Friday, 25 May 2018

New Zealand: Members' Bill seeks to provide clarity concerning 'dry shares'

One of the members' bills recently successful in the ballot of those to be introduced was the Companies (Clarification of Dividend Rules in Companies) Amendment Bill. The Bill was introduced by Todd Muller MP - a copy is available here. The explanatory note can be viewed here. The purpose of the Bill is to make it clear that a company's constitution can create a class of shares in which some carry the right to dividends and others (known as 'dry shares') do not. This will be done through amending section 53 of the Companies Act 1993. The explanatory note accompanying the Bill cites as the classic example of such dry shares as being those belonging to a shareholder in a cooperative where the shareholder no longer supplies the cooperative.

Thursday, 24 May 2018

UK: England and Wales: the scope of corporation tax relief for a predecessor company's losses

In 2009, Leekes Ltd acquired the entire share capital of another company, Coles of Bilston Ltd, with the Coles business being incorporated into that of Leekes. Coles had been loss making and Leekes was entitled under tax legislation to offset those losses against its trading income (see, now, section 944 of the Corporation Tax Act 2010).

The question for the Court of Appeal in a judgment given yesterday - Leekes Ltd v HM Revenue & Customs [2018] EWCA Civ 1185 - was whether these losses could be offset against (a) the trading income of the whole Leekes business or (b) the trading income derived from the business acquired from Coles. The court was unanimous in holding that it was (b). Lord Justice Henderson observed that this:
... is the only construction which the ordinary and natural meaning of the statutory language can bear, and it produces an obviously sensible result. If the construction advanced by Leekes [(a)] were correct, the result would be to place the successor company in a more favourable position than the predecessor, because it would enable the successor to utilise the accumulated losses of the predecessor against trading income derived from a business which the predecessor had never carried on. It is hard to think of any sensible reason why Parliament should have wished to confer such an advantage on the successor to a trade, and (had it done so) there would have been obvious potential for tax avoidance and the development of a thriving secondary market in corporate trading losses" (para. [28]).

Wednesday, 23 May 2018

Ireland: Central Bank consults on governance requirements for investment firms and market operators

The Central Bank has published a second consultation paper concerning the corporate governance requirements for investment firms and market operators: see here (pdf). The consultation paper seeks to update the current requirements to deal with the consequences of MiFID II including the European Union (Markets in Financial Instruments) Regulations 2017 and the joint EBA and ESMA Guidelines on the assessment of the suitability of members of the management body andkey function holders.

Tuesday, 22 May 2018

UK: England and Wales: 'the purpose' and transactions defrauding creditors

Judgment was given today by the Court of Appeal in JSC BTA Bank v Ablyazov & Anor [2018] EWCA Civ 1176. The judgment is noteworthy because of what is said about the operation of section 423 ("Transactions defrauding creditors") of the Insolvency Act 1986. Section 423 applies only where a transaction has been entered "for the purpose - (a) of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him, or (b)of otherwise prejudicing the interests of such a person in relation to the claim which he is making or may make" (emphasis added). With regard to "the purpose", Lord Justice Leggatt observed:
I agree with the point made in McPherson's Law of Company Liquidation (4th Edn, 2017), para 11-116, that there is no need to put a potentially confusing gloss on the statutory language. It is sufficient simply to ask whether the transaction was entered into by the debtor for the prohibited purpose. If it was, then the transaction falls within section 423(3), even if it was also entered into for one or more other purposes. The test is no more complicated than that" (para. [14]). 

Monday, 21 May 2018

UK: Labour Party launches review of the auditing and accounting regulatory framework

The Labour Party has announced that it has commissioned a review, by Professor Prem Sikka, of the regulatory framework for auditing and accounting: see here. Professor Sikka has been asked to develop proposals to "reform and reinvigorate" the regulatory system.

Friday, 18 May 2018

Australia: launch of the Australian Asset Ownership Stewardship Code

The Australian Asset Owner Stewardship Code was published yesterday by the Australian Council of Superannuation Investors: see here (pdf). Further information about this new Code is available in the accompanying FAQs (here, pdf) and media release (here, pdf).

Thursday, 17 May 2018

Norway: NUES consults on changes to the Norwegian corporate governance code

The Norwegian Corporate Governance Board (NUES) is consulting on proposed changes to the Norwegian corporate governance code: see here (pdf, English).

UK: Lords ad hoc committee to examine the Bribery Act 2010

An ad hoc, post-legislative scrutiny committee has been set up by the House of Lords to consider the Bribery Act 2010: see here. The committee's membership was announced today: see here. The chair will be Lord Saville of Newdigate, a former Supreme Court Justice. In very broad terms, the committee will explore whether the Act has achieved its objectives in terms of convictions and awareness of the Act among small and medium sized enterprises: see here.

Wednesday, 16 May 2018

UK: BEIS/WP Committees publish joint second Carillion report

The second, joint report concerning the collapse of Carillion plc has been published by the Work and Pensions and Business, Energy and Industrial Strategy committees: see here or here (pdf). Various recommendations are made, including referring the statutory audit market to the Competition and Markets Authority; a focus on a more active and interventionist approach in the next edition of the UK Stewardship Code; and a more prominent role for regulators, including the Financial Reporting Council which, it is argued, should become more proactive and aggressive.

Tuesday, 15 May 2018

Canada: corporate governance reform - Bill receives Royal Assent

The Bill introduced to make changes to the governance framework - by amending the Canada Business Corporations Act, the Canada Cooperatives Act, and the Canada Not-for-profit Corporations Act - has become law having received Royal Assent earlier this month: see here. A copy of the new Act is available here. A short press release, from the Canadian Government, has also been published: see here.

Monday, 14 May 2018

Ireland: a governance code for charities

The Charities Regulator has announced that it will, later this year, publish a governance code for charities: see here (pdf). The creation of such a code was one of the principal recommendations made in the Report of the Consultative Panel on the Governance of Charitable Organisations (herepdf).

UK: ACCA publication - the tenets of good corporate governance

The ACCA has published a report titled Tenets of Good Corporate Governance: see here (pdf). To quote directly from it, the report "...sets out key issues for companies to think about when considering their long term business model and strategy. It examines the interrelation between businesses and the context in which they operate, encouraging them to embrace good practice that facilitates long term growth".

Friday, 11 May 2018

UK: Deloitte LLP fails to be re-appointed at SIG plc annual general meeting

The annual general meeting of SIG plc was held yesterday: see here (pdf). Of note - because it is rare to see - is the rejection by the shareholders of the resolution to re-elect the external auditors (Deloitte LLP). The shareholders voted: 108,962,143 (For); 395,827,122 (Against); and 371,198 (Withheld). The board has announced that a tender of the audit engagement will now take place.

UK: First PRA/FCA case under the Senior Managers Regime - Mr James Staley and what is expected of a CEO

The first case brought by the Prudential Regulation Authority and Financial Conduct Authority under the Senior Managers Regime has seen the chief executive of Barclays Group, Mr James Staley, fined £642,430. Mr Staley was found to have breached Individual Conduct Rule 2 - the requirement to act with due skill, care and diligence - in respect of his attempt to identify the author of an anonymous letter, purporting to be from a Barclays shareholder, in which various allegations were made (some of which concerned Mr Staley). A copy of the final notice is available here (pdf) and this contains the following observations on the expectations of the CEO (paras. 4.3 to 4.6):

The CEO is the most senior executive director on the board, and therefore has a crucial role to play in ensuring that their firm meets the standards expected of it. A CEO is expected to identify conflicts of interest and be appropriately alert to potential whistleblowing situations. As such, they are expected to demonstrate the highest standard of integrity and to act with due skill, care and diligence in carrying out their functions.

The CEO has responsibility for proposing strategy to the board and for delivering the strategy as agreed. Further, the CEO has, with the support of the executive team, primary responsibility for setting an example to the firm’s employees, and communicating to them the expectations of the board in relation to the firm’s culture, values and behaviours. 

Further, a CEO of an authorised firm must comply with ICR 2, acting with due skill, care and diligence at all times in performing their role. The standard is an objective one and requires a CEO to exercise the degree of due skill, care and diligence as a reasonable CEO would exercise in like circumstances.

The steps that a person needs to take to comply with ICR 2 will be informed by, amongst other things, the circumstances, the specific nature of their role and their experience. Given the crucial role of the CEO, the expectations of the CEO will be more exacting than for other employees of their firm. This is consistent with the CEO’s responsibility for setting an example to the firm’s employees. For example, where a CEO is faced with circumstances that might undermine the impartiality of their judgement, they need to ensure that appropriate standards of probity and governance are maintained".  

UK: England and Wales: High court sanctions Lloyds ring-fencing scheme

Earlier this month, in Lloyds Bank Plc & Ors R(ring-fencing transfer scheme) (Rev 1) [2018] EWHC 1034 (Ch), Mr Justice Hildyard sanctioned the proposed ring-fencing transfer scheme for Lloyds Bank. This is the second time that the High Court in England and Wales has done so; the first was in March: Re Barclays Bank Plc And Woolwich Plan Managers Ltd, Re [2018] EWHC 472 (Ch), [2018] WLR(D) 158.

In this first decision the Chancellor noted various factors that ought to be taken into account by the court in exercising its discretion, one of which was:
The design of a ring-fencing transfer scheme is a matter for the board of the bank concerned. There may be many possible approaches to the design of a statutorily-compliant ring-fencing transfer scheme that will affect stakeholders differently. The choice is for the directors of the bank concerned, acting properly in accordance with their duty under section 172(1) of the Companies Act 2006 (which is to act in the way they consider, in good faith, would be most likely to promote the success of the company having regard to matters including those specified in that subsection)."

The Lloyds decision is of interest because Mr Justice Hildyard chose to add what he termed a "reservation" or "gloss" in respect of the courts' acceptance of the judgment of directors in proposing a particular scheme:

I accept that the court will give considerable latitude to commercial decisions of a board which has appeared properly to address the correct question and acted in accordance with its duties under statute and common law. I accept, more particularly, that where there are different designs of scheme, none of which leaves people materially adversely affected, or no more so than is reasonably necessary to achieve the ring-fencing purpose, the choice is for the promoters (and thus the directors) to make.

However, I would wish to emphasise that when the second part of the Statutory Question [see section 109A(4) of the Financial Services and Markets Act 2000] is being addressed, the question is not whether any adverse effect is greater than is reasonably necessary given the constraints of the particular scheme design, but whether that adverse effect is such as to be greater than reasonably necessary in order to achieve the statutory purpose. If the adverse effect appears material, and it appears likely that another scheme design would have avoided the adverse effect, that may call in question the scheme design chosen; and the court would not be required to accept the directors' choice (albeit that it would then also have to consider potential adverse effects of other designs). In other words, the greater the adverse effect, the more justified the scrutiny of the scheme design, and the less may be the readiness of the Court to accept the commercial judgment of the directors". 

Wednesday, 9 May 2018

Zimbabwe: copy of the Companies and Other Business Entities Bill now available

A copy of the Companies and Other Business Entities Bill, which contains Zimbabwe's new company law framework, is now available on the Parliament website: see here.

Friday, 4 May 2018

IOSCO: consultation report - good practices for audit committees in supporting audit quality

The International Organisation of Securities Commissions has published a consultation report titled Good Practices for Audit Committees in Supporting Audit Quality: see here (pdf). The report, as its title suggests, proposes various features that an audit committee should have in order to promote and support audit quality.  These include the qualities, qualifications and experience of audit committee members.

Australia: ASX consults on fourth edition of its corporate governance principles and recommendations

The ASX Corporate Governance Council has begun a consultation in respect of the publication of a fourth edition of its corporate governance principles and recommendations. The documents published as part of the consultation are available here.

Tuesday, 1 May 2018

UK: QCA publishes new edition of its corporate governance code

The Quoted Companies Alliance has published an updated edition of its governance code for small and mid-size quoted companies in the UK: see here. Copies of the code are not freely available.

UK: BEIS consultation paper - reform of limited partnership law

The Department for Business, Enterprise and Industrial Strategy has published a consultation paper seeking views on various proposals concerning limited partnerships (including Scottish limited partnerships) the aim of which is reduce the risk of abuse: see here (pdf). The paper notes, for example, the National Crime Agency finding of a disproportionately high volume of suspected criminal activity involving Scottish limited partnerships.

UK: The Companies (Disclosure of Address) (Amendment) Regulations 2018

The Companies (Disclosure of Address) (Amendment) Regulations 2018 were made at the end of last month and are now in force: see here. The purpose of the Regulations is to amend the Companies (Disclosure of Address) Regulations 2009 in order to introduce a new confidentiality regime in respect of residential addresses held on the register of companies. No longer will it be necessary for an individual to show that that there is a serious risk of violence of intimidation arising from a company's activities in order to remove from the public register their residential address. Further information is available in the accompanying explanatory memorandum (herepdf) and announcement from Companies House.

Tuesday, 17 April 2018

UK: The Kingman review of the Financial Reporting Council - objectives and scope published

The terms of reference for the Kingman review of the Financial Reporting Council have been published: see here (pdf). The review has been given two objectives: to enable the FRC to "stand as a beacon for the best in governance, transparency and independence" and to ensure that it is "fit for the future". The scope of the review includes the FRC's objectives, governance and transparency; its independence (including conflicts of interest); and its impact, resources and capacity.

Wednesday, 11 April 2018

India: corporate social responsibility committee - membership and terms of reference

The membership of the committee formed by the Ministry of Corporate Affairs to review the corporate social responsibility provisions of the Companies Act, 2013, has been announced alongside publication of the committee's terms of reference: see here (pdf).

Tuesday, 10 April 2018

UK: FRC outlines new approach to the monitoring of the largest audit firms

The Financial Reporting Council has today published preliminary information about its new approach to the monitoring of the 'Big Six' audit firms (as part of its recently announced three year strategy): see here. This will include, as part of the FRC's examination of firms' leadership and governance, the articulation of expectations regarding the skills, experience and attributes of candidates for Heads of Audit and Ethics partner positions as well as independent non-executives. The FRC will provide firms with feedback on how well appointees meet these expectations and, because it does not have specific powers to do so, will rely on firms' cooperation.

Monday, 9 April 2018

UK: Commons Treasury Committee launches economic crime inquiry

The House of Commons Treasury Committee has begun an inquiry exploring certain aspects of economic crime: see here. More specifically, there two broad areas for examination have been identified: (1) anti-money laundering and sanctions (including, for example, the scale of money laundering and the impact of the regulatory regime); (2) consumers and economic crime (including, for example, the effectiveness of financial institutions in combating economic crime and the security of consumer data).

Friday, 6 April 2018

Zimbabwe: company law reform - the Companies and Other Business Entities Bill, 2018

The Companies and Other Business Entities Bill, which will set out Zimbabwe's new company law framework, has been published.  A copy of the Bill is not yet available on the Parliament website (it ought to appear here in due course). A copy of the memorandum accompanying the Bill has, however, been published on the Veritas website - see here (pdf) - and from this it is possible to get a good sense of the changes being proposed. With regard to directors' duties, it would seem that Zimbabwe will be adopting a provision very similar to the duty to promote the success of the company found in section 172 of the UK Companies Act 2006 (see what is said about clause 186 in the memorandum).

Public hearings in respect of the Bill are now underway: see here.

Update (9 May 2018) - a copy of the bill is now available: see here.

IOSCO: regulatory reporting and public transparency in the secondary corporate bond markets

The International Organisation of Securities Commissions has published its final report on regulatory reporting and and public transparency in the secondary corporate bond markets: see here (pdf). In summary, the report provides recommendations designed to give regulators better access to information and to facilitate better informed investment choices.

Japan: consultation on corporate governance code revisions and new guidelines on investor engagement

The Council of Experts on Japan’s Corporate Governance and Stewardship Codes is proposing revisions to the Governance Code and the introduction of Guidelines on investor engagement, the latter intended to support the application of the Stewardship Code: see here (pdf).

UK: England and Wales: conviction for providing false information to the registrar of companies

Companies House is reporting what it suggests is the first prosecution under section 1112 of the Companies Act 2006: see here. Under section 1112 an offence is committed where a person knowingly, or recklessly, provides the registrar with a document that is misleading, false or deceptive in a material particular. The case concerned an individual, Kevin Brewer, who as part of the incorporation process gave the names of directors and shareholders who had not consented to be involved in the companies.

[On a related note, Companies House has, this week, published its business plan for 2018/19: see here (pdf)].

Wednesday, 28 March 2018

UK: FRC publishes its strategy 2018-2021

The Financial Reporting Council has published its strategy for the next theee years: see here (pdf). As well as confirming the forthcoming review of the UK Stewardship Code, the document also sets out the FRC’s view that it is time to “test the current stautory audit model and ask whether it can be made more effective as currently established, and how audit should be developed to serve the public interest in the future, taking account of changing business models, new technology and stronger public expectations”.

Thursday, 22 March 2018

UK: The Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) (Amendment) Order 2018

The Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) (Amendment) Order 2018 came into force earlier this week: see here or here (pdf). The accompanying explanatory memorandum is available here (pdf). The Order seeks to remove an area of uncertainty regarding peer-to-peer lending: whether a business borrowing funds this way might be regarded as accepting deposits "by way of business" in circumstances requiring the authorisation of the Financial Conduct Authority and Prudential Regulation Authority. The Order sets out when such authorisation is not required by making an amendment to the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001.

Tuesday, 20 March 2018

UK: Government consultation - insolvency and corporate governance

The Government has published a consultation paper titled Insolvency and corporate governance: see here (pdf). The paper contains proposals the aim of which, to quote the Government, is to "reduce the risk of major company failures occurring through shortcomings of governance or stewardship, and to strength the responsibilities of directors of firms when they are in or approaching insolvency" (p. 5).

Amongst the proposals contained in the paper is one designed to better hold parent company directors to account in respect of the sale of an insolvent subsidiary that has an adverse impact on the interests of the subsidiary's creditors. And, amongst the questions asked, is this one: are stronger governance and transparency measures required in relation to the oversight and control of complex group structures?  The paper also asks: what more could be done through a revised Stewardship Code or other means to promote more engaged stewardship of UK companies by their investors, including the active monitoring of risk? It also seeks views on this question: whether some directors are obtaining and using professional advice without a proper awareness of their duties as directors, and in particular the requirement to exercise independent judgement.

Monday, 19 March 2018

UK: AIM Rules for Companies - updated March 2018 edition published

The new AIM Rules for Companies (March 2018) have been published: see here (marked-up, pdf) or here (clean, pdf). These Rules require companies to 'comply or explain' against a 'recognised' corporate governance code. This requirement takes effect from 28 September 2018, although all new applicants from 30 March will be required to state the code they intend to follow and will have until 28 September 2018 to comply (or explain).

Friday, 16 March 2018

UK: FPC statement on the risks of crypto-assets

The Financial Policy Committee published a statement today covering, amongst other things, the risks of crypto-assets to UK financial stability: see here (pdf). To quote directly from the Committee's statement:
The Committee recognises the potential benefits of the technologies underlying crypto-assets and of their potential to create a more distributed and diverse payments system ... The FPC judges that existing crypto-assets do not currently pose a material risk to UK financial stability ... The FPC will act to ensure the core of the UK financial system remains resilient if linkages between crypto-assets and systemically important financial institutions or markets were to grow significantly. In the event that one or more crypto-assets were likely to become widely used for payments, or as an asset intended to store value, the FPC would require current financial stability standards to be applied to relevant payments and exchanges."

Thursday, 15 March 2018

UK: Banking Standards Board publishes its 2017/18 annual review

The Banking Standards Board has published its 2017/18 annual review: see here. This includes the results of the BSB's survey of behaviour, competence and culture in UK banks and building societies. The survey received over 36,000 responses, from those working in 25 institutions, with 750 people taking part in focus groups.  Just over a quarter of respondents reported that working in their organisation was having a negative impact on their health and well-being.  49% of employees said that people in their organisation did not get defensive when their views were challenged; 27% reported that they would be worried about negative consequences if they raised concerns about the way their organisation operated.

Wednesday, 14 March 2018

UK: FCA discussion paper - transforming culture in financial services

The Financial Conduct Authority has published a discussion paper titled Transforming culture in financial services: see here (pdf). To call it a discussion paper is, perhaps, misleading: the paper is, in fact, a diverse range of essays on the topic of culture.

Jonathan Davidson, the FCA's Director of Supervision (Retail and Authorisations), begins the paper foreword: "Culture in financial services is widely accepted as a key root cause of the major conduct failings that have occurred within the industry in recent history, causing harm to both consumers and markets".

Tuesday, 13 March 2018

BIS report: central bank digital currencies

The Bank for International Settlements has published a report from two of its committees - the Committee on Payments and Market Infrastructure and the Markets Committee - on central banks digital currencies: see here (pdf). The report is intended to provide a starting point for further discussion and contains an overview of the implications of central bank digital currencies for payments, monetary policy and financial stability.

Monday, 12 March 2018

IFIAR publishes annual inspection findings survey

The International Forum of Independent Audit Regulators has published its annual inspection findings survey: see here (pdf). This year's survey was based on reports from 33 members and the review, in total, of 918 audits of public interest entities. The survey reports that 40% of the audits inspected had at least one "finding", i.e., a significant failure to satisfy the requirements of auditing standards.

Friday, 9 March 2018

Guernsey: company wound-up for failure to provide member with accounts

The Royal Court (Ordinary division) gave judgment towards the end of February in In the Matter of Canargo Ltd (Judgment 13/2018). A copy of the judgment is available here (but note that registration, free of charge, is required to access the judgment). The decision is of interest because it appears to be the first application before the Royal Court to place a company into liquidation on the ground of its failing to provide a member with a set of accounts as required by section 251 of the Companies (Guernsey) Law, 2008. The application was granted.

Thursday, 8 March 2018

UK: women on FTSE100 boards

The Department for Business, Energy and Industrial Strategy has today - International Women's Day - published data on the proportion of women on FTSE100 boards: see here. The headlines include: there are 309 women on FTSE100 boards; a quarter of FTSE350 board positions are occupied by women; and FTSE100 companies are on track to have a third of board positions occupied by women by 2020.