An Anatomy of the Grounds of Lifting the Corporate Veil: Steps to Codification

Abstract

A universal benefit of incorporation is the separate entity doctrine which shields the shareholders, directors and other operators from liability for corporate omissions. By the doctrine, the company’s debts are limited to the amount shareholders have paid or have agreed to pay to the company for its shares, in case of insolvency. Consequently, their other assets, homes, pension funds, cars, yachts, private jets will remain untouched. In response to the doctrine, the law has devised various safety nets to protect creditors through company laws, insolvency laws, general anti-corruption enactments, public policy initiatives and judicial interventions. Inevitably, there has been a vast ocean of controversies as to when and why a court will pierce the veil of incorporation to hold the shareholders and directors liable beyond their unpaid equity obligations. The reasons for the controversies are myriad as values of the society change, and as new business risks emerge in retail businesses, telecommunications, oil and gas, real estate, banking, tax regimes and finance. This paper attempts to stream line the underlining principles adopted by common law, case law and statutes to pierce the veil of incorporation like where the company is a façade, a sham, an alter ego, a puppet for crime as well as issues of public policy, environmental responsibilities and national security. Statutory provisions on lifting the corporate veil have also been provided. Thus, a bold attempt has been made to provide a clear and general compass for all jurisdictions as to when courts will pierce the corporate veil to guide judges, legislatures, corporate managers, law students etc.