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Sunday, August 27, 2023

Corporate law

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Corporate_law

Corporate law (also known as business law, company law or enterprise law) is the body of law governing the rights, relations, and conduct of persons, companies, organizations and businesses. The term refers to the legal practice of law relating to corporations, or to the theory of corporations. Corporate law often describes the law relating to matters which derive directly from the life-cycle of a corporation. It thus encompasses the formation, funding, governance, and death of a corporation.

While the minute nature of corporate governance as personified by share ownership, capital market, and business culture rules differ, similar legal characteristics and legal problems exist across many jurisdictions. Corporate law regulates how corporations, investors, shareholders, directors, employees, creditors, and other stakeholders such as consumers, the community, and the environment interact with one another. Whilst the term company or business law is colloquially used interchangeably with corporate law, the term business law mostly refers to wider concepts of commercial law, that is the law relating to commercial and business related purposes and activities. In some cases, this may include matters relating to corporate governance or financial law. When used as a substitute for corporate law, business law means the law relating to the business corporation (or business enterprises), including such activity as raising capital, company formation, and registration with the government.

Overview

Academics identify four legal characteristics universal to business enterprises. These are:

Separate legal personality of the corporation (access to tort and contract law in a manner similar to a person)
Limited liability of the shareholders (a shareholder's personal liability is limited to the value of their shares in the corporation)
Transferable shares (if the corporation is a "public company", the shares are traded on a stock exchange)
Delegated management under a board structure; the board of directors delegates day-to-day management of the company to executives.

Widely available and user-friendly corporate law enables business participants to possess these four legal characteristics and thus transact as businesses. Thus, corporate law is a response to three endemic opportunism: conflicts between managers and shareholders, between controlling and non-controlling shareholders; and between shareholders and other contractual counterparts (including creditors and employees).

A corporation may accurately be called a company; however, a company should not necessarily be called a corporation, which has distinct characteristics. In the United States, a company may or may not be a separate legal entity, and is often used synonymous with "firm" or "business." According to Black's Law Dictionary, in America a company means "a corporation — or, less commonly, an association, partnership or union — that carries on industrial enterprise." Other types of business associations can include partnerships (in the UK governed by the Partnership Act 1890), or trusts (Such as a pension fund), or companies limited by guarantee (like some community organizations or charities). Corporate law deals with companies that are incorporated or registered under the corporate or company law of a sovereign state or their sub-national states.

The defining feature of a corporation is its legal independence from the shareholders that own it. Under corporate law, corporations of all sizes have separate legal personality, with limited or unlimited liability for its shareholders. Shareholders control the company through a board of directors which, in turn, typically delegates control of the corporation's day-to-day operations to a full-time executive. Shareholders' losses, in the event of liquidation, are limited to their stake in the corporation, and they are not liable for any remaining debts owed to the corporation's creditors. This rule is called limited liability, and it is why the names of corporations end with "Ltd." or some variant such as "Inc." or "plc."

Under almost all legal systems corporations have much the same legal rights and obligations as individuals. In some jurisdictions, this extends to allow corporations to exercise human rights against real individuals and the state, and they may be responsible for human rights violations. Just as they are "born" into existence through its members obtaining a certificate of incorporation, they can "die" when they lose money into insolvency. Corporations can even be convicted of criminal offences, such as corporate fraud and corporate manslaughter.

History

Although some forms of companies are thought to have existed during Ancient Rome and Ancient Greece, the closest recognizable ancestors of the modern company did not appear until the 16th century. With increasing international trade, Royal charters were granted in Europe (notably in England and Holland) to merchant adventurers. The Royal charters usually conferred special privileges on the trading company (including, usually, some form of monopoly). Originally, traders in these entities traded stock on their own account, but later the members came to operate on joint account and with joint stock, and the new Joint stock company was born.

Early companies were purely economic ventures; it was only a belatedly established benefit of holding joint stock that the company's stock could not be seized for the debts of any individual member. The development of company law in Europe was hampered by two notorious "bubbles" (the South Sea Bubble in England and the Tulip Bulb Bubble in the Dutch Republic) in the 17th century, which set the development of companies in the two leading jurisdictions back by over a century in popular estimation.

Companies returned to the forefront of commerce, although in England to circumvent the Bubble Act 1720 investors had reverted to trading the stock of unincorporated associations, until it was repealed in 1825. However, the process of obtaining Royal charters was insufficient to keep up with demand. In England there was a lively trade in the charters of defunct companies. It was not until the Joint Stock Companies Act 1844 that the first equivalent of modern companies, formed by registration, appeared. Soon after came the Limited Liability Act 1855, which in the event of a company's bankruptcy limited the liability of all shareholders to the amount of capital they had invested.

The beginning of modern company law came when the two pieces of legislation were codified under the Joint Stock Companies Act 1856 at the behest of the then Vice President of the Board of Trade, Mr Robert Lowe. That legislation shortly gave way to the railway boom, and from there the numbers of companies formed soared. In the later nineteenth century depression took hold, and just as company numbers had boomed, many began to implode and fall into insolvency. Much strong academic, legislative and judicial opinion was opposed to the notion that businessmen could escape accountability for their role in the failing businesses. The last significant development in the history of companies was the decision of the House of Lords in Salomon v. Salomon & Co. where the House of Lords confirmed the separate legal personality of the company, and that the liabilities of the company were separate and distinct from those of its owners.

Corporate structure

The law of business organizations originally derived from the common law of England, and has evolved significantly in the 20th century. In common law countries today, the most commonly addressed forms are:

The proprietary limited company is a statutory business form in several countries, including Australia. Many countries have forms of business entity unique to that country, although there are equivalents elsewhere. Examples are the limited liability company (LLC) and the limited liability limited partnership (LLLP) in the United States. Other types of business organizations, such as cooperatives, credit unions and publicly owned enterprises, can be established with purposes that parallel, supersede, or even replace the profit maximization mandate of business corporations.

There are various types of company that can be formed in different jurisdictions, but the most common forms of company are:

a company limited by guarantee. Commonly used where companies are formed for non-commercial purposes, such as clubs or charities. The members guarantee the payment of certain (usually nominal) amounts if the company goes into insolvent liquidation, but otherwise they have no economic rights in relation to the company .
a company limited by guarantee with a share capital. A hybrid entity, usually used where the company is formed for non-commercial purposes, but the activities of the company are partly funded by investors who expect a return.
a company limited by shares. The most common form of company used for business ventures.
an unlimited company either with or without a share capital. This is a hybrid company, a company similar to its limited company (Ltd.) counterpart but where the members or shareholders do not benefit from limited liability should the company ever go into formal liquidation.

There are, however, many specific categories of corporations and other business organizations which may be formed in various countries and jurisdictions throughout the world.

Corporate legal personality

One of the key legal features of corporations are their separate legal personality, also known as "personhood" or being "artificial persons". However, the separate legal personality was not confirmed under English law until 1895 by the House of Lords in Salomon v. Salomon & Co. Separate legal personality often has unintended consequences, particularly in relation to smaller, family companies. In B v. B [1978] Fam 181 it was held that a discovery order obtained by a wife against her husband was not effective against the husband's company as it was not named in the order and was separate and distinct from him. And in Macaura v. Northern Assurance Co Ltd a claim under an insurance policy failed where the insured had transferred timber from his name into the name of a company wholly owned by him, and it was subsequently destroyed in a fire; as the property now belonged to the company and not to him, he no longer had an "insurable interest" in it and his claim failed.

Separate legal personality allows corporate groups flexibility in relation to tax planning, and management of overseas liability. For instance in Adams v. Cape Industries plc it was held that victims of asbestos poisoning at the hands of an American subsidiary could not sue the English parent in tort. Whilst academic discussion highlights certain specific situations where courts are generally prepared to "pierce the corporate veil", to look directly at, and impose liability directly on the individuals behind the company; the actual practice of piercing the corporate veil is, at English law, non-existent. However, the court will look beyond the corporate form where the corporation is a sham or perpetuating a fraud. The most commonly cited examples are:

where the company is a mere façade
where the company is effectively just the agent of its members or controllers
where a representative of the company has taken some personal responsibility for a statement or action
where the company is engaged in fraud or other criminal wrongdoing
where the natural interpretation of a contract or statute is as a reference to the corporate group and not the individual company
where permitted by statute (for example, many jurisdictions provide for shareholder liability where a company breaches environmental protection laws)

Capacity and powers

Historically, because companies are artificial persons created by operation of law, the law prescribed what the company could and could not do. Usually this was an expression of the commercial purpose which the company was formed for, and came to be referred to as the company's objects, and the extent of the objects are referred to as the company's capacity. If an activity fell outside the company's capacity it was said to be ultra vires and void.

By way of distinction, the organs of the company were expressed to have various corporate powers. If the objects were the things that the company was able to do, then the powers were the means by which it could do them. Usually expressions of powers were limited to methods of raising capital, although from earlier times distinctions between objects and powers have caused lawyers difficulty. Most jurisdictions have now modified the position by statute, and companies generally have capacity to do all the things that a natural person could do, and power to do it in any way that a natural person could do it.

However, references to corporate capacity and powers have not quite been consigned to the dustbin of legal history. In many jurisdictions, directors can still be liable to their shareholders if they cause the company to engage in businesses outside its objects, even if the transactions are still valid as between the company and the third party. And many jurisdictions also still permit transactions to be challenged for lack of "corporate benefit", where the relevant transaction has no prospect of being for the commercial benefit of the company or its shareholders.

As artificial persons, companies can only act through human agents. The main agent who deals with the company's management and business is the board of directors, but in many jurisdictions other officers can be appointed too. The board of directors is normally elected by the members, and the other officers are normally appointed by the board. These agents enter into contracts on behalf of the company with third parties.

Although the company's agents owe duties to the company (and, indirectly, to the shareholders) to exercise those powers for a proper purpose, generally speaking third parties' rights are not impugned if it transpires that the officers were acting improperly. Third parties are entitled to rely on the ostensible authority of agents held out by the company to act on its behalf. A line of common law cases reaching back to Royal British Bank v Turquand established in common law that third parties were entitled to assume that the internal management of the company was being conducted properly, and the rule has now been codified into statute in most countries.

Accordingly, companies will normally be liable for all the act and omissions of their officers and agents. This will include almost all torts, but the law relating to crimes committed by companies is complex, and varies significantly between countries.

Corporate crime

Corporate Manslaughter and Corporate Homicide Act 2007

Corporate governance

Corporate governance is primarily the study of the power relations among a corporation's senior executives, its board of directors and those who elect them (shareholders in the "general meeting" and employees), as well as other stakeholders, such as creditors, consumers, the environment and the community at large. One of the main differences between different countries in the internal form of companies is between a two-tier and a one tier board. The United Kingdom, the United States, and most Commonwealth countries have single unified boards of directors. In Germany, companies have two tiers, so that shareholders (and employees) elect a "supervisory board", and then the supervisory board chooses the "management board". There is the option to use two tiers in France, and in the new European Companies (Societas Europaea).

Recent literature, especially from the United States, has begun to discuss corporate governance in the terms of management science. While post-war discourse centred on how to achieve effective "corporate democracy" for shareholders or other stakeholders, many scholars have shifted to discussing the law in terms of principal–agent problems. On this view, the basic issue of corporate law is that when a "principal" party delegates his property (usually the shareholder's capital, but also the employee's labour) into the control of an "agent" (i.e. the director of the company) there is the possibility that the agent will act in his own interests, be "opportunistic", rather than fulfill the wishes of the principal. Reducing the risks of this opportunism, or the "agency cost", is said to be central to the goal of corporate law.

Constitution

The rules for corporations derive from two sources. These are the country's statutes: in the US, usually the Delaware General Corporation Law (DGCL); in the UK, the Companies Act 2006 (CA 2006); in Germany, the Aktiengesetz (AktG) and the Gesetz betreffend die Gesellschaften mit beschränkter Haftung (GmbH-Gesetz, GmbHG). The law will set out which rules are mandatory, and which rules can be derogated from. Examples of important rules which cannot be derogated from would usually include how to fire the board of directors, what duties directors owe to the company or when a company must be dissolved as it approaches bankruptcy. Examples of rules that members of a company would be allowed to change and choose could include, what kind of procedure general meetings should follow, when dividends get paid out, or how many members (beyond a minimum set out in the law) can amend the constitution. Usually, the statute will set out model articles, which the corporation's constitution will be assumed to have if it is silent on a bit of particular procedure.

The United States, and a few other common law countries, split the corporate constitution into two separate documents (the UK got rid of this in 2006). The memorandum of association (or articles of incorporation) is the primary document, and will generally regulate the company's activities with the outside world. It states which objects the company is meant to follow (e.g. "this company makes automobiles") and specifies the authorised share capital of the company. The articles of association (or by-laws) is the secondary document, and will generally regulate the company's internal affairs and management, such as procedures for board meetings, dividend entitlements etc. In the event of any inconsistency, the memorandum prevails and in the United States only the memorandum is publicised. In civil law jurisdictions, the company's constitution is normally consolidated into a single document, often called the charter.

It is quite common for members of a company to supplement the corporate constitution with additional arrangements, such as shareholders' agreements, whereby they agree to exercise their membership rights in a certain way. Conceptually a shareholders' agreement fulfills many of the same functions as the corporate constitution, but because it is a contract, it will not normally bind new members of the company unless they accede to it somehow. One benefit of shareholders' agreement is that they will usually be confidential, as most jurisdictions do not require shareholders' agreements to be publicly filed. Another common method of supplementing the corporate constitution is by means of voting trusts, although these are relatively uncommon outside the United States and certain offshore jurisdictions. Some jurisdictions consider the company seal to be a part of the "constitution" (in the loose sense of the word) of the company, but the requirement for a seal has been abrogated by legislation in most countries.

Balance of power

The most important rules for corporate governance are those concerning the balance of power between the board of directors and the members of the company. Authority is given or "delegated" to the board to manage the company for the success of the investors. Certain specific decision rights are often reserved for shareholders, where their interests could be fundamentally affected. There are necessarily rules on when directors can be removed from office and replaced. To do that, meetings need to be called to vote on the issues. How easily the constitution can be amended and by whom necessarily affects the relations of power.

It is a principle of corporate law that the directors of a company have the right to manage. This is expressed in statute in the DGCL, where §141(a) states,

(a) The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors, except as may be otherwise provided in this chapter or in its certificate of incorporation.

In Germany, §76 AktG says the same for the management board, while under §111 AktG the supervisory board's role is stated to be to "oversee" (überwachen). In the United Kingdom, the right to manage is not laid down in law, but is found in Part.2 of the Model Articles. This means it is a default rule, which companies can opt out of (s.20 CA 2006) by reserving powers to members, although companies rarely do. UK law specifically reserves shareholders right and duty to approve "substantial non cash asset transactions" (s.190 CA 2006), which means those over 10% of company value, with a minimum of £5,000 and a maximum of £100,000. Similar rules, though much less stringent, exist in §271 DGCL and through case law in Germany under the so-called Holzmüller-Doktrin.

Probably the most fundamental guarantee that directors will act in the members' interests is that they can easily be sacked. During the Great Depression, two Harvard scholars, Adolf Berle and Gardiner Means wrote The Modern Corporation and Private Property, an attack on American law which failed to hold directors to account, and linked the growing power and autonomy of directors to the economic crisis. In the UK, the right of members to remove directors by a simple majority is assured under s.168 CA 2006 Moreover, Art.21 of the Model Articles requires a third of the board to put themselves up for re-election every year (in effect creating maximum three year terms). 10% of shareholders can demand a meeting any time, and 5% can if it has been a year since the last one (s.303 CA 2006). In Germany, where employee participation creates the need for greater boardroom stability, §84(3) AktG states that management board directors can only be removed by the supervisory board for an important reason (ein wichtiger Grund) though this can include a vote of no-confidence by the shareholders. Terms last for five years, unless 75% of shareholders vote otherwise. §122 AktG lets 10% of shareholders demand a meeting. In the US, Delaware lets directors enjoy considerable autonomy. §141(k) DGCL states that directors can be removed without any cause, unless the board is "classified", meaning that directors only come up for re-appointment on different years. If the board is classified, then directors cannot be removed unless there is gross misconduct. Director's autonomy from shareholders is seen further in §216 DGCL, which allows for plurality voting and §211(d) which states shareholder meetings can only be called if the constitution allows for it. The problem is that in America, directors usually choose where a company is incorporated and §242(b)(1) DGCL says any constitutional amendment requires a resolution by the directors. By contrast, constitutional amendments can be made at any time by 75% of shareholders in Germany (§179 AktG) and the UK (s.21 CA 2006).

Countries with co-determination employ the practice of workers of an enterprise having the right to vote for representatives on the board of directors in a company.

Director duties

In most jurisdictions, directors owe strict duties of good faith, as well as duties of care and skill, to safeguard the interests of the company and the members. In many developed countries outside the English speaking world, company boards are appointed as representatives of both shareholders and employees to "codetermine" company strategy. Corporate law is often divided into corporate governance (which concerns the various power relations within a corporation) and corporate finance (which concerns the rules on how capital is used).

Directors also owe strict duties not to permit any conflict of interest or conflict with their duty to act in the best interests of the company. This rule is so strictly enforced that, even where the conflict of interest or conflict of duty is purely hypothetical, the directors can be forced to disgorge all personal gains arising from it. In Aberdeen Ry v. Blaikie (1854) 1 Macq HL 461 Lord Cranworth stated in his judgment that,

"A corporate body can only act by agents, and it is, of course, the duty of those agents so to act as best to promote the interests of the corporation whose affairs they are conducting. Such agents have duties to discharge of a fiduciary nature towards their principal. And it is a rule of universal application that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting or which possibly may conflict, with the interests of those whom he is bound to protect... So strictly is this principle adhered to that no question is allowed to be raised as to the fairness or unfairness of the contract entered into..."

However, in many jurisdictions the members of the company are permitted to ratify transactions which would otherwise fall foul of this principle. It is also largely accepted in most jurisdictions that this principle should be capable of being abrogated in the company's constitution.

The standard of skill and care that a director owes is usually described as acquiring and maintaining sufficient knowledge and understanding of the company's business to enable him to properly discharge his duties. This duty enables the company to seek compensation from its director if it can be proved that a director has not shown reasonable skill or care which in turn has caused the company to incur a loss. In many jurisdictions, where a company continues to trade despite foreseeable bankruptcy, the directors can be forced to account for trading losses personally. Directors are also strictly charged to exercise their powers only for a proper purpose. For instance, were a director to issue a large number of new shares, not for the purposes of raising capital but in order to defeat a potential takeover bid, that would be an improper purpose.

Company law theory

Ronald Coase has pointed out, all business organizations represent an attempt to avoid certain costs associated with doing business. Each is meant to facilitate the contribution of specific resources - investment capital, knowledge, relationships, and so forth - towards a venture which will prove profitable to all contributors. Except for the partnership, all business forms are designed to provide limited liability to both members of the organization and external investors. Business organizations originated with agency law, which permits an agent to act on behalf of a principal, in exchange for the principal assuming equal liability for the wrongful acts committed by the agent. For this reason, all partners in a typical general partnership may be held liable for the wrongs committed by one partner. Those forms that provide limited liability are able to do so because the state provides a mechanism by which businesses that follow certain guidelines will be able to escape the full liability imposed under agency law. The state provides these forms because it has an interest in the strength of the companies that provide jobs and services therein, but also has an interest in monitoring and regulating their behaviour.

Litigation

Members of a company generally have rights against each other and against the company, as framed under the company's constitution. However, members cannot generally claim against third parties who cause damage to the company which results in a diminution in the value of their shares or others membership interests because this is treated as "reflective loss" and the law normally regards the company as the proper claimant in such cases.

In relation to the exercise of their rights, minority shareholders usually have to accept that, because of the limits of their voting rights, they cannot direct the overall control of the company and must accept the will of the majority (often expressed as majority rule). However, majority rule can be iniquitous, particularly where there is one controlling shareholder. Accordingly, a number of exceptions have developed in law in relation to the general principle of majority rule.

Where the majority shareholder(s) are exercising their votes to perpetrate a fraud on the minority, the courts may permit the minority to sue
members always retain the right to sue if the majority acts to invade their personal rights, e.g. where the company's affairs are not conducted in accordance with the company's constitution (this position has been debated because the extent of a personal right is not set in law). Macdougall v Gardiner and Pender v Lushington present irreconcilable differences in this area.
in many jurisdictions it is possible for minority shareholders to take a representative or derivative action in the name of the company, where the company is controlled by the alleged wrongdoers

Corporate finance

Through the operational life of the corporation, perhaps the most crucial aspect of corporate law relates to raising capital for the business to operate. The law, as it relates to corporate finance, not only provides the framework for which a business raises funds - but also provides a forum for principles and policies which drive the fundraising, to be taken seriously. Two primary methods of financing exists with regard to corporate financing, these are:

Equity financing; and
Debt financing

Each has relative advantages and disadvantages, both at law and economically. Additional methods of raising capital necessary to finance its operations is that of retained profits Various combinations of financing structures have the capacity to produce fine-tuned transactions which, using the advantages of each form of financing, support the limitations of the corporate form, its industry, or economic sector. A mix of both debt and equity is crucial to the sustained health of the company, and its overall market value is independent of its capital structure. One notable difference is that interest payments to debt is tax deductible whilst payment of dividends are not, this will incentivise a company to issue debt financing rather than preferred stock in order to reduce their tax exposure.

Shares and share capital

A company limited by shares, whether public or private, must have at least one issued share; however, depending on the corporate structure, the formatting may differ. If a company wishes to raise capital through equity, it will usually be done by issuing shares (sometimes called "stock" (not to be confused with stock-in-trade)) or warrants. In the common law, whilst a shareholder is often colloquially referred to as the owner of the company - it is clear that the shareholder is not an owner of the company but makes the shareholder a member of the company and entitles them to enforce the provisions of the company's constitution against the company and against other members. A share is an item of property, and can be sold or transferred. Shares also normally have a nominal or par value, which is the limit of the shareholder's liability to contribute to the debts of the company on an insolvent liquidation. Shares usually confer a number of rights on the holder. These will normally include:

voting rights
rights to dividends (or payments made by companies to their shareholders) declared by the company
rights to any return of capital either upon redemption of the share, or upon the liquidation of the company
in some countries, shareholders have preemption rights, whereby they have a preferential right to participate in future share issues by the company

Companies may issue different types of shares, called "classes" of shares, offering different rights to the shareholders depending on the underlying regulatory rules pertaining to corporate structures, taxation, and capital market rules. A company might issue both ordinary shares and preference shares, with the two types having different voting and/or economic rights. It might provide that preference shareholders shall each receive a cumulative preferred dividend of a certain amount per annum, but the ordinary shareholders shall receive everything else. Corporations will structure capital raising in this way in order to appeal to different lenders in the market by providing different incentives for investment. The total value of issued shares in a company is said to represent its equity capital. Most jurisdictions regulate the minimum amount of capital which a company may have, although some jurisdictions prescribe minimum amounts of capital for companies engaging in certain types of business (e.g. banking, insurance etc.). Similarly, most jurisdictions regulate the maintenance of equity capital, and prevent companies returning funds to shareholders by way of distribution when this might leave the company financially exposed. Often this extends to prohibiting a company from providing financial assistance for the purchase of its own shares.

Dissolution

Events such as mergers, acquisitions, insolvency, or the commission of a crime affect the corporate form. In addition to the creation of the corporation, and its financing, these events serve as a transition phase into either dissolution, or some other material shift.

Mergers and acquisitions

A merger or acquisition can often mean the altering or extinguishing of the corporation.

Corporate insolvency

If unable to discharge its debts in a timely manner, a corporation may end up on bankruptcy liquidation. Liquidation is the normal means by which a company's existence is brought to an end. It is also referred to (either alternatively or concurrently) in some jurisdictions as winding up or dissolution. Liquidations generally come in two forms — either compulsory liquidations (sometimes called creditors' liquidations) and voluntary liquidations (sometimes called members' liquidations, although a voluntary liquidation where the company is insolvent will also be controlled by the creditors, and is properly referred to as a creditors' voluntary liquidation). Where a company goes into liquidation, normally a liquidator is appointed to gather in all the company's assets and settle all claims against the company. If there is any surplus after paying off all the creditors of the company, this surplus is then distributed to the members.

As its names imply, applications for compulsory liquidation are normally made by creditors of the company when the company is unable to pay its debts. However, in some jurisdictions, regulators have the power to apply for the liquidation of the company on the grounds of public good, i.e., where the company is believed to have engaged in unlawful conduct, or conduct which is otherwise harmful to the public at large.

Voluntary liquidations occur when the company's members decide voluntarily to wind up the affairs of the company. This may be because they believe that the company will soon become insolvent, or it may be on economic grounds if they believe that the purpose for which the company was formed is now at an end, or that the company is not providing an adequate return on assets and should be broken up and sold off.

Some jurisdictions also permit companies to be wound up on "just and equitable" grounds. Generally, applications for just and equitable winding-up are brought by a member of the company who alleges that the affairs of the company are being conducted in a prejudicial manner, and asking the court to bring an end to the company's existence. For obvious reasons, in most countries, the courts have been reluctant to wind up a company solely on the basis of the disappointment of one member, regardless of how well-founded that member's complaints are. Accordingly, most jurisdictions that permit just and equitable winding up also permit the court to impose other remedies, such as requiring the majority shareholder(s) to buy out the disappointed minority shareholder at a fair value.

Insider dealing

Insider trading is the trading of a corporation's stock or other securities (e.g., bonds or stock options) by individuals with potential access to non-public information about the company. In most countries, trading by corporate insiders such as officers, key employees, directors, and large shareholders may be legal if this trading is done in a way that does not take advantage of non-public information. However, the term is frequently used to refer to a practice in which an insider or a related party trades based on material non-public information obtained during the performance of the insider's duties at the corporation, or otherwise in breach of a fiduciary or other relationship of trust and confidence or where the non-public information was misappropriated from the company. Illegal insider trading is believed to raise the cost of capital for securities issuers, thus decreasing overall economic growth.

In the United States and several other jurisdictions, trading conducted by corporate officers, key employees, directors, or significant shareholders (in the United States, defined as beneficial owners of ten percent or more of the firm's equity securities) must be reported to the regulator or publicly disclosed, usually within a few business days of the trade. Many investors follow the summaries of these insider trades in the hope that mimicking these trades will be profitable. While "legal" insider trading cannot be based on material non-public information, some investors believe corporate insiders nonetheless may have better insights into the health of a corporation (broadly speaking) and that their trades otherwise convey important information (e.g., about the pending retirement of an important officer selling shares, greater commitment to the corporation by officers purchasing shares, etc.)

Trends and developments

Most case law on the matter of corporate governance dates to the 1980s and primarily addresses hostile takeovers, however, current research considers the direction of legal reforms to address issues of shareholder activism, institutional investors and capital market intermediaries. Corporations and boards are challenged to respond to these developments. Shareholder demographics have been effected by trends in worker retirement, with more institutional intermediaries like mutual funds playing a role in employee retirement. These funds are more motivated to partner with employers to have their fund included in a company's retirement plans than to vote their shares – corporate governance activities only increase costs for the fund, while the benefits would be shared equally with competitor funds.

Shareholder activism prioritizes wealth maximization and has been criticized as a poor basis for determining corporate governance rules. Shareholders do not decide corporate policy, that is done by the board of directors, but shareholders may vote to elect board directors and on mergers and other changes that have been approved by directors. They may also vote to amend corporate bylaws. Broadly speaking there have been three movements in 20th century American law that sought a federal corporate law: the Progressive Movement, some aspects of proposals made in the early stages of the New Deal and again in the 1970s during a debate about the effect of corporate decision making on states. However, these movements did not establish federal incorporation. Although there has been some federal involvement in corporate governance rules as a result, the relative rights of shareholders and corporate officers is still mostly regulated by state laws. There is no federal legislation like there is for corporate political contributions or regulation of monopolies and federal laws have developed along different lines than state laws.

By region

Europe

European company law is the part of European Union law which concerns the formation, operation and insolvency of companies (or corporations) in the European Union. The EU creates minimum standards for companies throughout the EU, and has its own corporate forms. All member states continue to operate separate companies acts, which are amended from time to time to comply with EU Directives and Regulations. There is, however, also the option of businesses to incorporate as a Societas Europaea (SE), which allows a company to operate across all member states.

Germany

German company law (Gesellschaftsrecht) is an influential legal regime for companies in Germany. The primary form of company is the public company or Aktiengesellschaft (AG). A private company with limited liability is known as a Gesellschaft mit beschränkter Haftung (GmbH). A partnership is called a Kommanditgesellschaft (KG).

United Kingdom

The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is an island country in Northwestern Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales, and Northern Ireland.It includes the island of Great Britain, the north-eastern part of the island of Ireland, and most of the smaller islands within the British Isles. Northern Ireland shares a land border with the Republic of Ireland; otherwise, the United Kingdom is surrounded by the Atlantic Ocean, the North Sea, the English Channel, the Celtic Sea and the Irish Sea. The total area of the United Kingdom is 93,628 square miles (242,495 km²), with an estimated 2023 population of over 68 million people.

The United Kingdom has evolved from a series of annexations, unions and separations of constituent countries over several hundred years. The Treaty of Union between the Kingdom of England (which also included Wales) and the Kingdom of Scotland in 1707 resulted in their unification to become the Kingdom of Great Britain. Its union in 1801 with the Kingdom of Ireland created the United Kingdom of Great Britain and Ireland. Most of Ireland seceded from the UK in 1922, leaving the present United Kingdom of Great Britain and Northern Ireland, which formally adopted its name in 1927. The nearby Isle of Man, Guernsey and Jersey are not part of the UK, being Crown Dependencies, but the British government is responsible for their defence and international representation. The UK became the first industrialised country and was the world's foremost power for the majority of the 19th and early 20th centuries, particularly during the "Pax Britannica" between 1815 and 1914. The British Empire, at its height in the 1920s, encompassed almost a quarter of the world's landmass and population, and was the largest empire in history; however, its involvement in the First World War and the Second World War, the cumulative crisis and the loss of prestige led to the decolonization of most of the British colonies and the eventual end of the Empire. A part of the core Anglophonic world, British influence can be observed in the language, culture, legal and political systems of many of its former colonies. The UK's culture remains globally influential, particularly in literature, music and sport.

The United Kingdom is a constitutional monarchy and parliamentary democracy. The capital and largest city of the United Kingdom (as well as the capital of England) is London, a megacity which, alongside New York City, is one of the world's two leading financial centres. The cities of Edinburgh, Cardiff, and Belfast are respectively the national capitals of Scotland, Wales, and Northern Ireland. Other major cities include Birmingham, Manchester, Glasgow, and Leeds. The UK consists of three distinct legal jurisdictions: England and Wales, Scotland, and Northern Ireland. This is due to these areas retaining their existing legal systems even after joining the UK. Since 1998, Scotland, Wales, and Northern Ireland also have their own devolved governments and legislatures, each with varying powers.

The UK has the world's sixth-largest economy by nominal gross domestic product (GDP), and the tenth-largest by purchasing power parity. It is a recognised nuclear state and is ranked fourth globally in military expenditure.^] The UK has been a permanent member of the UN Security Council since its first session in 1946. It is a member of the Commonwealth of Nations, the Council of Europe, the G7, the OECD, NATO, the Five Eyes, AUKUS and the CPTPP.

United States

In the United States, most corporations are incorporated, or organized, under the laws of a particular state. The laws of the state of incorporation normally governs a corporation's internal operations, even if the corporation's operations take place outside that state. Corporate law differs from state to state. Because of these differences, some businesses will benefit from having a corporate lawyer determine the most appropriate or advantageous state in which to incorporate.

Business entities may also be regulated by federal laws and in some cases by local laws and ordinances.

Delaware

A majority of publicly traded companies in the U.S. are Delaware corporations. Some companies choose to incorporate in Delaware because the Delaware General Corporation Law offers lower corporate taxes than many other states. Many venture capitalists prefer to invest in Delaware corporations. Also, the Delaware Court of Chancery is widely recognized as a good venue for the litigation of business disputes.

Slavery at common law

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Slavery_at_common_law

Slavery at common law in the British Empire developed slowly over centuries, and was characterised by inconsistent decisions and varying rationales for the treatment of slavery, the slave trade, and the rights of slaves and slave owners. Unlike in its colonies, within the home islands of Britain, until 1807, except for statutes facilitating and taxing the international slave trade, there was virtually no legislative intervention in relation to slaves as property, and accordingly the common law had something of a "free hand" to develop, untrammelled by the "paralysing hand of the Parliamentary draftsmen". Two attempts to pass a slave code via Parliament itself both failed, one in the 1660s and the other in 1674.

Some scholars assert slavery was not recognised as lawful, often on the basis of pronouncements such as those attributed to Lord Mansfield, that "the air of England is too pure for any slave to breathe". However the true legal position has been both complex and contested. In the 17th and 18th centuries, some African slaves were openly held, bought, sold, and searched for when escaping within Britain.

Early common law

There was an Irish decree in 1171 "that all the English slaves in the whole of Ireland, be immediately emancipated and restored to their former liberty". The same source indicates that slavery in England was abolished by a general charter of emancipation in 1381. Other historical sources for such an emancipation proclamation appear thin, although the date would coincide with the Peasants' Revolt, after which a number of concessions were made by the 14-year-old King Richard II, which were later rescinded. Certainly villeinage continued in England, slowly decaying, until the last villein died in the early 17th century.

In later common law cases, none of the foregoing decrees or proclamations were cited or referred to as binding law in relation to the status of slaves generally.

Cartwright's case

In 1569, a man, Cartwright, was observed savagely beating another, which in law would have amounted to a battery, unless a defence could be mounted. Cartwright averred that the man was a slave whom he had brought to England from Russia, and thus such chastisement was not unlawful. The case is reported by John Rushworth in his 1680 summary of John Lilburne's case of 1649. He wrote: "Whipping was painful and shameful, Flagellation for Slaves. In the Eleventh of Elizabeth [i.e., 1569], one Cartwright brought a Slave from Russia, and would scourge him, for which he was questioned; and it was resolved, That England was too pure an Air for Slaves to breath in. And indeed it was often resolved, even in Star-Chamber, That no Gentleman was to be whipt for any offence whatsoever; and his whipping was too severe." It is reported that the court held that the man must be freed, and it is often said that the court held "that England was too pure an air for a slave to breathe in."

It is unclear if the effect of the case was to actually make slavery in England illegal, but rather generally to impose limits on the physical punishment on slaves [citation needed]. In none of subsequent common law cases prior to Somersett's case was Cartwright's case cited as authority for the proposition that slavery was unlawful [citations needed]. However, those disputes predominantly concerned disputes between slave merchants (the notable exception being Shanley v Harvey, as to which see below), for whom it would have been commercially unwise to plead that slavery was unlawful [citations needed].

It is inferred that, because he was from Russia, Cartwright's slave was white, and probably a Christian, although this is not recorded. However, it is possible that he was African, as, although they were uncommon, African slaves in Russia were not unknown prior to the emergence of the Atlantic slave trade.

African slave trade and the common law

However, the initial opposition of the courts of England to the status of slavery began to change with the rising importance of the African slave trade. An extensive traffic in black slaves from Africa began in the 17th century, primarily to supply labour for the sugar and tobacco plantations in British colonies abroad. In the Caribbean, Barbados became an English Colony in 1624 and Jamaica in 1655. These and other Caribbean colonies became the centre of wealth and the focus of the slave trade for the growing English empire. In 1660, what became the Royal African Company was chartered by King Charles II with a monopoly in the trade. The Royal African Company, governed by James, Duke of York, the king's brother, was central to England's slave trade, and its commercial disputes over slavery soon presented the English courts with novel legal questions. Under the lex mercatoria slaves were sometimes treated as chattels, with few if any rights, but the English courts did not always recognise mercantile custom as law, and even in English mercantile law, the subject was disputed. The question arose in English courts because personal actions could be laid in England even if the cause of action arose abroad. In 1698, an act of parliament opened the slave trade to all English subjects. In the 18th century, owners in England would advertise their sales of African slaves and also for the return of runaway slaves.

Butts v. Penny and Defining People as Property

In 1677, after the Royal African Company went bankrupt, the high court of King's Bench intervened to change the legal rationale for slavery from feudal law to the law of property. In 1677 in Butts v. Penny the courts held that an action for trover (a kind of trespass) would lie for black people, as if they were chattels. The rationale was that infidels could not be subjects because they could not swear an oath of allegiance to make them so (as determined in Calvin's Case in 1608). As aliens, they could be considered as "goods" rather than people for purposes of trade. Chief Justice Holt rejected such a status for people in Harvey v. Chamberlain in 1696, and also denied the possibility of bringing an assumpsit (another kind of trespass) on the sale of a black person in England: "as soon as a negro comes to England he is free; one may be a villein in England, but not a slave." It is alleged that he commented as an aside in one case that the supposed owner could amend his declaration to state that a deed was created for the sale in the royal colony of Virginia, where slavery was recognised by colonial law, but such a claim goes against the main finding in the case. In 1706 Chief Justice Holt refused an action of trover in relation to a slave, holding that no man could have property in another, but held that an alternative action, trespass quare captivum suum cepit, might be available.

Ultimately the Holt court decisions had little long-term effect. Slaves were regularly bought and sold on the Liverpool and London markets, and actions on contract concerning slaves were common in the 18th century without any serious suggestion that they were void for illegality, although the York-Talbot position, discussed below, probably helped to create that legal stability. In 1700 there was no extensive use of slave labour in England as in the colonies. African servants were common as status symbols, but their treatment was not comparable to that of plantation slaves in the colonies. The legal problems that were most likely to arise in England were if a slave were to escape in transit, or if a slave-owner from the colonies brought over a slave and expected to continue exercising his power to prevent the slave from leaving his service. Increasing numbers of slaves were brought into England in the 18th century, and this may help to explain the growing awareness of the problems presented by the existence of slavery. Quite apart from the moral considerations, there was an obvious conflict between defining property in slaves and an alternative English tradition of freedom protected by habeas corpus. If the courts acknowledged the property which was generally assumed to exist in slaves in the colonies, how would such property rights be treated if a slave was subsequently brought to England?

The Yorke–Talbot slavery opinion

However, the decisions of the Holt court in the wake of the Glorious Revolution had caused sufficient consternation as to the legal status of slaves that some slave owners sought clarity of the law. In 1729 various slave owners obtained the Yorke–Talbot slavery opinion made by the Crown's principal law officers at one of the Inns of Court. The law officers opined that under English law (i) a slave's status did not change when he came to England, (ii) a slave could be compelled to return to the colonies from England, and (iii) that baptism would not manumit a slave. The opinion cited no authorities, and set out no legal rationale for the views expressed in it, but it was widely published and relied upon. One of the authors of the opinion, Lord Hardwicke (although at the time he was only known as Philip Yorke), subsequently endorsed the views expressed in the opinion (although not expressly referring to it) whilst sitting in judicial capacity in Pearne v Lisle (1749) Amb 75, 27 ER 47. The case revolved around title to fourteen slaves who were in Antigua, and involved a number of technical points as to colonial law. But Lord Hardwicke held that slavery was not contrary to English law, and that as the common law of England applied at the time to Antigua, that slavery was not unlawful in Antigua.

At this time the cases in which the English courts had recognised property in slaves had arisen from purely commercial disputes and did not establish any rights exercisable as against the slaves themselves, if the slave was within the jurisdiction. As with villeins centuries before, the analogy with chattels (as between putative owners) failed to answer the leading question whether slaves could establish their freedom by bringing suit in the courts (as between slave and owner). The writ de homine replegiando was outmoded, and so the usual eighteenth-century question was whether habeas corpus lay to free slaves from captivity. Sir William Blackstone was in no doubt that "the spirit of liberty is so deeply ingrained in our constitution" that a slave, the moment he lands in England, is free. Other prominent lawyers, such as Lord Hardwicke and Lord Mansfield, felt that it was better to recognise slavery, and to impose regulation on the slave trade rather than to withdraw from it, since less enlightened nations would reap the benefits of abolition and slaves would suffer the consequences. The "infidel" argument for maintaining African slaves as chattels was abandoned in the middle of the 18th century, since by then many slaves had been converted to Christianity without gaining de facto freedom; and legal justifications for slave ownership were now sought by analogy with the old law of villeinage.

Shanley v Harvey

In Shanley v Harvey (1763) 2 Eden 126, a claim was instituted by Shanley as administrator of the estate of his deceased niece.

Shanley had brought Harvey as a child slave, to England, 12 years earlier and had given him to his niece. She had him baptised and had changed his name. She became very ill and about an hour before her death, she gave Harvey about £800 in cash (a substantial sum in those days), asked him to pay the butcher's bill and to make good use of the money. After her death, Shanley brought an action against Harvey to recover the money.

Lord Henley, the Lord Chancellor, dismissed the action, with costs against Shanley. In his judgment he held that as soon as a person set foot on English soil, he or she became free and that a "negro" might maintain an action against his or her master for ill usage, together with an application for habeas corpus if detained. However, such comments were not necessary for the decision in the case, and in law were only obiter dictum and not binding on subsequent courts.

R v Stapylton

One of the few non-commercial disputes relating to slavery arose in R v Stapylton (1771, unreported) in which Lord Mansfield sat. Stapylton was charged after attempting to forcibly deport his purported slave, Thomas Lewis. Stapylton's defence rested on the basis that as Lewis was his slave, his actions were lawful.

Lord Mansfield had the opportunity to use a legal procedure at the time in criminal cases referred to as the Twelve Judges to determine points of law (which were not for the jury) in criminal matters. However, he shied away from doing so, and sought (unsuccessfully) to dissuade the parties from using the legality of slavery as the basis of the defence.

In the end Mansfield directed the jury that they should presume Lewis was a free man, unless Stapylton was able to prove otherwise. He further directed the jury that unless they found that Stapylton was the legal owner of Lewis "you will find the Defendant guilty". Lewis was permitted to testify. The jury convicted. However, in the course of his summing up, Lord Mansfield was careful to say "whether they [slave owners] have this kind of property or not in England has never been solemnly determined."

James Somersett's case

The question of a slave's rights as against his putative master (as opposed to merchants' rights as against each other) eventually came before Lord Mansfield and the King's Bench in 1771. A writ of habeas corpus had been issued to secure the release of James Somersett, a black man confined in irons on board a ship arrived in the Thames from Virginia, bound for Jamaica, and the return stated that he was a slave under the law of Virginia. Lord Mansfield was anxious to avoid the issue principle, and pressed the parties to settle; but the case was taken up by the West India merchants, who wanted to know whether slaves were a safe investment, and by abolitionists such as Granville Sharp, so that it became a cause célèbre.

Delivering his judgement, Lord Mansfield stated that slavery was so 'odious' that it could only be introduced by positive (i.e. statute) law, of which there was none in English law. He ordered that "the black must be discharged", granting Stewart freedom.

The judgement had far-reaching implications. In his book on King George III, Andrew Roberts argues that it added another reason for American colonists to oppose British rule, particularly those in the south, who might otherwise have been expected to have been less supportive of American independence. Answering this as well as Somersett's council who had put pressure on the court by observing the very large profits dependent on slavery, Mansfield said, "fiat justitia, ruat cælum, let justice be done whatever be the consequence."

R v Inhabitants of Thames Ditton

Lord Mansfield subsequently commented upon his decision in the Somersett case in R v Inhabitants of Thames Ditton (1785) The official report notes that Mansfield expressed the view during counsel's argument that his ruling in the Somerset case decided only that a slave could not be forcibly removed from England against his will: "The determinations go no further than that the master cannot be force compel him to go out of the kingdom." In Thames Ditton a black woman by the name of Charlotte Howe had been brought to England as a slave by one Captain Howe. After Captain Howe died Charlotte sought poor relief from the Parish of Thames Ditton. Mansfield stated that the Somersett case had only determined that a master could not force a slave to leave England, much as in earlier times a master could not forcibly remove his villein. He ruled that Charlotte was not entitled to relief under Poor Laws because relief was dependent on having been "hired", and this did not relate to slaves.

Joseph Knight's case

In 1777 after the Mansfield decision in England, a servant in Scotland, Joseph Knight, sought the freedom to leave the employment of John Wedderburn of Ballendean, and claimed in his pleadings that the very act of landing in Scotland freed him from perpetual servitude, as slavery was not recognised in Scotland (records do not now record whether this was on the basis of the Mansfield decision). Many years earlier Knight had been purchased by Wedderburn in Jamaica from a slave trader, although his status at the time of the trial was the subject of disagreement (Knight averred that Wedderburn wished to take him back to Jamaica to sell him on as a slave in the colonies, which Wedderburn denied).

The case caused disagreement in the courts as Wedderburn insisted that slavery and perpetual servitude were different states. He argued that in Scots law Knight, even though he was not recognised as a slave, was still bound to provide perpetual service in the same manner as an indentured servant or an apprenticed artisan. The Justices of the Peace in Perth, at first instance, found in favour of Wedderburn. However, when Knight then appealed to the Sheriff Deputy the first instance decision was then overturned. Wedderburn then made a further appeal to the Lords of Council and Session. The Court of Session emphatically rejected Wedderburn's appeal, ruling that "the dominion assumed over this Negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent: That, therefore, the defender had no right to the Negro’s service for any space of time, nor to send him out of the country against his consent: That the Negro was likewise protected under the act 1701, c.6. from being sent out of the country against his consent."

Evidence presented by both sides in the case survives in the National Archives of Scotland (reference CS235/K/2/2).[1] Henry Dundas, then Lord Advocate, acted for Knight.

Zong massacre

A painting entitled "The Slave Ship" by J. M. W. Turner. In the background, the sun shines through a storm while large waves hit the sides of a sailing ship. In the foreground, slaves are drowning in the water, while others are being eaten by large fish — *The Slave Ship*, J. M. W. Turner's representation of the mass murder of slaves, inspired by the *Zong* killings^[21]

In late November or early December 1781 the captain and crew of the English slave ship, Zong, threw various African slaves into the sea off the island of Hispaniola, to save the lives of the remaining slaves as provisions were short. The shipowners then sought to claim under policies of insurance, arguing that jettisoning the cargo constituted a recoverable loss, even though it necessarily resulted in the murder of the slaves. In the first round of legal proceedings a jury initially held for the shipowners and upheld the claim. On a subsequent application to set that judgment aside, Lord Mansfield indicated that the jury in the initial trial "had no doubt (though it shocks one very much) that the Case of Slaves was the same as if Horses had been thrown over board". That finding was overturned and fresh trial ordered, but in both legal actions it was accepted in principle by the court that the killing of the negro slaves was permissible, and did not thereby invalidate the insurance by virtue of being an unlawful act. Shortly afterwards provisions in the Slave Trade Act 1788 made it unlawful to insure against similar losses of slaves.

R v Hodge

In 1811, Arthur Hodge became the first (and only) British subject ever to stand trial for the murder of a slave. As part of his defence, Hodge argued that "A Negro being property, it was no greater offense for his master to kill him than it would be to kill his dog," but the court did not accept the submission, and point was dismissed summarily. Counsel for the prosecution also obliquely referred to the Amelioration Act 1798 passed by the Legislature of the Leeward Islands, which applied in the British Virgin Islands. That Act provided for penalties for slave owners who inflicted cruel or unusual punishments on their slaves, but it only provides for fines, and does not expressly indicate that a slave owner could be guilty of a greater crime such as murder or another offence against the person.

The trial took place under English common law in British Virgin Islands. However, there was no appeal (Hodge was executed a mere eight days after the jury handed down their verdict). The jury (composed largely of slave owners) actually recommended mercy, but the court nonetheless sentenced Hodge to death, and so the directions of the trial judge are not treated by commentators as an authoritative precedent.

Forbes v Cochrane

Confirmation of the Mansfield ruling, that "positive law" would be required to make slavery lawful, appears in the judgment of Mr. Justice Best in Forbes v Cochrane in 1824. He said, "There is no statute recognising slavery which operates in that part of the British empire in which we are now called upon to administer justice." He described the Somerset case as entitling a slave in England to discharge (from that status), and rendering any person attempting to force him back into slavery as guilty of trespass.^[27] But not all reports of the case agree.

Subsequent legislation

The common law, ultimately, would go no further. But the decision of 1772 in James Somersett's case was widely interpreted as making slavery illegal. Whilst some academics have disupted this, the perception was fuelled by the growing abolitionist movement, notwithstanding this was scarcely an accurate reflection of the decision. Slavery did not, like villeinage, die naturally from adverse public opinion, because vested mercantile interests were too valuable. In 1788 the Slave Trade Act 1788 was passed, partly in response to the Zong Massacre to ameliorate the conditions under which slaves might be transported (the Act would be renewed several times before being made permanent in 1799). In 1792 the House of Commons voted in favour of "gradual" abolition, and in 1807 Parliament outlawed the African slave trade by legislation. This prevented British merchants exporting any more people from Africa, but it did not alter the status of the several million existing slaves, and the courts continued to recognise colonial slavery. The abolitionists therefore turned their attention to the emancipation of West Indian slaves. Legally, this was difficult to achieve, since it required the compulsory divesting of private property; but it was finally done in 1833, at a cost of £20 million paid from public funds to compulsorily purchase slaves from their owners and then manumit them. Freed slaves themselves received no compensation for their forced labour. From 1 August 1834, all slaves in the British colonies were "absolutely and forever manumitted."

In British colonies, it was widely assumed that positive law was needed to make slavery lawful, and various royal colonies passed laws to this effect.

Measles resurgence in the United States

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Measles_resurgence_in_the_United_States

Measles was declared eliminated from the United States in 2000 by the World Health Organization due to the success of vaccination efforts. However, it continues to be reintroduced by international travelers, and in recent years, anti-vaccination sentiment has allowed for the reemergence of measles outbreaks.

In 2018, 371 cases of measles were confirmed in the United States. From January to August 2019, 1215 cases across 30 states had been confirmed as measles by the Centers for Disease Control and Prevention (CDC). This is the largest number of cases in one calendar year since the disease was declared eliminated. In 2019, a state of emergency was declared in New York City and Washington in response to the extremely contagious disease. There is concern that the World Health Organization (WHO) may rescind the U.S.'s measles elimination status.

The vast majority of people infected had not received vaccination and were living in close-knit communities where the immunization rate is lower than average. The director of the National Institutes of Health wrote in 2016 that parents refusing to vaccinate their children were leading to outbreaks of preventable diseases, including measles. The World Health Organization also reported that the rise in measles is a direct result of anti-vaccination movements. The recommended measles vaccination protocol is to receive two doses, at least one month apart. One dose of the vaccination is 93 percent effective at preventing measles, while two doses is 97 percent effective.

Measles is one of the most contagious of infectious diseases. If not immunized, a person exposed to someone with measles has a 95% chance of becoming infected. During the early stage of an outbreak in an unvaccinated population, each infected person spreads the disease to an average of 12 to 18 other people.

History

Before the vaccine was available in the United States, the Centers for Disease Control and Prevention (CDC) estimated that about three to four million were infected each year, of which approx. 500,000 were reported, with 400 to 500 people dying and 48,000 being hospitalized as a result. The last major outbreak was before the disease was eliminated, and occurred from 1989 to 1991. During this outbreak, 123 people died, the majority of whom were preschool children.

In the United States on average, two or three out of every 1000 children infected will die, and one will develop complications that often result in permanent brain damage.

The 2019 outbreak prompted President Donald Trump to shift away from his previous goal of spacing out vaccinations, and to insist that parents must vaccinate their children, stating "They have to get the shots. The vaccinations are so important". The Trump Administration also took a forceful position of requiring vaccination, with Trump's Surgeon General Jerome Adams calling for limitations on exemptions to vaccination.

Local outbreaks

There was one outbreak in 2015, involving 147 cases linked to exposure at Disneyland in California; one outbreak in 2017, among a largely unvaccinated Somali community in Minnesota; and 17 reported outbreaks in 2018. In 2019, cases were reported in 23 states, and the total number of reported cases (764) reached the highest number in 25 years by April. More than 500 of these cases were people who were not vaccinated against measles, and another 125 had an unknown vaccination status. The bulk of those infected were from the Orthodox Jewish communities in and around New York City.

Washington and Oregon

The areas surrounding Vancouver, Washington, namely in Clark County, experienced an outbreak of measles in late 2018 and early 2019. The area was referred to as an "anti-vaccination hotspot" and the vaccination rate was 78%, which is too low for herd immunity. Oregon had reported that four residents have contracted measles due to the outbreak in neighboring Clark County.

As of April 2019, 74 confirmed cases of measles had been reported to the health department. More than half of those who fell ill were under the age of 10, and 70 of them had not been vaccinated or had unknown vaccination status. The remaining three people had received one dose of the measles vaccine.

In response to the outbreak, Representative Paul Harris proposed a measure that would remove the ability for parents to refuse any of the required childhood vaccines for philosophical reasons, otherwise keeping medical and religious exemptions. The bill was later amended to limit exemptions for the measles, mumps, rubella vaccine (MMR) vaccine. Children would not be allowed to attend public or private schools or day-care without evidence of vaccination or approved exemption documents. The bill was passed in April 2019.

New York

New York experienced outbreaks in New York City and Rockland County in 2018 and 2019.

Between October 2018 and April 2019, 423 confirmed cases of measles were reported in New York City. The areas of Williamsburg and Borough Park, two Brooklyn neighborhoods with a high concentration of Orthodox Jews, have been most heavily affected. In response to the outbreak, Mayor Bill de Blasio declared a state of emergency and ordered mandatory vaccinations in the neighborhoods corresponding to the zip codes 11205, 11206, 11211, and 11249. It required that everyone living or working in the neighborhood who is more than six months old receive a vaccination or be subject to a $1,000 fine. Prior to the order, the health commissioner had required schools and day care centers in the area deny service to unvaccinated students to prevent the disease from spreading. In April, city officials ordered the closure of a preschool that refused to cooperate with requests for vaccination information.

From October to April, 153 cases of measles were confirmed in Rockland County, New York. Despite 17,000 doses of the MMR vaccination being given, the vaccination rate of children in the area was 72.9 percent as of April.

In December 2018, public health officials in Rockland County banned unvaccinated students from attending school. Parents of 42 students at Green Meadow Waldorf School, a private school, sued the Rockland County health department, but a judge denied the request to overturn the order. According to the health department, Green Meadow Waldorf School had a 56% vaccination rate.

In March 2019, a flight attendant flew from NYC to Tel Aviv, Israel. Passengers on the flight were informed several days later that the woman had developed measles encephalitis and is in the Intensive Care Unit (ICU) on a ventilator. The Israeli Ministry of Health reported that the woman may have been exposed in New York or in Israel.

In April 2019, a state of emergency was declared in Rockland County, and unvaccinated children were barred from public places for 30 days. Parents of unvaccinated children that did not abide by this condition faced up to six months in jail or a $500 fine. A judge later lifted this ban, saying that the outbreak did not qualify for an emergency order. That month, New York began considering legislation to join the seven states and Washington DC that allow children 14 years and older to seek vaccination without parental consent.

In June 2019, New York State enacted a law repealing religious and philosophical exemptions for vaccination. The association of the outbreak with the Jewish community led to a rise in instances of antisemitism being expressed in New York.

Michigan

A man from Israel traveled into New York, where he spent a few weeks before making his way to Michigan in March 2019, while unknowingly infected with measles. Health officials reported that he spread the virus to 38 people there. Because he was fundraising for Orthodox Jewish charities, he visited several synagogues each day while there. The man, who was not a US citizen, told health officials through a translator that he believed that he was immune to measles because he had it as a child.

People do not acquire measles again after infection, so Doctors believe he was either lying about prior infection, or perhaps due to being a citizen of Europe, had rubella (German Measles) which is a different virus, that shares symptoms with measles.

New Jersey

The CDC declared an outbreak in New Jersey in late 2018. 30 of the 33 confirmed cases were in Ocean County. It was determined that measles was contracted by a person who traveled to Israel and spread the virus upon returning to New Jersey.

California

The CDC tracks the rate of vaccination at kindergartens. While statewide, California has a 97 percent vaccination rate for kindergarteners, some schools, particularly in the Bay Area, have vaccination rates below 50%. In 2018, the Santa Cruz Waldorf School in Santa Cruz had a vaccination rate of 33 percent. In 2014, Berkeley Rose School, a Waldorf school in Alameda County, had a vaccination rate of 13 percent. In 2016, California eliminated "philosophical objections" as a reason for parents to refuse to vaccinate their children. Following this, the vaccination rate at Berkeley Rose increased to 57 percent.

During the Disneyland measles outbreak, in 2015, a person infected with measles exposed others while visiting Disneyland. This led to the infection of 131 California residents, as well as people in six other states, Canada, and Mexico. Following this outbreak, California changed its vaccination laws to only allow vaccination exemptions for those with medical conditions.

From January to April 2019, 21 cases of measles were reported in California. The CDC published in the Morbidity and Mortality Weekly Report a summary of one outbreak caused by an unvaccinated teenager traveling to England.

During the 2019 resurgence that April, two California universities, Cal State Los Angeles and University of California, Los Angeles, had to quarantine over 300 students and faculty to prevent the spread of measles after persons now known to have measles used public buildings.

American Samoa

On December 8, 2019, American Samoa declared an outbreak of measles, after nine positive cases, four of which are suspected of being locally transmitted.

Combating methods

With the 2019 outbreak, the CDC stated that it may use its ability to put people on a "Do Not Board" list for air travel should people known to be carrying measles continue to fly. This list was established in 2007, to combat tuberculosis, but was used to restrict travel of two people during the 2014 measles outbreak. The CDC has, in the past, told some individuals that they believe might have been infected with measles to not use air travel, with those patients voluntarily agreeing to alter travel plans. The CDC states that normally it would be extremely rare to catch measles from an infected passenger due to the overall high rate of vaccinated passengers on average, but the recent anti-vaccination trends threatens to disrupt that model.

Social media platforms have made their own efforts to prevent the dissemination of false anti-vaccination claims. As of September 2018, Pinterest had banned users from searching for content about vaccines. In January 2019, Facebook announced that it will be banning posts promoting anti-vaccination propaganda, and the website will no longer be suggesting anti-vaccination pages or groups for users to join. In February 2019, YouTube stated that any user or channel endorsing anti-vaccination content will be demonetized entirely, and not receive any funding for advertisements played before videos.

A number of U.S. states tightened vaccine exemptions in the wake of the outbreak, including New York, Washington, and Maine. Vaccination opponents forced a referendum on the issue in Maine, but the new restrictions prevailed with over 70% of voters supporting them.

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Sunday, August 27, 2023

Corporate law

Overview

History

Corporate structure

Corporate legal personality

Capacity and powers

Corporate crime

Corporate governance

Constitution

Balance of power

Director duties

Company law theory

Litigation

Corporate finance

Shares and share capital

Dissolution

Mergers and acquisitions

Corporate insolvency

Insider dealing

Trends and developments

By region

Europe

Germany

United Kingdom

United States

Delaware

Slavery at common law

Early common law

Cartwright's case

African slave trade and the common law

Butts v. Penny and Defining People as Property

The Yorke–Talbot slavery opinion

Shanley v Harvey

R v Stapylton

James Somersett's case

R v Inhabitants of Thames Ditton

Joseph Knight's case

Zong massacre

R v Hodge

Forbes v Cochrane

Subsequent legislation

Measles resurgence in the United States

History

Local outbreaks

Washington and Oregon

New York

Michigan

New Jersey

California

American Samoa

Combating methods

Entropy (information theory)