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International and Comparative Corporate Law Journal

Volume 15 • 2021 • Issue 1


A COMPARATIVE ANALYSIS OF THE INDENTIFICATION OF DE FACTO AND SHADOW DIRECTORS IN SOUTH AFRICA, THE UK AND AUSTRALIA

by Rehana Cassim

BA (cum laude), LLB (cum laude), LLM (cum laude) (Witwatersrand) LLD (Unisa). Associate Professor, Department of Mercantile Law, University of South Africa, South Africa, Attorney and Notary Public of the High Court of South Africa.

Company law on de facto and shadow directors under the South African Companies Act 71 of 2008 is disconcertingly undeveloped. This weakness is worrying since South Africa has become notorious for the state capture of some key state-owned entities. In the light of similarities in the statutory definition of a ‘director’ in the South African Companies Act, the Companies Act 2006 in the United Kingdom and the Corporations Act 2001 in Australia this article evaluates whether guidance on the legal principles relating to de facto and shadow directors may be derived from these jurisdictions, where the law on this topic is more developed. It is argued that the definition of a ‘director’ in the South African Companies Act would be improved by certain amendments. Drawing on the Companies Act 2006 in the United Kingdom and the Corporations Act 2001 in Australia, a new statutory definition of a ‘director’ is proposed which would apply to both de facto and shadow directors.


ARE AUDITORS WATCHDOGS OR BLOODHOUNDS – EVIDENCES FROM MALAYSIA?

by Dr. Loganathan Krishnan

Lecturer, Department of Business Law & Taxation, School of Business, Monash University Malaysia.

This article will examine the law which governs the role of auditors under the Malaysian legal framework. Whilst doing so, the current legal principles will be explicated and critically examined. Against the backdrop of financial irregularities which occurred in Malaysia from the period of 1998 to 2018, this article will argue that the current corporate law governing auditors, is in a dire need of a revamp as it was not able to counter the financial irregularities. This is presented with a view of suggesting reforms to the corporate laws in Malaysia and the adoption of a principled approach to auditors’ role. It is hoped that these deliberations will be a catalyst for further comparative research concerning the role of auditors in redefining the role of auditors from being merely a watchdog, to become a bloodhound. 


A COMPARATIVE ANALYSIS OF THE CLASS ACTION REGIMES IN NIGERIA AND KOREA

by Kalu Kingsley Anele

Ph.D: Research Fellow, Cultural Heritage Preservation Research Institute, Pusan National University, Busan, Republic of Korea. Areas of specialisation: Maritime Law, Ocean Law and International Law etc.

Class action procedures are mechanisms tailored to aggregate suits by victims of similar wrongdoings to facilitate access to justice and contribute to court decongestion. Despite the adverse effects of corporate malfeasance in Nigeria and Korea, the class action regimes in both countries are limited in scope. This paper comparatively analysed the class action legal regimes in Nigeria and Korea and argued that due to the increasing number of corporate wrongdoings that implicated on the public; it was imperative to introduce general class action in both countries. Further, the paper dialectically reviewed bankruptcy, competition, corporate fraud, and human rights abuse cases to strengthen the argument for the introduction of general class action in Nigeria and Korea. The paper suggested the use of law reform, judges, flexible rules of court and laws, adequate notice, and public enlightenment strategies to introduce and strengthen general class action in both counties.


A POST-COLONIAL COMPARATIVE CRITICL LEGAL STUDY OF THE OPEN NORM OF REASONABLENESS AND FAIRNESS (OR GOOD FAITH) IN DUTCH AND INDONESIAN CORPORATE LAW

by Bart Jansen, Annida Putri, Faizal Kurniawan & Tineke Lambooy

Bart Jansen, LLM is PhD candidate, specialised in corporate law, legal philosophy, and ethics, at Nyenrode Business University (Breukelen) and lecturer jurisprudence at Leiden University, lecturer legal sociology at University of Amsterdam (all the Netherlands) and guest lecturer at Airlangga University (Surabaya, Indonesia); Annida Putri is a bachelor’s law student at Airlangga University and Leiden University; dr. Faizal Kurniawan LLM is managing partner at KJD Law Firm (Surabaya) and lecturer at Airlangga University, specialised in commercial contract law, corporate law, and international business law; Prof. dr. Tineke Lambooy LLM is professor of corporate law at Nyenrode Business Universiteit and adjunct professor at Universitas Airlangga. We thank Johanna Rietveld MA for her critical comments and suggestions on this contribution.

Both Dutch and Indonesian corporate law contain ‘open norms’. This means that there is room for interpretation of the content and purpose of these standards. The best-known Dutch open norm is that of ‘reasonableness and fairness’ — a standard also known in Indonesia as ‘reasonableness and fairness’ and as ‘good faith’. This contribution offers a perspective on the anthropo-legal background that is so important to the interpretation of open norms both in Dutch and in Indonesian corporate law. The comparison of good faith and reasonableness and fairness standards in the corporate laws of both countries is interesting because of their colonial and, therefore, legal ‘transplant’ relationship. The countries differ significantly in terms of cultural, economic, political, and religious dimensions, which influences the way in which open norms are interpreted. Interestingly, a centralistic legal system is applied in the Netherlands, as opposed to a pluralistic legal system in Indonesia. This fundamental distinction leads to differences in the interpretation of open norms in the corporate law of both countries. The findings show that although corporate law as well as the open norms contained therein are rooted in Dutch and Indonesian civil law, corporate law has undergone a development that is partly independent therefrom. At the same time, the manner in which corporate open norms are interpreted in the Dutch and Indonesian legal systems is remarkably similar.