Solvency, company directors’ duties and the problem of process and enforcement - A comparative study
Mansor, H. (2011). Solvency, company directors’ duties and the problem of process and enforcement - A comparative study (Thesis, Doctor of Philosophy (PhD)). University of Waikato, Hamilton, New Zealand. Retrieved from https://hdl.handle.net/10289/5851
Permanent Research Commons link: https://hdl.handle.net/10289/5851
This study examines the legal provisions in relation to creditors’ protection, particularly when the company is insolvent and seeks to compare different statutory approaches with the view of determining the best reforms for Malaysia. Three jurisdictions have been chosen; the United Kingdom, New Zealand and Australia as the basis of comparison due to similar legal history as these countries have often been referred by the Malaysian Courts to assist in the interpretation of the law. To determine the question of creditors’ protection, the thesis will address several main issues. Firstly, the thesis examines the relationship between separate legal entity and limited liability. To do so it questions the circumstances when directors will be personally liable for the debt of the company and the extent to which they are liable. The issue will be explored in the light of the shareholder primacy theory which forms the basis of company law. Directors’ duties therefore are developed with the view of protecting shareholders; and the failure to do so will cause directors to be personally liable. The thesis also considers the arguments for stakeholders’ theory which mandates directors to take account of other stakeholders’ interests in addition to shareholders’ when making decisions. Secondly, it also investigates on how the piercing of the corporate veil and imposing liability on directors will provide protection to creditors especially when the company is insolvent. In order to do so, it scrutinizes the legislative initiatives on the issue as well as the judicial response to the statute. The thesis traces the reforms of the historical doctrine of capital maintenance and the use of solvency test as a replacement to protect creditors. It also provides comprehensive analyses of the law on the issue of remedies in order to ascertain whether the current legal provisions are adequately to protect creditors.
University of Waikato
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