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Course Details

Updating the Hong Kong Company Director on Case Law and New Developments in Directors Duties and the Companies Ordinance (cap.622)
Anne Carver, Honorary Lecturer, The School of Public Health, The Chinese University of Hong Kong
Date: 29 June 2018 (Friday)
Time: 2:30pm - 5:45pm
Level: I (Intermediate)
For delegates who have prior knowledge of the subject area
Language: English
Fee: HK$ 1,600
Accreditation: 3 CPD pts (Accredited by The Law Society of Hong Kong)
Ref: L18CC12
Venue: Learning Commons
Unit 903, 9/F,
Euro Trade Centre,
21-23 Des Voeux Road,
Central, Hong Kong
[View Map]
Presenter's Biography:

Anne now teaches part-time in the School of Public Health and the Business School at The Chinese University of Hong Kong. She is the author of Corporate Governance - the Hong Kong Debate (with Say Goo), and specializes in company law and business law. Previously she taught on the LLB, JD and LLM programmes in the Faculty of Law at the Chinese University. She is particularly interested in directors' duties, corporate governance, the regulatory interface between the Companies Ordinance (cap 622) and the Securities and Futures Ordinance and also the author of Hong Kong Business Law which is a standard Hong Kong student text.

This Seminar will focus on recent Hong Kong company law cases to analyse developments in directors' duties since the enactment of cap 622 in March 2014.
We shall analyse four areas of growing importance in terms of directors' duties to the company and the role of minority shareholders. These four areas are: developments on the rule against reflective loss; the uses and abuses of joint ventures and the attempt to fetter corporate powers; new lessons on "corporate divorce"; and a reminder from the Hong Kong Court of Appeal on the jurisprudential basis for the equitable constraints over the unfair exercise of legal rights in the context of unfair prejudice.

Additionally ,the new Companies (Amendment) Ordinance 2018 came into effect on 1st March 2018 introducing a new requirement to keep a "Significant Controllers Register together with their particulars" together with the name of the "designated representative "of the company to assist law enforcement officers in relation to the Significant Controller Register . These new 1st March 2018 company law amendments to cap 622 major consequences for de jure , de facto and shadow directors. We shall therefore identify the differences (if any ) between these three different categories of directors and highlight the impact of the amendments to all three categories.

  • We have seen a growing number of originating summonses pursuant to section 722 (cap 622) and the statutory derivative action alleging breach of a director's fiduciary duties to the company. The rule against reflective loss and the impact of the "rule" ,however, creates obstacles for shareholders as illustrated in Kam Kwan Enterprises (Holdings )Ltd v Chow Pui Shan & Ors [2014] HKCU .

  • In the context of breaches of directors' fiduciary duties we shall also analyse developments in company law now emerging from the uses and abuses of joint ventures. We shall therefore discuss the question before Judge B Chu in Hansen International Ltd v High Fashion Apparel Ltd v Ors [2014] on whether the terms of joint venture agreement could be ratified or amounted to an unlawful fetter of corporate powers.

  • By way of context, we shall also revisit Muir v Lamp [2005] 1 HKLRD 338 and its lessons on "corporate divorce", whether by way of an unfair prejudice petition or a just and equitable winding up. Additionally, we shall discuss Harris J's judgment on how to end a joint venture in Quicksilver Glorious Sun JV Ltd [2014] HKEC124.

  • We shall highlight aspects of breaches of fiduciary duty in Law Kwok Kei v Vicky Siu Wing Kee & Ors [2014]HKCU 2335 together with a useful summary of the well established rules of attribution the state of mind of a director and attribution of that state of mind to the company.

  • We shall discuss the Court of Appeal judgment in Re Yung Kee Holdings Ltd [2014] 2 HKC 556 and the detailed analysis of the law on unfair prejudice We shall also contrast this with Harris J's analysis of unfair prejudice in Re Asia Television [2015] 1 HKLRD 607

  • We shall also briefly examine the he new company law introduced on the 1st March 2018 on section 653A ,653C and Section 653 D and the meaning of significant control under section 653E. We shall also examine the relevance to company directors of the new duty to keep this information up to date. Of additional particular interest to company directors are the new offences under section 653ZE and section 895 ,the offences for knowingly or recklessly making false or deceiving statements.

In conclusion, developments since the enactment of cap 622 would appear to place a special emphasis of the fiduciary nature of a director's duty to the company, thus making the issue of the rule against reflective loss even more significant in Hong Kong company law.
Category: Corporate / Commercial
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