of directors Details of company’s first directors are provided as part of registration process. It is the company’s Articles which lay down the ‘rules’ relating to directors, but normally, subsequent appointments may be made: 1. By the board 2. By the company in general meeting (ordinary resolution)

Retirement/re-election of directors

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Under Model Articles for PLC: • •

First AGM all retire, but may stand for re-election Subsequent AGMs nearest number to one third retire, but may stand for re-election

Publicity regarding directors The main points to note are as follows: • • • •

Details of directors and any changes must be filed with Registrar of Companies Details must be maintained in Register of Directors (statutory book) Copies of directors’ service contracts must be available for inspection by members Listed companies must produce a Directors’ Remuneration Report as part of their Annual Report

Removal of directors The main points to note are as follows: • • • • • •

Special notice (28 days) must be given to company of resolution Copy of resolution must be given by company to director Director has right, at company’s expense, to make reasonable length representations to members before meeting Director has right at the meeting to address members before vote takes place Removal requires passing of an ordinary resolution Removed director may be entitled to compensation for loss of office

Duties of directors The Companies Act 2006 has codified 7 general duties of directors, these may be added to by the Articles, but the Articles generally cannot reduce these statutory responsibilities which are to: 1. 2. 3. 4. 5. 6. 7.

Act within their powers (under Act and/or Articles) ‘Promote the success’ of the company Exercise independent judgment Exercise reasonable skill, care and diligence Avoid conflicts of interest Not accept benefits from third parties Declare any interest in a proposed transaction or arrangement

Powers of directors

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Generally, the powers of directors will be outlined in the company’s Articles, but you should also remember the general rules of Agency Law with regard to directors who will be treated as agents of the company under normal circumstances, namely: • •

Actual authority (express or implied) Ostensible authority

KEY KNOWLEDGE Company Secretary Private companies are not required to have a company secretary. All PLCs must have a company secretary who should be suitably qualified either on the grounds of experience or through the holding of a recognised professional qualification. Duties of Company Secretary The specific duties will be determined by the company’s directors, but as an officer of the company they are held to be primarily responsible for the company’s compliance with statutory obligations, including: • • • • • • •

Maintenance of company’s statutory books Organising and minuting board meetings Organising and minuting company meetings Ensuring proper accounting records maintained Ensuring financial statements are properly prepared Filing of company accounts and returns Signing company documents as required by law

KEY KNOWLEDGE Auditors Appointment of Auditors Key points to note are: • •

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Normally made by members at company’s AGM Often provision made for initial appointment to be made by directors, who may also fill a casual vacancy.

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

Rights of auditors Statutory rights of auditors are concerned with auditors’ ability to approach work in an independent way and include the rights to: • • • • •

have access to all company books, records etc at all times obtain all information and explanations considered necessary from company management and staff receive notice of, to attend and be heard at all general meetings of the company on matters relating to the financial statements and/or their own appointment to resign and request directors to convene GM of company where there are ‘surrounding circumstances’ connected with the resignation to make representations to shareholders where there is attempt to remove them from office with which they do not concur

Duties of auditors Under Companies Act main duties and responsibilities are: • • • •

to report opinion to shareholders whether financial statements give a true and fair view and have been properly prepared in accordance with Act to consider implications for audit reporting on financial statements of consistency of ‘other financial information’ published together with the financial statements to qualify audit opinion where necessary to provide proper notice on resignation

Resignation of auditors The main concern here is that auditors should not be able to just ‘fade away quietly’ in order to avoid an awkward situation, leaving shareholders and others who place reliance upon their work, in the dark about important issues of which the auditors are aware. The key points are: • •

auditors must deposit formal written notice of their resignation at the company’s registered office such notice must be accompanied by a positive/negative statement as to whether in their opinion there are any surrounding circumstances requiring communication to the members or loan creditors of the company where there are surrounding circumstances, the auditors may request the directors to convene a GM so that the members may have the opportunity of questioning them further

Removal of auditors

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

The Companies Act provisions here follow closely the rules with regard to removal of directors considered earlier: • •

• •

special notice must be given of the resolution proposing a change in auditors auditors must be notified of resolution and, if they wish to contest, have the right, at the company’s expense, to pre-circularise their representations to the members as to why they should remain in office at the meeting auditors may again put forward their position before the vote takes place removal will require the passing of an ordinary resolution (simple majority)

KEY KNOWLEDGE Company Meetings and Resolutions The table below summarises the main details you need to learn in relation to company and shareholders’ class meetings. Frequency

Minimum notice required Agenda

Page | 45

AGM PLC must hold within 6 months of year end and not more than 15 months from previous AGM. Private companies not mandatory. 21 days unless all members entitled to attend and vote agree shorter notice. Normal business would cover acceptance of accounts, acceptance of directors’ recommendation for dividend, appointment of auditors and directors and AOB.

GM As necessary

CLASS As necessary

14 days

14 days

Set by requisitioner of meeting.

Usually to consider some variation of class rights.

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

Meeting requested by

Directors

Quorum

May be determined by Articles otherwise normally 2 persons.

Directors under power in Articles. Directors at request of resigning auditor. Directors of PLC at request of members holding 10% of voting capital. Directors of private company at request of members holding 10% of voting capital (5% if more than 12 months since last meeting). Court where deemed necessary. May be determined by Articles otherwise normally 2 persons.

Basically as for GM.

2 persons holding/representing minimum of one third of nominal value of shares of that class

The table below summarises the main details you need to learn in relation to resolutions at meetings.

Minimum support required Purpose of resolution

Filing requirement

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ORDINARY 51% Anything that does not require special resolution Only as required by the Act

SPECIAL 75% Alteration of company name, objects or any other part of Articles Always within 15 days

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WRITTEN (private companies only) Same as required in GM May be anything EXCEPT resolutions requiring special notice Only if 75% majority required

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

Chapter 9

Company Liquidation

START The Big Picture Given the current world wide economic situation this is certainly a very topical area of the syllabus. A problem identified in the past by the examiner, has been the fact that many candidates make the mistake of assuming that if a company is in liquidation then it must be insolvent. This not true as can be seen by the following diagram.

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

COMPANY LIQUIDATION

VOLUNTARY LIQUIDATION

COMPULSORY LIQUIDATION

2 Types

Company may or may not be solvent

MEMBERS VOLUNTARY

CREDITORS VOLUNTARY

Company must be solvent

Company will be insolvent

Practical questions might ask you to determine order of priority for payment in the event of liquidation. Questions are also possible in relation to administration as an alternative to liquidation ( in US Chapter 11).

KEY KNOWLEDGE Members Voluntary Liquidation Key points to note are: • •

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Directors must make a ‘declaration of solvency’ Normally requires passing of special resolution

© 2013 The ExP Group. Individuals may reproduce this material if it is for their own private study use only. Reproduction by any means for any other purpose is prohibited. These course materials are for educational purposes only and so are necessarily simplified and summarised. Always obtain expert advice on any specific issue. Refer to our full terms and conditions of use. No liability for damage arising from use of these notes will be accepted by the ExP Group.

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

• • • • •

Liquidator appointed by members Liquidator realises company assets Liquidator reports to final members meeting Liquidator reports to Registrar of Companies Registrar registers report and company is dissolved

KEY KNOWLEDGE Creditors Voluntary Liquidation Key points to note are: • • • • • • •

Liquidation begins with passing of appropriate resolution Creditors meeting held and statement of affairs produced Liquidator appointed with will of creditors prevailing Liquidator realises company assets Liquidator reports to final members and creditors meeting Liquidator reports to Registrar of Companies Registrar registers report and company is dissolved

KEY KNOWLEDGE Compulsory Liquidation Reasons for liquidation As already indicated, with a compulsory liquidation, the company may or may not be solvent. Having said that, insolvency is the most common cause in practice for winding up of a company. The main reasons for instigating proceedings to wind up a company are: • • • •

Company is not able to meet its liabilities Company has not started business within 12 months from incorporation PLC has failed to obtain a Trading Certificate within 12 months from incorporation By order of the court that it would be ‘just and equitable’

Key points to note once proceedings to wind up the company have commenced are: • • • •

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Official Receiver is appointed as liquidator Company employees are automatically dismissed Ongoing legal actions against the company are halted Liquidator takes over power to run company from directors

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

KEY KNOWLEDGE Priority for Application of Assets on Liquidation You need to learn this list, as it could well appear either as a knowledge or application question: • • • • • • • • •

Secured creditor with fixed charge Liquidator’s fees and expenses Preferential creditors (wages etc within statutory limits) Secured creditors with floating charge Unsecured creditors (pari passu) Post liquidation interest Declared but unpaid dividends Shareholders’ capital Any surplus to shareholders

KEY KNOWLEDGE Company Administration Objective To provide a ‘breathing space’ to a company which is in financial difficulty but can see a realistic prospect of recovery. Appointment of Administrator Depending on circumstances, may be made by: • • •

Directors Secured creditor with floating charge Court

Impact of Administration The main points to note are as follows: • • •

Page | 50

Administrator (qualified insolvency practitioner) takes over running of company Suspension of creditors’ rights to seek enforcement of debts Any petition for winding up is dismissed and no new petitions will be heard

© 2013 The ExP Group. Individuals may reproduce this material if it is for their own private study use only. Reproduction by any means for any other purpose is prohibited. These course materials are for educational purposes only and so are necessarily simplified and summarised. Always obtain expert advice on any specific issue. Refer to our full terms and conditions of use. No liability for damage arising from use of these notes will be accepted by the ExP Group.

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

All documentation of company must clearly state that it is in administration and name the administrator

Conduct of Administration The main procedures are as follows: • • • • •

Administrator prepares his proposals and sends these to all members and creditors A creditors’ meeting is held to seek approval of the proposals If approved the administrator goes ahead with them, if not the court will decide what to do next The administrator has 12 months to complete his administration, although this period may be extended with the permission of the court and creditors At any time within the 12 month period, the administrator may apply to the court for discharge either because he has completed his task or is of the opinion that it is not achievable

KEY KNOWLEDGE US Chapter 11 Bankruptcy This is the American equivalent of administration in the UK. It gives the company a 120 day period to formulate and file a plan of reorganisation which will have to be approved by the company’s creditors. During this period, there is in effect a moratorium on the company’s existing debts and any litigation against it will be suspended.

Page | 51

© 2013 The ExP Group. Individuals may reproduce this material if it is for their own private study use only. Reproduction by any means for any other purpose is prohibited. These course materials are for educational purposes only and so are necessarily simplified and summarised. Always obtain expert advice on any specific issue. Refer to our full terms and conditions of use. No liability for damage arising from use of these notes will be accepted by the ExP Group.

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

Chapter 10

Fraudulent Behaviour

START The Big Picture Main concerns here are in relation to what are criminal offences in most countries namely: 1. Insider Dealing 2. Money laundering Since these topics were first brought into the syllabus they have proved to be a favourite with the examiner. Questions may be knowledge based or more usually in the case of insider dealing they have been application type questions based on given scenario. Also in this area of your studies consideration should be given to the criminal offences under UK law of: 1. Fraudulent trading 2. Wrongful trading

Page | 52

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

KEY KNOWLEDGE Insider Dealing In the UK this offence is covered by Criminal Justice Act 1993 What is insider dealing? Dealing in securities while in possession of inside information as an insider, the securities being price affected by the information. What is dealing? Acquiring or disposing of or agreeing to acquire or dispose of relevant securities whether directly or through an agent or nominee or a person acting according to direction. It is also an offence to encourage others to deal. What is inside information? Price sensitive information relating to a particular issuer of securities that are price affected and not to securities generally. Who are insiders? A ‘primary insider’ would be somebody directly employed by the issuer of the securities eg company director or has access to the inside information because of their position eg. company ‘s external auditor. A ‘secondary insider’ would be somebody who knowingly received information from a primary insider. Are there any general defences? Yes, several, eg. they did not expect there to be a profit on the dealing. It should also be remembered that as this is a criminal offence, the burden of proof must be ‘beyond reasonable doubt’. What are the penalties? Imprisonment for up to 7 years and/or a fine without limit.

Page | 53

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

KEY KNOWLEDGE Money Laundering In the UK money laundering is a feature of a number of different Statutes but is perhaps principally considered in Proceeds of Crime Act (PCA) 2002. What is money laundering? Put very simply, it is any attempt to make the proceeds of crime appear as legitimate money. What are the offences? Under the PCA there are 3 main offences: 1. Money laundering or assisting others in money laundering 2. Failing to report knowledge or suspicion of money laundering activities 3. Tipping off those involved in money laundering in any way which might prejudice criminal investigations What are the penalties? If convicted the following maximum penalties may be applied in the UK: 1. Money laundering – up to 14 years imprisonment and/or a fine 2. Failing to report – up to 5 years imprisonment 3. Tipping off – up to 5 years imprisonment

KEY KNOWLEDGE Fraudulent Trading This arises where a company is carried on with intent to gain unfair advantage over others or for any fraudulent reason. Those responsible (eg directors or possibly shareholders) may be held personally liable for the debts of the company and could also be imprisoned for up to 7 years.

Page | 54

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ExPress Notes

ACCA F4 (GLO) Corporate and Business Law

KEY KNOWLEDGE Wrongful Trading Under these provisions directors may be held personally liable for the debts of an insolvent company if it can be established that they knowingly allowed the company to continue to trade knowing that it was not a going concern and had made no attempt to minimise the losses sustained by the company’s creditors.

(end of ExPress Notes)

Page | 55

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ACCA F4 2013 notes  

ACCA F4 2013 notes

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