Abstracts

Citation

(2006), "Abstracts", Managerial Law, Vol. 48 No. 6. https://doi.org/10.1108/ml.2006.01048fad.001

Abstracts

A review of selected articles from over 400 of the world's top management publications<!?tpb=5pt>

Look before you LLP (limited liability partnerships)

N. ThompsellAccountancy, January 2006, Vol. 137 No. 1349Start Page: 110No. of Pages: 2

Purpose – To discuss the possible business uses of limited liability partnerships (LLPs).Design/methodology/approach – Summarizes the UK advantages of LLPs over’partnerships and limited companies but points out that they cannot be used for non-profit-making activities and that their tax advantages are restricted for investment businesses. Warns that an LLP can easily fall into the very wide definition of a collective investment scheme and thus open the path to restrictions and possible criminal proceedings. Summarizes the suitable uses of LLPs and gives an example to illustrate the tax advantages.Originality/value – Looks at the pros and cons of LLPs.Keywords Law, Liability, Partnering, Taxation, United KingdomISSN: 0001-4664Reference: 35AE027

Contextualizing shareholders' disputes – a way to reconceptualize minority shareholder remedies

I.H. Chiu, E. Overby, A. Bharadwaj and V. SambamurthyThe Journal of Business Law, May 2006Start Page: 312No. of Pages: 27

Purpose – To argue that shareholder disputes should not automatically be resolved by reliance on s.459 of the Companies Act 1985, a minority shareholder protection regime which is frequently relied on when a dispute between shareholders arises (under the current legal framework, there is no specific process for shareholder dispute resolution). Referring to the White Paper, "Modernizing Company Law" (2002), which emphasizes the use of arbitration or alternative dispute resolution in shareholder disputes, examines the extent to which contractual enforcement of shareholders' agreements may be appropriate as a way of resolving shareholder disputes.Design/methodology/approach – Discusses the role of contractarian analysis in company and considers whether shareholders' arbitration agreements represent a plausible contractual means of shareholder dispute resolution, taking into account the limitations of arbitration and its relationship with s.459. Suggests that the dual nature of company law is able to provide guidance on when an issue underlying a shareholder dispute may be more aptly resolved by contract and when it should be tried under the minority protection regime; describes, therefore, how the courts might contextualize the dispute in order to ascertain whether the dispute relates to the enabling/facilitative aspect of company law or to the mandatory/prohibitory aspects of company law. Explores the further issue of whether contracting out of minority shareholder protection would be feasible, and applies this analysis to s.122(g) of the Insolvency Act (which allows a minority shareholder to bring a winding-up petition to the court if it is "just and equitable" to do so) and the minority derivative action.Originality/value – Investigates an issue, "excessive use" of minority shareholder protection in resolving shareholder disputes, which is, it is contended, in urgent need of reconceptualization.Keywords Agile production, Alternative dispute resolution, Arbitration, Communications technology, Company law, Contract law, Dispute resolutions, Laws and legislation, Manufacturing, Organizations, ShareholdersISSN: 0021-9460Reference: 35AL985

An analysis of the Transfer of Undertakings (Protection of Employment) Regulations 2006

J. McMullenIndustrial Law Journal, June 2006, Vol. 35 No. 2Start Page: 113No. of Pages: 27

Purpose – Assesses the impact of the UK's new Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 which replace the TUPE Regulations 1981.Design/methodology/approach – Sets out the aims of the new regulations: to increase the coverage of TUPE to include service provision changes, such as contracting out and outsourcing; to clarify the Regulations concerning transfer-related dismissals and the circumstances in which employers can change terms and conditions; to ensure that old employers notify new employers of the identity of employees and the rights and liabilities that pass on at transfer; and to give greater flexibility for the application of the regulations in cases of insolvency. Assesses how well the Regulations achieve these aims, discussing relevant case law. Identifies areas which are still not tackled by the regulations.Findings – Argues that Regulations achieve some of the aims set for them but that some areas that need legislation have been ignored. In particular, points out that the regulations do not clarify the issue of compromise agreements, and that they do not place a cap on week's pay for the purpose of the 13 week maximum award which would be made if an employer fails to inform or consult under the regulations. Also highlights the failure to clarify if the regulations apply to cross-border transfer of undertakings.Originality/value – Explains the scope of the new TUPE Regulations.Keywords Contracting out, Employment contracts, Employment law, Mergers and acquisitions, Outsourcing, United Kingdom,ISSN: 0305-9332Reference: 35AT588

State and legal trends to watch this year (US employment legislation)

HR Focus, May 2006, Vol. 83 No. 5Start Page: 3No. of Pages: 2

Purpose – Reviews the pieces of US federal and state employment legislation that are under consideration at present. Considers if they are likely to reach the statute book and the likely impact.Design/methodology/approach – Quotes from a speech by Michael Aiken, Director of Government Affairs at the Society for Human Resource Management. Among the areas of legislation mentioned are immigration, electronic verification systems, religious freedom, pensions, and minimum wage increases.Findings – Points out that the US mid-term elections may affect the passage of the bills discussed.Originality/value – Presents a round-up of potential US legislation that may affect human resource management.Keywords Employment law, Human resource management, USAISSN: 1059-6038Reference: 35AP022

Legal aid (UK employment law)

J. SimmsHuman Resources, April 2006Start Page: 34No. of Pages: 3

Purpose – Explains five pieces of UK employment law that are about to take effect, which concern pensions simplification, new TUPE regulations, age discrimination, racial equality, and work and families.Design/methodology/approach – Outlines the main provisions in the legislation and discusses its likely impact on UK businesses.Findings – Argues that the new legislation should have a positive effect on organizations. Signals the pensions legislation and the age discrimination rules as potentially being the most challenging for organizations.Originality/value – Provides brief summaries of UK employment legislation that is coming into force this year and gives some advice on their implications for employers.Keywords Age discrimination, Employment law, Family life, Mergers and acquisitions, Pensions, Race discrimination, United KingdomISSN: 0964-8380Reference: 35AL879

White-collar crime: who does time?

J. SasseenBusiness Week, 6 February 2006Start Page: 60No. of Pages: 2

Purpose – To examine whether corporate crime pays.Design/methodology/approach – Highlights the challenges facing prosecutors of making charges against corporate senior executives stick; presents examples of those that have paid for their misdemeanours, those that have escaped and those that were not even charged. Outlines some of the factors that may impact on the results of the charges brought against Lay and Skilling (ex-Enron senior executives); provides examples of how white-collar crime is resulting in harsher punishment; refers to the evidence that prosecutors must have to provide to make a conviction stick and looks at the chances that a jury will convict; identifies the 34 defendants that the Enron Task Force have charged so far and describes the charges against them.Originality/value – Explores the US legal system's attitude towards white collar crime.Keywords Crimes, Criminal justice, Enron, Legal action, White collar workersISSN: 0007-7135Reference: 35AJ986

Freedom of Information Act (FoI): a tough act to follow

N. CanningsManaging Information, June 2006, Vol. 13 No. 5Start Page: 4No. of Pages: 2

Purpose – To comment on the current situation in the UK now that the Freedom of Information Act (FoIA) has become well established.Design/methodology/approach – The value to the UK public of the general provisions of the FoIA is discussed in terms of the fact that there is now little to find to argue against the Act and that the main difficulty lies with the problems associated with searches of enterprise information systems to address FoIA requests.Findings – The most challenging task is the searching, discovery, and retrieval of relevant information from e-mails, where e-mail messages tend to have unstructured data that is often held in more than one location. Explains that one approach to this problem may be the use of an e-mail information management suite that provides secure archiving and powerful message searching facilities. Concludes that the organizations should capture information in a more usable fashion and create a company knowledge bank from this information. Notes that dynamic data discovery is another solution to the problem whereby the system "learns" the content of e-mail, stripping out useful data such as names, e-mails, date, and recurrent themes, and subjects.Originality/value – Reveals how increasing the effectiveness of searching enterprise information systems can provide the organization with a greater ability to see what is going on in real time.Keywords Freedom of information, Government departments, Information management, Law, United KingdomISSN: 1352-0229Reference: 35AR714

Online brands and trademark conflicts: a Hegelian perspective

R.A. SpinelloBusiness Ethics Quarterly, July 2006, Vol. 16 No. 3Start Page: 343No. of Pages: 25

Purpose – To consider the question of whether companies have a true "property right" in a trademark and, if so, whether that right should extend to domain names. Explores, further, the issue of what lengths a company can go to in order to protect their rights without suppressing the free speech rights of critics of the company.Design/methodology/approach – Discusses the legal protection afforded to trademarks by the Federal Trademark Act 1946, and discusses normative justifications for property rights in trademarks drawing on Locke's labour-desserts theory and Hegel's theory of property. Argues that, in accordance with Hegel's notion that "property is the embodiment of personality", as trademarks have come to reflect the personalities of the corporations they represent, a trademark should be classified as personal property that cannot be misappropriated. Examines the implications of the Uniform Dispute Resolution Procedure (1999) which provides ex post remedies for cybersquatting, and the Anti-Cybersquatting Consumer Protection Act (1999) which, it is claimed, makes it easier for trademark owners to go after domain names that are similar to their trademarks. Analyses two cases that typify disputes involving domain names and trademarks: People for the Ethical Treatment of Animals (PETA) v. Doughney 2001 and the Burlington Coat Factory case. Asserts that the PETA decision was correct (the domain name, peta.org. was too similar to PETA's mark) but that the Burlington Coats judgment was not (the critical and derisive intent of the domain names, burlington-murderfactory.com and burlington-blood-factory.com, should be readily apparent to any reasonable consumer).Originality/value – Proposes, and offers a comprehensive and articulate argument in favour of, the following doctrine: "a trademark owner should be able to exercise reasonable control over the variations of its trademark incorporated into domain names; non-owners should be allowed to use domain names with critical appendages or other differentiating characteristics so long as there is no confusion with the true mark and its owner".Keywords Ethics, Internet, Property rights, TrademarksISSN: 1052-150XReference: 35AU010

Shifting sands: employment law and your business

E. PoynerNZ Business, July 2006, Vol. 20 No. 6Start Page: 16No. of Pages: 2

Purpose – To provide advice to business owners on the advantages of a written employment contract and how to minimize the risk of a successful increased workload claim.Design/methodology/approach – Notes that in New Zealand, employees are entitled to a written employment agreement following the Employment Relations Act 2000, irrespective of the size of the business. Briefly discusses a case in which failure to identify their company as the employer left two brothers who ran a roofing business personally liable for the unpaid wages, holiday pay, and legal costs of an employee who left suddenly without giving notice. Outlines another case dealing with constructive dismissal, in which an employee claimed that his resignation was brought about by an increased workload. Describes the action taken by the company to help the employee to manage his workload prior to his resignation and notes the advice and support offered when the employee suffered a sudden bereavement. States that the Employment Relations Authority subsequently held that the company had acted promptly and constructively and that individual had ignored some of the advice offered and had resigned of their own free will.Practical implications – Recommends that employers respond promptly when an’employee raises concerns about an increased workload and cites referral to an employee assistance programme (EAP) and evidence of support provided by the employer as good examples of a constructive response.Originality/value – Highlights the importance of access to employment law expertise for small business owners.Keywords Employee assistance programmes, Employment contracts, Employment law, Legal principlesISSN: 0113-4957Reference: 35AR952

Articles 9 and 11 of the Takeover Directive (2004/25) and the market for corporate control

B. ClarkeThe Journal of Business Law, June 2006Start Page: 355No. of Pages: 20

Purpose – To assess the effectiveness of the Takeover Directive 2004/05 which aims to regulate anti-take-over measures in order to ensure that directors of a company cannot unilaterally frustrate take-over bids to further their own interests over those of the shareholders in the company, and to ensure that shareholder safeguards are equivalent throughout the European Union.Design/methodology/approach – Explains the different agency problems that arise’where shareholdings are dispersed (ensuring that management acts in the interests of shareholders) and where large block-holders exist (ensuring that block-holders do not act contrary to the interests of the remaining shareholders), and how’these agency problems become particularly salient when a take-over is made or’imminent. Referring to a report issued by a High Level Group of Company Law’Experts under the chairmanship of Professor Jaap Winter (the "Winter report"),’considers whether (as argued in the report) the availability of a mechanism that facilitates take-over bids is beneficial because, inter alia, it encourages directors to’adopt an optimal governance structure, i.e. "the market for corporate control", a’construct that underlies the main thrust of the Winter report and, indeed, of the’Directive itself (takeovers themselves may be viewed as a solution to the agency’problem). Explores how the Directive intends to deal with frustrating actions and with corporate governance arrangements that might otherwise impede take-overs’in both types of company and describes how, in the absence of member state’agreement to the original draft Directive, optional arrangements for the application of the "contentious" Article 9 (which would prohibit all defensive actions during a bid without shareholder approval) were introduced. Concludes that the optionalization of Article 9 raises serious doubts about the Directive's ability to achieve its objective of co-ordinating national measures designed to protect offeree shareholders.Originality/value – Offers an overview of legislation which could have significant implications for take-over activity in the EU; a difficult read, however.Keywords Control, Corporate governance, European directives, Shareholders, Take-oversISSN: 0021-9460Reference: 35AP320

Pyrrhic victory? The unintended consequence of the Pensions Act 2004

A. Byrne, D. Harrison, B. Rhodes and D. BlakeEconomic Affairs, June 2006, Vol. 26 No. 2Start Page: 9No. of Pages: 8

Purpose – To identify and discuss some unintended consequences of the UK's 2004 Pensions Act.Design/methodology/approach – Explains that this far-reaching legislation was intended to improve pension scheme governance and the security of members' accrued benefits. Outlines the key provisions of the Act, covering the Pensions Regulator; statutory funding requirements; contribution notices and clearance; and the establishment of the Pension Protection Fund. Focuses on issues around scheme funding and the relationship between trustees and sponsoring employers. Presents findings from interviews with over 70 professionals involved in occupational pension provision, providing many quotations illustrating the issues raised by them. Discusses pension scheme funding and conflicts of interest; regulatory clearance procedures; the functioning of the Pension Protection Fund; and the likelihood that the changes introduced by the Act will lead to the closure of defined benefit pension schemes.Findings – States that people responsible for running pension schemes are very concerned over the implications of the Pension Act 2004. Finds that many feel that it imposes "an unacceptable burden" on companies providing DB schemes, prompting them to withdraw from such schemes. Adds that employers view the Act as removing much of the flexibility that is needed to design appropriate benefits that can be adjusted to reflect changing economic circumstances.Originality/value – A wide-ranging review of the issues raised by recent pensions legislation in the UK.Keywords Legislation, Pension funds, Personal finance, RetirementISSN: 0265-0665Reference: 35AR422

The concept of a company director: time for a new expanded and unified statutory concept?

I. Murphy and J. de LacyThe Journal of Business Law, May 2006Start Page: 267No. of Pages: 33

Purpose – Pointing out that the identification of a company director is no simple matter since several "varieties" of director exist under both statutory and common law definitions, asks whether it is now time for the law to adopt a more simplified and rational approach in the form of an amended and unified statutory definition so that measures aimed at directors catches them all, whatever the variety.Design/methodology/approach – Argues that, since directors play a crucial role in the life of a company, it is vital that those directors and the scope of their role within the company can be identified. Offers an overview of the legal concept of "director", describing three main types of company director to be found in English law, "de jure", "de factor" and "shadow", and three further categories, "de jure director operating in a de facto capacity", nominee directors, and alternative directors. Emphasizes that, whatever label is attached to the person who holds the position, director status is important to the issue of establishing the accountability, of individuals in relation to their conduct in running the company; looks, therefore, at two main forms of legal accountability, statutory accountability and common law accountability. Proposes that the Companies Act adopt a unified concept of director such that the current definition is extended to catch the presently distinct category of "shadow director".Originality/value – Identifies an issue, the potential for de facto and shadow directors to escape statutory measures aimed at directors, that could be resolved by the simple expedient of incorporating a unitary definition into the Company Law Reform Bill.Keywords Directors, Internet, Law reform, Laws and legislation, Management accountability, StandardsISSN: 0021-9460Reference: 35AL983

Radical workplace changes: what you need to know

J. FredericksInformation Age, April/May 2006Start Page: 10No. of Pages: 2

Purpose – To examine some of the changes that have taken place in Australian industrial relations legislation with the introduction of the federal government's WorkChoices legislation that came into effect on 27 March 2006.Design/methodology/approach – The changes in the Australian industrial relations law that are involved are discussed in terms of the main elements, including: unfair dismissal; awards; agreement making; the minimum wage; and industrial action.Findings – It is concluded that only time will reveal what effect the WorkChoices legislation will have on the Australian labour market. Concludes that, while the present economic climate is likely to ensure that skilled professionals in a tight labour market will probably not feel much effect, an economic downturn could change this situation very quickly.Originality/value – Provides some very brief but informative notes on aspects of the new Australian employment legislation that could provide a valuable comparison with legislation in other countries.Keywords Australia, Employment, Employment lawISSN: 1039-5008Reference: 35AL459

Patent protection and foreign direct investment

B. SeyoumThunderbird International Business Review, May/June 2006, Vol. 48 No. 3Start Page: 389No. of Pages: 16

Purpose – To examine the importance of countries' patent protection in the decisions of companies to invest there in an era of increasing awareness of the value of intellectual capital.Design/methodology/approach – Explores previous literature on the link between patent protection and foreign direct investment and analyses data from 63 randomly chosen countries in different regions to scrutinize the influence of strong protection on annual investment inflows; also considers the effect of other variable such as market size, levels of corruption, and trade orientation.Findings – Discovers overall support for the strong positive influence of patent protection on FDI decisions.Research limitations/implications – Comments that the patent data presented are based on the regulatory regimes in place rather than actual enforcement of protection which may not reveal the true strength of patent protection in practice.Originality/value – Clarifies the results of previous research in this area and considers how firms deal with countries where patent protection is inadequate.Keywords Intellectual property law, Inward investment, PatentsISSN: 1096-4762Reference: 35AR159