1 Abstract: Disqualification of governing body members (and other persons) from their positions in a business corporation As of 1 January 2014 a new act no. 90/2012 Coll., Business Corporations Act, has been effective in the Czech Republic. Among the other new legal instruments, the Act has incorporated a regulation of disqualification of governing body members (and other persons) from their positions in a business corporation. This master thesis aims at determination of particular grounds for the disqualification and impacts of its application. Further, persons who may be disqualified under the pursuant to the particular grounds are defined in the thesis. The aim of the thesis is to find a general rules governing the disqualification and to determine limits of its application. The thesis also defines other persons (positions) which the disqualified person will not be allowed to hold and perform due to the court's decision. The author uses descriptive and analytical methods to interpret the legal regulation, which is joined with comparison of Czech and British legislation as the British legislation was one of the main sources. The Act is interpreted based on grammatical, logical, teleological, systematic, and partially historical interpretation methods. Within the comparison the author focuses on the...

Magister Legum - LLM / If a company is harmed by the behaviour of a director as a result of financial misstatements, shareholders may suffer the economic consequences in the form of a diminution in the value of their shares. Failure on directorship level in these circumstances has on more than one occasion resulted in aggrieved shareholders seeking to recover damages suffered and losses incurred in terms of section 218(2) of the Companies Act 2008. This was the situation in the recent cases, Hlumisa Investment Holdings (RF) Limited v Kirkinis and in Itzikowitz v Absa Bank Limited. While I am unaware of any reported case arising from the much-publicised Steinhoff scandal, there appear to be moves in the direction of court action to recover pure economic loss. Steinhoff shareholders are seeking to hold the retail group‘s directors to account. Scandals like Steinhoff and African bank are disturbing because it points to a lack of clarity and certainty in South African company laws in respect of director‘s personal liability in these circumstances. It is for this reason that this study investigates whether shareholders can institute personal liability claims against directors for causing shareholders a diminution of the value of the shares in the company as a result of poor decision making on directorship level, since such a loss is merely reflective of the company‘s loss. Although, after Itzikowitz v Absa Bank Limited, the position seems to be settled in our law, we still have incidences where shareholders are seeking to hold directors personally liable for the diminution in share price under section 218(2) of the Companies Act 2008. It is for this reason that the study explores the scope of section 218(2) and investigates many related questions surrounding section 218(2), in light of directors‘ personal liability and shareholder protection.

The duty to act with the diligence of a professional manager and consequences of the violation of this duty This thesis deals with the duty to act with the diligence of a professional manager and the consequences of doing so. The author of the thesis tries to define in detail the duty to act with the diligence of a professional manager as a standard form of conduct and its individual definition components and also the consequences that occur in case of breach of this duty. The thesis defines the theoretical basis and tries to critically evaluate problematic issues related to this standard of conduct and to bring their own opinion on the matter.The thesis is divided into six parts. The first part deals with the master-agent issues and the related costs of representation. Shortly, attention is paid to the fiduciary duty and the reasons for its anchoring in general. The second chapter deals with the development of the duty to act with the diligence of a professional manager from the time of the General Austrian Civil Code of Law to legislation in the Civil Code in force and the Business Corporations Act. The third chapter defines individual elements of the care of a professional manager, namely the duty of loyalty, due care and necessary knowledge, with a partial overlap into foreign legal systems....

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This dissertation envisages the investigation and determination of the possible correlation between the two phenomena, state custodianship and trusteeship with specific reference to land trusts. Custodianship, as captured in the Mineral and Petroleum Resources Development Management Act 28 of 2002, and trusteeship, as embodied in the South African Development Trust legislation, being the Native Trust and Land Act 18 of 1936; the Ingonyama Trust Act 3 of 1994 as enacted by the KwaZulu Legislature on the 24th of April 1994, amended with the status of a national Act (provincial Act) in 1997, and re-enacted [by the RSA Parliament] as the KwaZulu-Natal Ingonyama Trust Act 3 of 1994, and the National Water Act 54 of 1956, all confer upon a certain body, the fiduciary obligation to hold, protect and manage certain resources in the interest of a particular designated group of people. The objective of this study is, therefore, to analyse the trust notion as it functioned in terms of the SADT legislation, ITA and the NWA, and compare it to the novel concept of custodianship as it emanates from the MPRDA in order to determine the inherent similarities and differences as well as the implications thereof. This will assist in determining the true nature and impact of the notion of state custodianship as introduced by the MPRDA. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

This dissertation envisages the investigation and determination of the possible correlation between the two phenomena, state custodianship and trusteeship with specific reference to land trusts. Custodianship, as captured in the Mineral and Petroleum Resources Development Management Act 28 of 2002, and trusteeship, as embodied in the South African Development Trust legislation, being the Native Trust and Land Act 18 of 1936; the Ingonyama Trust Act 3 of 1994 as enacted by the KwaZulu Legislature on the 24th of April 1994, amended with the status of a national Act (provincial Act) in 1997, and re-enacted [by the RSA Parliament] as the KwaZulu-Natal Ingonyama Trust Act 3 of 1994, and the National Water Act 54 of 1956, all confer upon a certain body, the fiduciary obligation to hold, protect and manage certain resources in the interest of a particular designated group of people. The objective of this study is, therefore, to analyse the trust notion as it functioned in terms of the SADT legislation, ITA and the NWA, and compare it to the novel concept of custodianship as it emanates from the MPRDA in order to determine the inherent similarities and differences as well as the implications thereof. This will assist in determining the true nature and impact of the notion of state custodianship as introduced by the MPRDA. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

The duty of loyalty of a member of a business company This thesis deals with the topic closely connected with the field of corporate governance which is a part of corporate law. According to the American legal theory is duty of loyalty one of the fiduciary duties. The traditional classification of fiduciary duties is based on dualism - duty of loyalty and duty of care. But this concept is changing over time mainly due to case law. There is no settled opinion on the basic question how many fiduciary duties there are. Current opinion of the respected authority in this field - Delaware' Supreme Court is based on dualism of fiduciary duties, but not in the traditional meaning. The duty of loyalty includes according to the opinion of the judges not only conflicts of interests and self-dealing situations, but breach of good faith as well. On the other hand the traditional point of view was settled on two fiduciary duties - loyalty and care as well. Duty of loyalty was connected with conflicts of interest situations between principal and agent, when the personal financial interest of the agent was present. Duty of loyalty protected the legal position of the principal when agent managed entrusted property. The duty of care was connected with the interest of the principal and due performance of the agent with the...

O estudo da responsabilidade civil dos administradores de companhias abertas na doutrina nacional trata usualmente dos deveres fiduciários, do ato regular de gestão e da teoria ultra vires, da culpa ou dolo do administrador, das ações ut universi e ut singuli e da solidariedade entre a responsabilidade do administrador e a da companhia. Poucos abordam as causas extintivas dessa responsabilidade, e raro são os que tratam da hipótese de exclusão de responsabilidade do artigo 159, § 6º, da Lei nº 6.404/76. Como a disciplina dos deveres fiduciários prevista na lei societária brasileira tem forte influência do Direito norte-americano, buscou-se na legislação, doutrina e jurisprudência daquele país os fundamentos necessários à melhor interpretação e aplicação da regra de exclusão e, em especial, na business judgment rule, doutrina que protege os administradores contra responsabilização por prejuízos à companhia decorrentes de decisões por eles adotadas, proteção esta também conferida pela hipótese do artigo 159, § 6º, da Lei nº 6.404/76, ao administrador leal e de boa-fé. / The study of corporate directors civil liability in national doctrine usually deals with fiduciaries duties, regular management act and the ultra vires theory, directors malpractice or deceit, ut universi and ut singuli actions and solidarity between directors and companies responsibility. Few address the extinctive causes of such liability, and rare are those who address the liability exclusion hypothesis of the Article 159, § 6º, of the Law n. 6.404/76. Whereas that the fiduciary duties discipline provided for in Brazilian corporate law has strong influence of American law, was sought in the legislation, doctrine and jurisprudence of that country the fundamentals for a better understanding and application of the exclusion rule and, particularly, in the business judgment rule, a doctrine that protects directors against liability for damages to the company arising from their acts, protection also afforded by the Article 159, § 6º, of the Law n. 6.404/76, to the loyal and good faith director.

Czech regulation of limited companies from the point of view of the 'law and economics' school Abstract Law and economics has a potential to provide us with an uncommon and to the Czech jurisdiction often neglected point of view on laws. The aim of this paper is to apply economic theories on directors' liability for breach of fiduciary duties and to consider its consequences on the economic efficiency of companies. The critical question is whether not having such liability could provoke an increase of wealth of all stakeholders. The paper also aims to come up with instruments capable of minimizing the lost caused to companies by mandatory rules regarding director's liability. At the end of the thesis, the Czech laws regarding the director's liability for breach of fiduciary duties are analyzed in the point of view of economic analysis. The analysis is followed by proposition of instruments that could make companies operating in Czech legal environment more effective. Directors' liability, which can result in an aversion to make risky decisions, can cause significant losses to companies (so called agency costs). For that reason, the possibility to determine the scope of director's liability given to shareholders can have, in some cases, positive effect on the company's efficiency. The paper concludes that...

O estudo da responsabilidade civil dos administradores de companhias abertas na doutrina nacional trata usualmente dos deveres fiduciários, do ato regular de gestão e da teoria ultra vires, da culpa ou dolo do administrador, das ações ut universi e ut singuli e da solidariedade entre a responsabilidade do administrador e a da companhia. Poucos abordam as causas extintivas dessa responsabilidade, e raro são os que tratam da hipótese de exclusão de responsabilidade do artigo 159, § 6º, da Lei nº 6.404/76. Como a disciplina dos deveres fiduciários prevista na lei societária brasileira tem forte influência do Direito norte-americano, buscou-se na legislação, doutrina e jurisprudência daquele país os fundamentos necessários à melhor interpretação e aplicação da regra de exclusão e, em especial, na business judgment rule, doutrina que protege os administradores contra responsabilização por prejuízos à companhia decorrentes de decisões por eles adotadas, proteção esta também conferida pela hipótese do artigo 159, § 6º, da Lei nº 6.404/76, ao administrador leal e de boa-fé. / The study of corporate directors civil liability in national doctrine usually deals with fiduciaries duties, regular management act and the ultra vires theory, directors malpractice or deceit, ut universi and ut singuli actions and solidarity between directors and companies responsibility. Few address the extinctive causes of such liability, and rare are those who address the liability exclusion hypothesis of the Article 159, § 6º, of the Law n. 6.404/76. Whereas that the fiduciary duties discipline provided for in Brazilian corporate law has strong influence of American law, was sought in the legislation, doctrine and jurisprudence of that country the fundamentals for a better understanding and application of the exclusion rule and, particularly, in the business judgment rule, a doctrine that protects directors against liability for damages to the company arising from their acts, protection also afforded by the Article 159, § 6º, of the Law n. 6.404/76, to the loyal and good faith director.