bluuebunny/crossref_metadata_2025_split huggingface dataset:
Duty Not To Accept Benefits From Third Parties
Authors: Lloyd Tamlyn , Marcus Haywood 
Published: March 2021

Abstract
One of the consequences of the common law principle that a director must avoid conflicts of interest was that a director could not have an interest in a transaction with the company unless he had disclosed all material facts about the interest to the members and they had approved or authorized his having the interest. Authorization by the board was not sufficient. If the other party to the transaction had notice of the irregularity, the company might rescind the contract. The director might also be liable for breach of duty and under a duty to account for profits obtained by reason of such dealings.
The Company’s Remedies for Breach of Directors’ General Duties
Authors: Zacaroli Antony 
Published: March 2021

Abstract
The Companies Act 2006 has effected no change to the remedies which lie against a director for breach of duty. Section 178(1) provides that ‘the consequences of breach (or threatened breach) of s 171–7 are the same as would apply if the corresponding common law rule or equitable principle applied’, and s 178(2) provides that the duties set out in ss 171–3 and 175–7 ‘are, accordingly, enforceable in the same way as any other fiduciary duty owed to a company by its directors’. No separate express provision is made in respect of the duty to exercise reasonable care, skill, and diligence (set out in s 174), but it is clear that the remedies for breaches of that duty are those provided by the common law.
Pension Schemes
Authors: Legge Henry 
Published: March 2021

Abstract
The first decade of the new millennium saw a huge increase in the cost to companies of providing pensions for their current and former employees. Schemes which had previously been assessed as well funded and in surplus became underfunded and in deficit. The costs of funding this deficit and the accruing liabilities of the scheme can often be a very significant drain on a company’s cash flow and resources.
Investigations and Public Interest Winding-Up Petitions
Authors: Davis Glen 
Published: March 2021

Abstract
Serious misconduct, or breaches of duty by a company or its directors affecting the company’s relationships with members of the public, may trigger an investigation by the Secretary of State into the manner in which the company’s business has been conducted, or even the appointment of inspectors and publication of a formal report. In an appropriate case, the Secretary of State or a regulatory authority may petition the court to wind the company up on the basis that it is ‘just and equitable’ to do so in the public interest. Such a liquidation need not be predicated on insolvency. A winding-up order terminates the directors’ powers of management and is the logical response to misconduct or mismanagement by directors which is revealed by an inspector’s report.
Introduction
Authors: Mallon Christopher , Waisman Shai Y , Schrock Ray C 
Published: March 2021

Abstract
As we said in the introduction to the first edition, and as continues to be the case, two systems of law dominate the world debt markets—English law and New York law. Any company of any size, from pretty well anywhere in the world that is looking to raise finance, will find itself heading either to London or New York capital markets and the debt instruments that it then enters into will be governed by the laws of one or other of these jurisdictions.
Giving Effect to Debt Compromise Arrangements–Binding The Minority or out of The Money Classes of Creditors
Authors: Mallon Christopher , Waisman Shai Y , Schrock Ray C 
Published: March 2021

Abstract
When it comes to remedies at a pre-insolvency proceeding stage, it can be said that England and the US are two countries separated by a common law. In particular, the hardening of common law and equitable rules into clear statements that could be set out in a text book in the nineteenth century in England does not appear to have been replicated to the same extent in the US. England has a strict system of precedent and very clear notions of equitable doctrines and statutory interpretation, whereas the US has a looser approach.
Venue and Forum Selection in the US and UK
Authors: Mallon Christopher , Waisman Shai Y , Schrock Ray C 
Published: March 2021

Abstract
Most bankruptcy cases in the US are heard by specialized bankruptcy courts, which are vested with authority to hear such cases by the US district courts. The United States Congress granted US district courts original and exclusive jurisdiction over—that is, the authority to hear—US bankruptcy cases. However, district courts may (and uniformly do) refer such cases and proceedings to the bankruptcy courts in their respective districts, often pursuant to standing referral orders (in other words, the referral to the bankruptcy courts is automatic).
Employees and Trade Unions
Authors: Mallon Christopher , Waisman Shai Y , Schrock Ray C 
Published: March 2021

Abstract
At first blush, the UK and US case law and statutory regimes that are applicable in insolvency to employees and the unions that represent them appear to be quite different. However, a more thorough review reveals that the goal in both jurisdictions is the same: to reduce the harsh impact of insolvency on those who are usually the least at fault for the subject company’s predicament’its employees. Indeed, among other similarities, both systems provide for priority in right of payment for a portion of the compensation due employees, have stringent notice requirements in the event of termination or rejection of collective bargaining agreements, and require information sharing and good faith negotiations. The underlying objective of each system is to level the playing field and to incentivize the employer and the employees to reach a consensual solution to avoid the risks and burdens mandated by each regime. Whether the legislators, administrators, and jurists in either jurisdiction have gone too far or not far enough in developing tools for one side or the other will depend on the reader’s perspective.
Pari Passu Sharing
Authors: Calnan Richard 
Published: March 2021

Abstract
This chapter discusses the pari passu sharing principle in insolvencies, including the recent developments in determining the scope of the anti-deprivation principle. The effect of contractual provisions to divest the debtor’s interest in property on insolvency or increase a creditor’s rights are discussed. Exceptions to the pari passu principle are reviewed. It considers the importance of distinguishing between personal rights and proprietary rights in an insolvency. It discusses the limits on proprietary rights in an insolvency.
Retaining or Recovering A Proprietary Interest by Operation of Law
Authors: Calnan Richard 
Published: March 2021

Abstract
This chapter considers the circumstances in which a person can retain or recover a proprietary interest by operation of law. It discusses the importance of intention in deciding whether title is retained at common law. It explains how rescission can be used to recover title, and the circumstances in which title is retained in equity by operation of law. It discusses how money is transferred, and its distinction from other assets. It also considers the unpaid vendor’s lien.
Preferences (Insolvency Act 1986, Sections 239 and 340)
Authors: Parry Rebecca , Shivji Sharif 
Published: March 2021

Abstract
Preference laws have long played a part in maintaining creditor entitlements in the period leading up to the commencement of formal insolvency proceedings. The general rationale of the preference provisions of the Insolvency Act 1986 is that if in the period leading up to insolvency proceedings the debtor.
Disclaimer
Authors: Ayliffe James 
Published: March 2021

Abstract
The powers of liquidators and trustees in bankruptcy to disclaim onerous property may be categorized as avoidance powers, in that they enable a transaction that a debtor has entered into to be set aside. They are, however, unconventional avoidance powers in that they do not enable the augmentation of the assets available for creditors: rather they are aimed at the disposal of assets. Moreover, it is perhaps stretching the definition of the term ‘avoidance provision’ to include the right of disclaimer, which is an administrative provision in nature, aimed at enabling the office holder to complete the administration of the liquidation or bankruptcy without being burdened by onerous property, such as unprofitable contracts or assets that are of no value to the estate. However, it may be argued that a further aim of the powers is in accordance with the general aims of many of the avoidance provisions: namely, to prevent needless depletion of the debtor’s assets by the continuance of contracts that are unprofitable or that give rise to liabilities.
Unenforceability of Liens on Books, Papers, and Other Records (Insolvency Act 1986, Sections 246 and 349)
Authors: Parry Rebecca 
Published: March 2021

Abstract
The smooth functioning of insolvency proceedings demands that the office holder has at his disposal all relevant documents and consequently an order may be obtained for the delivery up to the office holder of books, papers, and records relating to the debtor. Any lien or other right that gives a person possession is unenforceable against the office holder, so as to prevent these rights from being used by the possessor to resist having to surrender the property concerned to the office holder. This provision does not, however, apply where the person holds documents of title to property under a lien. This exemption is discussed further at paragraphs 8.04 et seq.
Transactions Defrauding Creditors (Insolvency Act 1986, Section 423)
Authors: Ayliffe James 
Published: March 2021

Abstract
Section 423, which is applicable in both corporate and personal insolvency, acknowledges that transactions that are prejudicial to creditors may be entered into at any time, and not just in the period leading up to insolvency. Unlike the other transaction avoidance provisions of the Insolvency Act 1986, there is no requirement that the transaction should have occurred within a specified time period leading up to winding up or bankruptcy in order to be voidable. Nor indeed is it required that there is a formal insolvency or even that the debtor should have been insolvent at the time of the transaction or subsequently.
Pensions (Corporate Insolvency Only)
Authors: Ayliffe James 
Published: March 2021

Abstract
Transaction avoidance issues may arise in relation to pensions in the context of corporate insolvency. However, such issues are of a rather different nature from those that arise in the context of bankruptcy and are discussed in Chapter 14. In the bankruptcy context, the issue is avoidance of transactions by the bankrupt (in the form of contributions to pension schemes) that have diminished his estate. Avoidance is therefore sought for the benefit of creditors. In the present context, the issue is avoidance of transactions by the insolvent company or others that have diminished the funds of an occupational pension scheme in respect of which the insolvent company is the employer company. Avoidance is therefore sought for the benefit of the members of the scheme rather than the general body of creditors of the company.Moreover, if the company has received assets under the transaction in question and avoidance of the transaction is sought with a view to recovering such assets, such avoidance will operate to the detriment of the general body of creditors. The relevant provisions and principles are explained more fully below after a few words about pension scheme deficits and the Pensions Regulator.
Avoidance of Floating Charges (Insolvency Act 1986, Section 245: Corporate Insolvency Only)
Authors: Parry Rebecca 
Published: March 2021

Abstract
A floating charge, of course, increases the likelihood upon the winding up of the debtor that a creditor will receive payment for sums that the creditor has advanced. Conversely, the existence of a charge over property reduces the likelihood of payment for creditors, such as those who supplied the property in the first place. Limitations have accordingly been placed on the availability of such charges in order to ensure that any creditor obtaining the advantage of this method of security has earned the priority that it confers. Section 245, which applies only in the context of liquidation and administration, provides that any floating charge that is created within a specified period of the onset of insolvency is void except to the extent that the charge holder advanced value to the debtor at the same time as, or after, the creation of the charge. Unlike many of the other avoidance provisions, the operation of section 245 is automatic and does not depend on an application being made by the liquidator or administrator. An exception to the operation of section 245 applies in the context of financial collateral arrangements.
Other Laws Enabling Transaction Avoidance
Authors: Parry Rebecca 
Published: March 2021

Abstract
A wide range of powers that may usefully supplement the transaction avoidance provisions of the Insolvency Act 1986 are available. This is an issue that has been raised throughout this book, with possible areas of overlap between remedies being considered in relation to each of the transaction avoidance provisions. In addition, relevant laws which appear in the Companies Act 2006 were considered in Chapter 18, and the hugely important misfeasance action was considered in Chapter 19.
EMU as Constitutional Law
Authors: De Witte Bruno 
Published: March 2021

AbstractThe creation of Economic and Monetary Union (EMU) was an important enterprise of constitutional engineering and expressed a belief in the capacity of constitutional law to accomplish economic objectives. The Treaty of Maastricht was prepared by not one but two intergovernmental conferences, namely one on ‘European Political Union’ and another one on ‘European Monetary Union’. The negotiators participating in the latter of the two conferences were given a free hand in drafting a lengthy set of norms that were eventually included in the Maastricht Treaty, either in the body of the new Treaty or in detailed Protocols. At the moment of entry into force of the Maastricht Treaty, all EMU law was therefore constitutional law of the European Union, and still today, when many further norms of secondary law have been enacted, an important part of EMU law is still of a formally constitutional nature, by being contained in the text of the Treaty on the Functioning of the European Union (TFEU) and its annexed Protocols. There is thus a consistent body of EMU constitutional law, which is the object of this contribution.
The Institutional design of Financial Supervision and Financial Stability
Authors: Payne Jennifer 
Published: March 2021

AbstractSince the inception of the European project, the creation of a single financial market has been a core policy goal. The ambition of the project subsequently expanded to include both economic and monetary union (EMU), a plan which came to fruition with the establishment of a single currency for euro area countries at the turn of the century. EMU has been said to be a ‘cornerstone of the European Union’, and may be regarded as a political as much as an economic endeavour.
Foreign-exchange operations of the ECB and exchange-rate policy
Authors: Thiele Alexander 
Published: March 2021

Abstract
According to Article 127(1) TFEU, it is the core purpose of the European System of Central Banks (ESCB) (with the European Central Bank (ECB) at the top) to maintain price-stability within the European Monetary Union (EMU). It is this task that is usually referred to, where the ‘monetary mandate’ or the ‘monetary policy’ of the ECB is mentioned. However, though this monetary mandate is not only the most prominent but most certainly also the most disputed task of the ESCB–especially since the financial and euro crisis–it is by no means the only task transferred onto the ESCB (respectively the ECB) by the Member States. According to Article 127(2) TFEU, the basic tasks to be carried out by the ESCB in actual fact include the conduct of foreign-exchange operations and thus the ‘foreign policy’ relations of the euro area and the euro with other currency areas (mainly states) and currencies. When creating the EMU, however, it was highly disputed whether the ECB or the Council should be the competent authority to conduct or rather to decide on such operations.
The Meaning of Insolvency
Authors: Anderson Hamish 
Published: March 2021

Abstract
Insolvency proceedings relate to insolvent companies. Insolvency is therefore a central concept and the law requires a test of insolvency which can be used to determine whether a company is amenable to such proceedings and to regulate the availability of certain other rights and remedies concerning transaction avoidance which apply to protect the integrity of an estate which is the subject of insolvency proceedings. It is a curiosity of the Act that despite its title it provides no definition of ‘insolvency’ for these purposes but refers instead to ‘inability to pay debts’. The advantage of this looser terminology is that it embraces both cash-flow (or ‘commercial’) and balance sheet measures of a company’s financial difficulty.
English Corporate Insolvency Proceedings
Authors: Anderson Hamish 
Published: March 2021

Abstract
There are currently three forms of corporate insolvency proceeding in English law. Liquidation (whether compulsory or voluntary) is a terminal proceeding designed to realize the assets of the debtor company and distribute the realized value amongst creditors according to their respective priorities, following which the company is dissolved. Administration and company voluntary arrangements (CVA) (not mutually exclusive and sometimes used together) are two different forms of proceeding which are primarily designed to preserve going concerns. Although the three procedures are constituted as standalone procedures under the Act, there is considerable room for movement from one procedure into another in order to achieve an optimal outcome for creditors.
Administration
Authors: Anderson Hamish 
Published: March 2021

Abstract
The defining characteristic of administration is the imposition of a temporary stay on creditor remedies—usually referred to as the ‘moratorium’. As originally conceived the procedure was merely a means to an end and not an end in itself. However, administration was radically recast by amendments made to the Act by the Enterprise Act 2002 which enabled administrators to make distributions to creditors and for the company to be dissolved following administration without the need for a liquidation. In consequence of those changes, administration can take one of two forms. First, and as before, it may be used simply to protect the insolvent estate whilst a rescue or a more advantageous realization of assets takes place, following which the company will either survive or it will be wound up in accordance with the procedures considered in the previous chapter.
Definitions and Interaction between Duties
Authors: Rosemary Langford 
Published: March 2021

Abstract
The purpose of this chapter is to lay the foundation for critical analysis in subsequent chapters, in providing an overview of the key aspects of regulation of conflicts in each jurisdiction. The interaction between statutory and general law duties is scrutinized and the importance of coherence between these duties is discussed. This topic has attracted considerable academic attention and the model of statutory directors’ duties in the Companies Act 2006 (UK) has highlighted the benefits of an integrated structure of directors’ duties. The scope of the term ‘director’ in each jurisdiction is outlined. In this respect, ‘directors’ are not limited to those who are properly appointed but can extend to others. Moreover, duties vary depending on the type of director involved.
Conflicts of Duties
Authors: Rosemary Langford 
Published: March 2021

Abstract
A key facet of the duty to avoid conflicts (the conflicts rule) is the avoidance of unauthorized conflicting duties. This principle applies where a director or other fiduciary faces a conflict between inconsistent duties. In the corporate setting this generally occurs when one person is on the board of two companies with different interests. It could, however, also occur where a director is a partner or a legal or other adviser to the company and thus owes multiple sets of duties. Sections 175(7) and 176(5) of the Companies Act 2006 (UK) specifically include such conflicts. This chapter critically analyses regulation of conflict of duties, as well as relevant statutory provisions.
Corporate Opportunitie
Authors: Rosemary Langford 
Published: March 2021

Abstract
Corporate opportunities are opportunities that arise as a result of a director’s position or opportunities that are relevant to the company’s business. The taking up of corporate opportunities by directors is governed at general law principally by the duty to avoid profits (the profits rule) but also by the duty to avoid conflicts (the conflicts rule), as well as by statutory duties and corporate governance principles. This chapter first outlines the general law position given that it subsists in a number of jurisdictions and that the interpretation of the statutory duties in the Companies Act 2006 (UK) is guided by this jurisprudence. The chapter then provides detailed examination of the relevant statutory duties and includes comments on relevant corporate governance principles.
The Statutory Scheme
Authors: Coulson The Rt Hon. Lord Justice 
Published: March 2021

Abstract
The Scheme is designed as a fall-back position; if the construction contract in question does not contain the adjudication provisions set out in s108, or if it does not include the payment provisions set out in s109 of the 1996 Act, then the provisions of the Scheme apply as implied terms of the contract (s114(4)). Although many of the standard forms of construction and engineering contracts now contain specific adjudication and payment provisions that comply with the Act, so the parties do not need to have regard to the Scheme, there are many construction contracts, particularly for smaller works, which do not contain such provisions.
General Principles
Authors: Coulson The Rt Hon. Lord Justice 
Published: March 2021

Abstract
The TCC and the Court of Appeal have repeatedly made it plain that errors of fact, errors of law and procedural errors will not, without more, justify a failure to comply with the adjudicator’s decision. As a result, the grounds for impeaching such a decision are extremely limited. By far the most common attack on the decision of an adjudicator is the submission that the adjudicator had no jurisdiction to reach that decision. Because courts have been clear that a decision will be summarily enforced unless it is one that the adjudicator did not have the jurisdiction to reach, commercial necessity has led defendants to take all manner of points to support the proposition that the adjudicator had no relevant jurisdiction.
The Concept of an ‘Appeal’
Authors: Naômé Caroline 
Published: March 2021

Abstract
The appeal is a form of action by which a party claims that the Court of Justice should set aside a decision of the General Court for infringement of a rule of law. It must be directed against a decision of the GCEU. In the context of the ECJ and its case-law, it is difficult to identify what constitutes a ‘decision’ of the General Court. The object of the appeal must be the setting aside of that decision and not a re-assessment of the substantive issue, a decision on a new claim or an amendment of the grounds of the decision. The appellant must submit a criticism of the decision under appeal. Accordingly, a new plea relating to the substance of the dispute is inadmissible, unless it concerns a matter of public policy. The Court of Justice does not review assessments of fact made by the General Court.