Cases and materials on company law

Fiduciaries who represent multiple principals often encounter conflicts of duty, torn between promoting the interests of one principal and those of another. Courts have not done a good job of articulating principles for resolving these conflicts. They resort to inconsistent approaches and seek to elide underlying tensions in the cases. Scholars have addressed sources of fiduciary duties, and whether they constitute default contractual terms, but they have paid little attention to resolving conflicts when they arise. This Article seeks to fill the gap, presenting an account to explain and justify the cases. Fiduciaries are subject to common law duties of loyalty and care, and many difficult cases present a conflict between enforcing the duty of loyalty owed to one principal and the duty of care owed to another. The key to understanding how courts resolve such conflicts lies in the different nature of these duties. The duty of loyalty is a negative duty to avoid harm; it is a duty of omission. The duty of care is a positive duty to promote the interests of the principal, a duty to act. To explore the nature of the duties, the Article draws on Kant's discussion of perfect and imperfect duties. It explains that duties of care, like Kant's imperfect duties, can never be fully satisfied, but by enforcing the prohibitions imposed by the duty of loyalty, courts ensure that when the fiduciary acts, she acts consistently with the duty of care as well. The Article applies these principles to three types of fiduciaries: attorneys, financial firms, and company directors, explaining why courts treat a breach of the duty of care more leniently than a breach of the duty of loyalty, much like the common law has treated omissions more leniently than acts. The Article concludes that the theory presented not only justifies how courts resolve difficult cases, it also explains the behavior of individual fiduciaries, financial firms, and regulators.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID904212_code575038.pdf?abstractid=904212

Resolving Conflicts of Duty in Fiduciary Relationships

FHR European Ventures LLP v Cedar Capital Partners LLC

Discusses Millett LJ's 1999 judgment on the limitation rules governing claims for breach of constructive trust in Paragon Finance plc v DB Thakerar & Co.

Paragon Finance plc v D B Thakerar & Co (a firm) (1999)

Equity Rising? Commonwealth Oil & Gas Co Ltd v Baxter

The focus of this thesis is on the problematic aspects of directors’ loyalty to their companies under Iraqi law. This issue belongs to one of the most complex areas of company law, because it relates to the fallibility of human nature and a director’s temptation to put his personal interests ahead of the company's interests. A comparison with English law is undertaken, with an emphasis on recent developments, particularly the English Companies Act of 2006. This comparison is aimed at identifying defects in Iraqi law and providing solutions to problems arising from the incoherence of Iraqi legislation and its lack of a fiduciary doctrine.
In order to achieve this goal, this thesis focuses on certain managerial duties: the duty to act in the company’s interests; the duty to avoid conflicts of interest; and the director’s duty to declare his interest in transactions, as well as the enforcement of these duties.
The author of this thesis argues that in Iraqi law there are several legislative loopholes and contradictions with regard to addressing the problems of a director’s divided loyalty. The main shortcoming is ascribed to the absence of a unifying conceptual underpinning of managerial duty within Iraqi legislation. This contrasts with the situation in English law, in which the fiduciary doctrine underpinning managerial duty operates to protect the company (as a vulnerable person) from certain aspects of a director’s self-interest and dishonesty by imposing strict duties relating to any eventuality in which the director might be swayed by personal interests rather than his duty. The plurality of legislation dealing with managerial duties is a further challenge facing Iraqi law, and such a situation often leads to a conflict between the rules governing this area. The above shortcomings in Iraqi law inevitably affect its unity and its coherence, and limit its capability to address certain fundamental aspects of director’s misbehaviour.
This thesis demonstrates that addressing the problems of the divided loyalties of directors under Iraqi law should take the form of a comprehensive systematic overhaul of Iraqi Company Law. This reform should take into account the necessity of transplanting certain aspects of U.K. fiduciary duties into Iraqi law, particularly the concept of fiduciary duty, in order to provide a clear guide, not only to the courts when they apply and interpret the law, but also to the director himself and other practitioners.

Companies' directors in Iraqi law and their divided loyalty : lessons drawn from English law

Cement is the main construction material in the infrastructure, and it determines the key properties of the concrete structures. However, cement production causes many environmental issues, including but not limited to global warming and depletion of natural resources. Therefore, this paper focuses on replacing the Ordinary Portland Cement (OPC) in cement mortar with ground granulated blast furnace slag (GGBS) and pulverised fuel ash (PFA)) to develop a green mortar that has less negative environmental impacts compared to the OPC. Different ratios of GGBS and PFA (0-40% of cement) were used in this study, and the produced samples were cured for four weeks. The compressive strength of the green mortar was measured at the ages of 1, 2, 3 and 4 weeks. The results showed the produced mortar generally is weaker than the OPC mortar, where the final compressive strength of the reference sample, sample with 20% GGBS and 20% PFA, and samples with 35% of GGBS and 35% of PFA was 13.7, 10.1 and 7.3 MPa, respectively. However, the new mortar is beneficial for both environment and construction costs.

Development of green cement mortar using industrial by-products

  
Cement is one of the essential construction materials required to develop concrete and mortar; therefore, it is vital in developing cities' infrastructure and maintaining human civilisation. However, cement production is recognised as a major source of many environmental problems, including air and water pollution. This paper, therefore, focused on the partial replacement (from 0 to 40%) of cement in the mortars with industrial by-products and on the application of ultrasonic waves as a sensing approach to evaluate the mechanical properties of the new cement mortar. The compressive strength of the eco-friendly mortar was measured at ages of 7, 14, and 28 days, and the results showed the best compressive strength of the eco-friendly mortar was 19.8 MPa at 28 days compared to 23.9 MPa of the reference mix. Additionally, a good agreement was noticed between the ultrasonic pulse velocity (UPV) and the compressive strength confirming the applicability of the UPV for compressive strength sensing.

/pdf/ultrasonic-sensing-of-properties-of-eco-friendly-cement-2o70wmas.pdf

Raad Hashim

Papers

Companies' directors in Iraqi law and their divided loyalty : lessons drawn from English law

Development of green cement mortar using industrial by-products

Ultrasonic sensing of properties of eco-friendly cement mortar