Companies Code Research Articles

De Wet Van 14 December 2005 Houdende Afschaffing Van De Effecten Aan Toonder

This paper covers two main issues. Firstly, the Belgian Law of 14 December 2005 concerning abolishment of Bearer Securities is discussed. Bearer Securities have always been very popular amongst Belgian investors, since they allow for easy transferability, thus facilitating financial fraud and tax avoidance. In order to discourage such fraudulent actions, and in compliance with an international trend towards a mondernisation of securities law, the Law of 14 December 2005 aims at abolishing bearer securities. A phase out procedure is installed. Starting 1 January 2008, Belgian companies will only be able to issue registered or dematerialised securities. Certain types of securities even will be automatically converted into the dematerialised form. Eventually, all bearer securities will have to be converted into either one of the remaining forms, at 1 January 2013/2014. The Law of 14 December 2005 also adapts other legislation, mostly the Belgian Companies Code, by allowing for an electronical register to be held by the company, by providing for a bona fide third party purchaser- protection regarding dematerialised securities and so on. The second part of this paper deals with the regime of the dematerialised securities, as it can be expected that this type of securities will flourish due to the abolishment of bearer securities.

Management, Decision-Making and Supervision of Belgian State Owned Enterprises: An Inefficient Patchwork?

In April 2005 the OECD published its guidelines on the corporate governance of state-owned enterprises (S0E). Its first guideline reads that . . . SOEs should not be exempt from the application of general laws and regulations . . . the legal and regulatory framework should allow sufficient flexibility for adjustments in the capital structure of SOEs. In 1991, long before the corporate governance discussions hit the European coasts, Belgium developed a proper regulatory governance framework for autonomous state-owned enterprises, including specific checks and balances. The general commercial company code is applicable for the remaining issues. However, due to constitutional developments and divergent views on industrial policy, federal and regional Parliaments modified the applicable rules of a large number of SOE's, pushing the checks and balances to the edge. This paper assesses the 1991 corporate governance framework for Belgian autonomous SOE's, compares governance features of these entities and considers the differences with the commercial corporate governance practices. The paper starts with a brief introduction of the Belgian federal state and concludes with some thoughts for future developments.

La protection des actionnaires minoritaires En droit tunisien des sociétés

Abstract The Law on the Economic Initiative, promulgated on December 27th, 2007, amended several laws at the same time. Among these laws, is the modifi cation of certain provisions of the Commercial Companies Code of November 3rd, 2000. The Law aims at the impulse of the creation and the transmission of fi rms. In the field of company law, it reinforces the rights of shareholders in limited companies, listed or not, and abolishes the minimum capital, required for the constitution of limited liability companies. It also allows the shareholders to have a contribution in services (apport en industrie) in these companies. This study focuses on the consolidation of the shareholders’ rights under the new provisions. The shareholder rights are of two kinds: the right to participate in the taking of the decisions in the company (called “political rights”), and the right to a share of the profi t generated by the company’s activity. The Law on the Economic Initiative consolidated these two kinds of rights for minority shareholders.

The relevance to international mergers of the ethical perspectives of participants

PurposeInternational mergers are becoming more widespread among medium‐sized companies that for decades have held a prime position in their home country market, but who now feel threatened that they may not be of a significant size to continue to be viable in the international marketplace. The purpose of this paper is to examine the merger of one Australian company and one of its former competitors in the international marketplace from the perspective of the congruence between their espoused ethical cultures in business prior to the merger.Design/methodology/approachA questionnaire comprising 46 questions was sent to the public relations manager of each organisation prior to the merger. These managers were asked to fill in the questionnaire and to provide a copy of their code of ethics.FindingsThe research found that organisations need to not only have a code of ethics, but also need to focus especially on the area of code augmentation to ensure that they communicate the ethos of their code to their employees. The examination of the content of the code and the artefacts in place to communicate the ethos of each company's code would enable one to compare for ethical congruence between the two companies. The examination of these ethical artefacts highlighted that the companies appeared to have been quite divergent in their commitment to business ethics when they entered the merger. If companies are to merge across country, and thus cultural boundaries, they need to examine the ethical standpoints of potential partners in order to alleviate any potential conflicts from an ethical, corporate culture perspective.Originality/valueThis paper provides useful information for those companies planning to merge across country, and thus cultural boundaries.

Design and Experimental Results for Albany HTS Cable

The Albany Project plans to install a 350 m High Temperature Superconducting (HTS) cable in the power grid of the Niagara Mohawk Power Company to carry 800 Arms at 34.5 kV. The type of the cable has 3 HTS cores in one cryostat with Bi-2223 used for HTS conductor and shield layers. The three cores are housed within double SUS corrugated pipes which provides thermal insulation. The tapes are manufactured with a new innovative sintering method with controlled over pressure (CT-OP) technology. Polypropylene laminated paper (PPLP) is used as electrical insulation. The cable will be installed in long underground conduit. A cable joint will be made in an underground vault to connect a 30 m length of the cable with the remaining 320 m. The original Bi-2223 30 m cable will be replaced with a 30 m YBCO cable after long-term operation. The terminations at both ends of the cable will have three bushings in a cryogenic vessel. Typical performance evaluation experiments, such as cable bending tests, voltage tests, and fault current tests, have been conducted with sample cables to check the design. Voltage tests for 69 kV AC and 200 kV impulse were successfully applied to a 5 m cable in accordance with the Association of Edison Illuminating Companies (AEIC) code of 35 kV class cable. The cable will be manufactured and installed in 2004 and 2005, then, long-term operation will be started.

Does It Take an Economic Village to Raise an Ethical Company?

The article focuses on the findings of a study on the effectiveness of the U.S. Sarbanes-Oxley Act as a regulatory ethics law. Financial officers felt that market stakeholders actually had more influence regarding ethics and their use of the company ethics code than did non-market stakeholders. The study found that the pressure exerted by market stakeholders provided the strongest influence in terms of convincing executives to obey the rules and guidelines found in their company's code of ethics. The also found that pressure to adopt a code of ethics was greatest for executives when they saw that doing so would lead to the creation of an ethical culture in the company and would promote a positive public image.

Single-Mode Compound Retrieval for QSAR, QSPR Data Sets, and Batch Mode Exact Structure Searching

This commentary describes two simple procedures using commercially available software packages that greatly facilitate the creation of and replication of data sets intended for quantitative structure activity relationship (QSAR) and quantitative structure property relationship (QSPR) studies. Used properly, the procedures allow the capture of individual chemical structures from the Chemical Abstracts Service (CAS) SciFinder software in a computer readable format that is recognized by most chemical database and computational calculation software packages. The researcher need not draw in a chemical structure to create a Molecular Design Limited (MDL) mol file, the 2D connection table format most commonly used to create the chemical depiction of compound or drug. The MDL mol format is needed so that properties can be calculated from the chemical structure alone. All that is required is that the compound or drug be located in SciFinder. The procedures are described in considerable detail because the key procedures for capturing structures from Chemical Abstracts Service (CAS) SciFinder through the use of Accelrys’Accord for Excel software are undocumented in either software. Also described is a batch procedure that allows search of CAS SciFinder for the exact chemical structure of up to 25 compounds. Without use of this procedure, Scifinder can only be searched for an exact chemical structure a single compoundat a time using a query consisting of a drawn in structure. Both the single-mode structure retrieval and batch-mode compound search procedures result in very significant time savings to the researcher creating or replicating QSAR/QSPR data sets and likelymay enable structure searches that previously might not have been attempted because of researcher time constraints. These procedures do not affect positively or negatively the cost to the user of the searches against the SciFinder software. These costs are determined by CAS policy, and depend on the numbers of structures/compounds searched. Locating a compound or drug in SciFinder is most accurately done using the CAS Registry Number. The CAS Registry Number uniquely identifies a specific compound and salt form. Older deleted CAS Registry Numbers for a specific compound may be encountered, but a search on the current (or older) CAS Registry Numbers will always bring up the correct compound. If different salt forms of the same compound exist in the CAS databases, they will have different CAS Registry Numbers. By contrast, a search by compound or drug namemay fail. IUPAC names for compounds are of no value in searches against SciFinder because IUPAC Names are not listed in the records. Commonly used drug names work fairly well. However, it is frequent to find variant or misspelled drug names in the scientific literature. A deviation between a search input name and the names stored in CAS databases in only a single letter or number will result in a search failure. Searchesusingdrug tradenames (as invery recent drugs) or company code numbers (as in early discovery stage compounds) fail more frequently than searches using common names.

CKB - the compound knowledge base: a text based chemical search system.

The Compound Knowledge Base (CKB) was developed as a means of locating structures and additional relevant information from a given known structural identifier. Any of Chemical Abstracts Service Registry Number, company code (code number the producing company refers to the chemical entity internally), generic name (trivial or class name), or trade name (name under which the compound is marketed) can be provided as a query. CKB will provide the remaining available information as well as the corresponding structure for any matching compound in the database. The interface to the Compound Knowledge Base is Internet/World Wide Web-based, using Netscape Navigator and the ChemDraw Pro Plugin, which allows Merck scientists quick and easy access to the database from their desktop. The design and implementation of the database and the search interface are herein detailed.

A More Efficient Financial System for Improved Economic Performance : An Attempt at Identifying the Priorities

It is common wisdom that necessary conditions for economic performance are institutions that help the efficient production and distribution of goods and services. This rule applies also in financial sector. The authors surveyed the available evidence on the efficiency of judicial institutions and their effect on working of financial markets. They also analyse the link between good corporate laws, efficient enforcement of the laws and economic performance. Finally, two initiatives are studied : - a comparison of two bills that the Italian parliament is considering for the reform of the company code ; - the initiative for the creation across Europe of private credit bureaus and public credit registers. JEL classifications : G14, G28

Kuwait: The Evasion of Liabilities — A Limited Liability Subsidiary Controlled by a Holding Company

A limited liability company (LLC) plays an important role in the commercial activities in Kuwait. The majority of companies in Kuwait takes the form of a limited liability. This is due to a number of reasons, namely smallness of the invested capital, its suitability to a middle‐size enterprise and the limited liability of the partners. The LLC was confined to at least two special provisions (prohibition) that differ from other forms of companies. First, Article 187 of the Company Code provides that LLCs ‘may not transact insurance business, banking or the investment of monies for third parties’, and secondly, Article 185(2) states that ‘partners may only be natural persons’. The rationale of these prohibitions is based on the weakness of the financial position and the limited liability of the company, as insurance and investment need a large capital, and on the other hand to prevent holding companies (HCs) from controlling LLCs, and enter into irrational speculation in commercial activities, which may affect the minority of shareholders and the national economy too.

Implementing business ethics: Sexual harassment

Sexual harassment is a problem for many organizations. Organizations must understand that sexual harassment lies within the broader context of sex discrimination and inequality of opportunity in the workplace. Sexual harassment is both an illegal and unethical practice. Companies need to implement a policy which respects the rights of individual employees by prohibiting sexual harassment. This policy need to be clearly stated in the company Code of Ethics and enforced rigorously.

Insolvent Trading - Recent Developments in Australia, New Zealand and South Africa

[Extract] During the 1980's much was written about the inadequacies of the Australian fraudulent and reckless trading provisions contained in sections 556 and 557 of the Companies Code and later sections 592 and 593 of the Corporations Law. These indadequacies were not lost on the Government and whilst the introduction of the National companies scheme in 1990 did not effect any reforms to the defaulting officer provisions, as they have commonly become known, over a six year period a series of committees was established to examine both the adequacy of the laws relating to insolvency and the regulation of directors. Subsequently the Corporate Law Reform Act 1992 enacted, amongst other reforms, significant changes to the defaulting officer provisions. Thses amendments took effect from 24 June, 1993.

Professional Ethics Training for Engineering Firms

Ethical dilemmas are widespread within professional engineering practice. To maintain high ethical standards of engineering management practice, companies should establish programs to educate their employees about ethical conflicts. The professional ethics training (PET) program described in this paper is designed to sensitize employees to the topic of ethics, clarify company policy, and establish a system for information and appeals. To implement the program, companies must evaluate their current programs, establish goals for a new program, prepare a company code of ethics, and establish a system of communication within the company. They should then conduct training sessions for the employees. The training sessions are individualized for each department and level of employee and include all employees, from new hires to executive officers. Follow‐up to the training sessions includes evaluation, alteration, and continuing education. A successful program will generate higher morale among employees, improved...

Antiprogestins and the Abortion Controversy: A Progress Report

The development of the antiprogestin RU-486, and its current use in France and the UK, potential other application, politics in the US, and future are presented. Ru-486, as commonly known by its company code name, rather than its generic name mifepristone, is an analogue of a progestin used in oral contraceptives, with an added chemical group that allows it to link up with the progesterone receptor, but prevents progesterone's effects. It was approved in France in 1988, and has been used for early abortion up to 7 weeks LMP on 80,000 women. French women, after an initial diagnostic appointment, take 3 200 mg tablets of RU-486, then 36-48 hr later return for a Sulprostone (prostaglandin) injection, and are checked up 4-6 weeks later. About 96% abort completely. Some have nausea, vomiting, or pain. Bleeding averages 9 days, and 1% require treatment for bleeding. 2 cardiovascular events and 1 heart attack have been associated with the prostaglandin, now contraindicated in smokers or women 35. In England, RU-486 abortions began in late 1991, for pregnancies up to 9 weeks, using a gentler prostaglandin, Gemeprost, in a vaginal suppository. Only company-trained doctors may order the drug. Research continues on lower doses of RU-486, other prostaglandins, and effects on the fetus if abortion fails. While there is no known basis for a teratogenic effect of the antiprogestin, strong uterine contractions brought on by prostaglandins, such as misoprostol, as abused for illegal abortion in Latin America, may cause birth defects. RU-486 is expected to be useful for inducing labor, dilating the cervix, emergency contraception, pre-surgical management of Cushing's syndrome, brain cancers with profesterone receptors, among other conditions. Several of the 400 or so antiprogestins known are being tested clinically, notably HRP 2000 by WHO. Political controversy is so intense in the US that Roussel, the maker of RU-486, has no intention of marketing it, and even research supplies are unreliable. Meanwhile, pro-choice groups are innovating ways to test and market antiprogestins legally, perhaps inside state lines. It is expected that a suitable prostaglandin, misoprostol, licensed for peptic ulcer, will be available soon, and even RU-486 will become generic by 1998 when its patent expires.

RAISING EQUITY CAPITAL UNDER THE CORPORATIONS ACT

The Corporations Act 1989 (Cwlth) ('the Act'), which is expected to come into force on 1 January 1991, will introduce major changes to the regulation of fund-raising by a corporation.The notion of an offer to the public, which governs whether a prospectus is required to be issued or not under the Companies Code 1981 ('the Code'), will be replaced by a blanket prohibition on offers or invitations for subscription or purchase of securities, subject to enumerated exclusions. Consequently, rights issues and dividend reinvestment schemes will be required to be accompanied by the issue of a prospectus, as will offers of prescribed interests.While farm-outs and unincorporated joint ventures fall within the present definition of 'prescribed interests', the Australian Securities Commission (ASC) has indicated that Regulations will be promulgated to exempt them.The contents of prospectuses will be governed by a general disclosure provision together with a catalogue of factors designed to ensure that the information supplied in a prospectus is directly proportional to the informational needs of the proposed offerees.The Act has expanded the civil liability of persons associated with the preparation of a prospectus by increasing both the class of potential plaintiffs and the class of potential defendants.To fine-tune the operation of the scheme and the significant changes wrought, the legislature may have to resort to the promulgation of regulations as well as amendment by statute.

The Rule in British Bank v Turquand in 1989

The purpose of this article is to review the present position with regard to the rule in Royal British Bank v Turquand (sometimes called the ’indoor management rule’) and sections 68A, 68C and 68D of the Companies Code in the light of a number of recent decisions, including one in the New South Wales Court of Appeal and one in the Federal Court of Australia.

LEGAL EFFECT OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION OF A COMPANY AFTER THE INTRODUCTION OF THE COMPANIES AND SECURITIES LEGISLATION (MISCELLANEOUS AMENDMENTS) ACT 1985

The memorandum and articles of association comprise the company's constituent documents. Under the Companies Code 1981 the main provision dealing with the legal effect of the memorandum and articles of association is s.78( 1). It isintended by the writer to examine the consequences of the original Section 78(1) and then consider the effect of the new provision in order to ascertain whether the law has been clarified. It is further intended by the writer to briefly examine the relationship between s.78(l) and s.574 of the Companies Code.

THE DOCTRINE OF ULTRA VIRES: RECENT DEVELOPMENTS

In this article the writer intends to consider recent developments concerning the doctrine of ultra vires J Reference will be made to common law developments and developments under the Companies Code 19812 brought about by virtue of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985.3

SOME COMMERCIAL ASPECTS OF PETROLEUM EXPLORATION AND MINING

The petroleum industry in Australia is at the centre of a web of complex laws. In addition to the legislation under which petroleum exploration and production tenements are granted there is a multiplicity of statutes and regulations, Commonwealth and State, which have a direct bearing on the conduct of those involved in exploring for or exploiting Australia's petroleum reserves. For example, the level of participation by foreigners is governed by the Commonwealth Foreign Investment Guidelines and the Foreign Takeovers Act 1975; the Commonwealth has control over the export of petroleum under the Customs (Prohibited Exports) Regulations and domestic markets are subject to the operation of the Crude Oil Allocation Scheme. The Commonwealth continues to have the right to regulate the transfer of funds to and from Australia under the Banking (Foreign Exchange) Regulations. Certain States such as South Australia and New South Wales have their own foreign investment guidelines.Not only this, there are revenue laws which govern very much the way in which petroleum projects are organised, interests transferred and otherwise dealt with and finance made available, such as State stamp duty legislation, Commonwealth income tax laws, and Commonwealth legislation imposing registration fees on dealings in exploration permits and production licences. A new tax, Resource Rent Tax, is to be introduced.Then there are laws which have an indirect bearing on petroleum activities such as the Companies Code which, in addition to governing the administration and organisation of companies, controls the way funds can be raised.The statutory and regulatory framework is only part of the picture. The rights and obligations of participants in petroleum projects as between themselves are almost always set out in a joint venture or joint operating agreement, the combination between the participants being known as an unincorporated joint venture. This form of business organisation is not a partnership; it is not the creature of legislation. Indeed it has been rarely referred to in Acts of Parliament. Problems arising under the joint venture agreement will be considered against the backdrop of the general law which unfortunately has seldom been called upon to resolve disputes between participants in joint ventures. An illustration of one of these rare instances is Brian Pty Ltd v United Dominions Corporation Ltd (1983), where the New South Wales Court of Appeal considered the fiduciary relationship of joint venturers.Despite this legislative and regulatory' backdrop and the uncertainties as to the true effect of joint venture agreements, the industry up until quite recently has survived with little litigation. This is no longer the case. Recent and pending litigation shows that there is no reluctance on the part of participants to take their disputes to court, often at great expense and with unfortunate results for previously close relationships. It must now be said that money spent to achieve proper and clear agreement on organisational and legal matters at the earliest stage of a project is money just as well spent as that on drilling and other operational activities.

Joint Venturing in Kuwait Company Law Explained

The Kuwait Companies Code of 1960 has incorporated both concepts of joint ventures. It deals with the de facto forrn as well as with the de jure. The former is covered briefly by Articles 56 62 inclusive of the Companies Code. Strictly speaking, any two persons can form a corporation, subject to certain limitations, for the purpose of carrying out a specified project. This de facto corporation is not subject to commercial registration or any specific formality. Nevertheless, its existence can be established by adducing any forlll of evidence. It is not recognised as a legal entity which has its own identity separate from that of its founders. However, the agreement which is signed and executed by the parties is birlding, valid and enforceable. The parties can agree virtually on the capital, management, distribution of loss and profit accounting procedures, liquidation of assets and representation vis-a-vis third parties. This type of joint venture is limited in its legal effects to the parties constituting the joint venture company. In its dealings with a third party, it expresses itself through one of the co-venturers. This representative underwrites all liabilities as far as third pariies are concerned. However, it shares such liabilities with its co-venturer. De facto companies are generally subject to some legal constraints. Under Kuwaiti law, no foreign company can do business without having a Kuwaiti agent. Hence, a foreign co-venturer must have a Kuwaiti person to form a joint venture with. Even though the law provides that a Kuwaiti must have at least 51 per cent in any corporation, it is not certain if this constraint applies to joint ventures. It is one of the