Derivative Actions and Corporate Governance

Dr. Arad Reisberg, D.Phil (Oxon), Advocate, is currently the Director of the Centre for Commercial Law and a Lecturer at the Faculty of Laws, University College London. He is a contributing author to Annotated Companies Acts (Oxford University Press looseleaf), and sits on the Editorial Boards of the journals Corporate Ownership and Control, and International Corporate Rescue. He is an Academic Member of ECGI (European Corporate Governance Institute) and a co-editor of Pettet's Company Law.

An exhaustive and penetrating analysis of the law relating to derivative actions. No stone has been left unturned...Dr Reisberg has, on many occasions in this book, sought to push the boundaries of that knowledge in his all-embracing approach...mandatory reading for all company lawyers.

• PREFACE ; SUMMARY CONTENTS ; TABLE OF CONTENTS ; TABLE OF CASES ; TABLE OF STATUTES ; GLOSSARY OF TERMS ; A BIRD'S EYE VIEW OF THE FUNCTIONAL AND FOCUSED MODEL ; INTRODUCTION ; 0.1 BACKGROUND ; 0.2 THE PRIMARY OBJECTIVES OF THE BOOK ; 0.3 THE DERIVATIVE ACTION- A UNIQUE PROCEDURE? ; 0.4 PUBLIC AND PRIVATE COMPANIES ; 0.5 THE NEW PROPOSED FRAMEWORK ADVANCED BY THE BOOK ; 0.6 AN OVERVIEW OF THE BOOK ; PART I: THEORY AND PRACTICE ANALYSIS ; 1. SHAREHOLDER LITIGATION ; 1.1 INTRODUCTION ; 1.2 SHAREHOLDER LITIGATION AND CORPORATE GOVERNANCE ; 1.3 ALTERNATIVE DEVICES TO CONTROL AGENCY COSTS ; 1.4 DERIVATIVE ACTIONS VERSUS MARKET FORCES ; 1.5 CONCLUSION ; 2. THE CHOICE OF RATIONLES AND THE SOCIAL MEANNING OF DERIVATIVE ACTIONS ; 2.1 INTRODUCTION ; 2.2 MERITS AND DEMERITS OF DERIVATIVE ACTIONS ; 2.3 THE CHOICE OF RATIONALES: DETERRENT VERSUS COMPENSATION ; 2.4 UNDERSTANDING THE SOCIAL MEANING OF DERIVATIVE ACTIONS ; 2.5 CONCLUSION ; 3. THE DIFFICULTIES WITH CONFERRING RIGHTS ON SHAREHOLDERS TO LITIGATE ; 3.1 INTRODUCTION ; 3.2 CAN A SHAREHOLDER ADEQUATELY REPRESENT THE COMPANY? ; 3.3 THE COMMON LAW RESPONSE ; 3.4 POLICY EVALUATION: OLD MYTHS AND NEW REALITIES ; 3.5 CONCLUSION ; PART II: MAKING DERIVATIVE ACTIONS WORK ; 4. THE WAY TO REFORM AND A NEW STATUTORY DERIVATIVE ACTION: MUCH ADO ABOUT NOTHING? ; 4.1 INTRODUCTION ; 4.2 DEFICIENCIES IN THE PRESENT LAW AND THE APPROACH TO REFORM ; 4.3 A NEW STATUTORY DERIVATIVE ACTION (under the Companies Act 2006) ; 4.4 AN ASSESSMENT OF THE LIKELY IMPACT OF THE NEW REGIME ; 4.5 CONCLUSION ; 5. A PROPOSED MODEL FOR DERIVATIVE ACTIONS: THE FUNCTIONAL AND FOCUSED MODEL (FFM) ; PART I: THE FOUNDATIONS ; 5.1 INTRODUCTION ; 5.2 THE ROLE OF DERIVATIVE ACTIONS IN A CHANGING MENU OF GOVERNANCE ; 5.3 THE DERIVATIVE ACTION AS A CONSTRAINT ON MANAGEMENT MISCONDUCT ; 5.4 SYNTHESIS - THE FUNCTIONAL AND FOCUSED MODEL ; PART II: FFM - PROCEDURAL AND SUBSTANTIVE ASPECTS ; 5.5 CONCLUSION ; 6. FUNDING DERIVATIVE ACTIONS: COSTS AND FEES AS INCENTIVES TO COMMENCE LITIGATION ; 6.1 INTRODUCTION ; 6.2 THE ECONOMICS OF DERIVATIVE ACTION LITIGATION ; 6.3 A RE-EXAMINATION OF INDEMNITY COSTS ORDERS ; 6.4 CONCLUSION ; 7. PURSUING THE RESOLUTION OF THE FUNDING PROBLEM ; 7.1 INTRODUCTION ; 7.2 MENU OF OPTIONS: SOLUTIONS INVOLVING THE COMPANY AND THE SHAREHOLDER ; 7.3 SOLUTIONS INVOLVING THE PLAINTIFF'S ATTORNEY ; 7.4 INTRODUCING CONTINGENCY FEES FOR DERIVATIVE ACTIONS? ; 7.5 CONCLUSION ; 8. THE INTERRELATIONSHIP BETWEEN THE DERIVATIVE ACTION AND THE UNFAIR PREJUDICE REMEDY ; 8.1 INTRODUCTION ; 8.2 THE INTERRELATIONSHIP BETWEEN THE DERIVATIVE ACTION AND THE UNFAIR PREJUDICE REMEDY ; 8.3 THE CASE FOR RETAINING TWO SEPARATE REMEDIES ; 8.4 THE WAY FORWARD - PRACTICAL STEPS ; 8.5 CONCLUSION ; CONCLUSION AND FUTURE DIRECTIONS ; BIBLIOGRAPHY ; APPENDIX A: COMPANIES ACT 2006 PART 11 CHAPTER 1 ; INDEX