The continuing evolution of shareholder governance

Cambridge Law Journal

Volumn 65, Issue 1, 2006, Pages 92-127

  Nolan, R C ^a  

^a ST JOHN S COLLEGE   (United Kingdom)

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EID: 85010143378     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197306007057     Document Type: Article

References (272)

1. The Company Law Review produced a useful set of documents about the law regulating corporate decision-making, but it did not examine the principles onto which such regulation is grafted, nor the practice built on them. The Review only obliquely acknowledged the principles in Developing the Framework (London 2000), at §4.19.
2. The Government's approach followed the Review's: Modernising Company Law (Cm. 5553 (2002)), at §2.8.
3. See D. Impey et al., The Modern Law of Meetings (Bristol 2005)
4. I. Shearman, Shackleton on the Law and Practice of Meetings (London 2006)
5. A. Hamer and A. Robertson, Running Company Meetings (Hemel Hempstead 1997).
6. Academic articles published in the UK have tended to examine aspects of positive law concerned with decision-making by shareholders, rather than consensual corporate structures: see, e.g., R. Grantham, “The Unanimous Consent Rule in Company Law” [1993] C.L.J. 245
7. most recently, Watts, “Informal Unanimous Assent of Beneficial Shareholders” (2006) 122 L.Q.R. 15.
8. As regards practitioner interest, see Company Law Review, Company General Meetings and Shareholder Communication (London 1999), §14.
9. As regards academic interest, mostly abroad, see, e.g., S. Bottomley, “From Contractualism to Constitutionalism: A Framework for Corporate Governance”’ (1997) 19 Sydney Law Review 277
10. The Role of Shareholders' Meetings in Improving Corporate Governance (Canberra 2003)
11. R. Simmonds, “Why Must we Meet? Thinking about why Shareholders' Meetings are Required” (2001) 19 Company and Securities Law Journal 506
12. F. Bonollo, “Electronic Meetings” (2002) 14 Australian Journal of Corporate Law 95
13. E. Boros, “Corporate Governance in Cyberspace: Who Stands to Gain What From the Virtual Meeting?” [2003] Journal of Corporate Law Studies 149
14. “Virtual Shareholder Meetings: Who Decides How Companies Make Decisions?” (2004) 28 Melbourne University Law Review 265.
15. See in particular The Strategic Framework (London 1999), §5.7.18
16. Company General Meetings and Shareholder Communication (note 3 above), §14.
17. Company Law Review, Final Report (London 2001), §§1.52 and 1.56–1.57, chapters 3 and 7;
18. P. Myners, Institutional Investment in the UK: A Review (London 2001)
19. Combined Code on Corporate Governance (London 2003), Principle E3.
20. See P. Myners, Review of the Impediments to Voting UK Shares: Report by Paul Myners to the Shareholder Voting Working Group (London 2004), particularly at §1.2.
21. See Company Law Reform (Cm. 6456 (2005)), §§3, 3.1, 3.2 and the Company Law Reform Bill clauses 136–137, 258–334. Note also the developments at European Union level: see
22. See, generally, R.C. Nolan, “Indirect Investors: A Greater Say in the Company?” [2003] Journal of Corporate Law Studies 73
23. G.P. Stapledon and J.J. Bates, “Reducing the Costs of Proxy Voting”, chapter 24 in J. McCahery et al., Corporate Governance Regimes (Oxford 2002)
24. P. Myners, “Review of the Impediments to Voting UK Shares” (note 6 above).
25. The DTI has now brought forward proposals in this regard: see Company Law Reform (note 7 above), §3.2 and the Company Law Reform Bill clauses 136–137. The EU is currently looking at the issues in the context of cross-border voting as part of its review of shareholder rights: see note 7 above.
26. See also E. Ferran's critical summary of the debate about stakeholders in companies: Company Law and Corporate Finance (Oxford 1999), chapter 4.
27. Other recent contributions to the debate include R. Grantham, “The Doctrinal Basis of the Right of Company Shareholders” [1998] C.L.J. 554
28. P. Ireland, “Company Law and the Myth of Shareholder Ownership” (1999) 62 M.L.R. 32
29. J. Parkinson et al., The Political Economy of the Company (Oxford 2001), chapter 6
30. A. Gamble and G. Kelly, “Shareholder Value and the Stakeholder Debate in the UK” (2001) 9 Corporate Governance International Review 110
31. S. Worthington, “Shares and Shareholders: Property, Power and Entitlement” (2001) 22 Company Lawyer 258 and 307
32. Wedderburn, “Employees, Partnership and Company Law” (2002) 31 Industrial Law Journal 99, and Lynch Fannon, Working Within Two Kinds of Capitalism (Oxford 2003).
33. Professor Farrar has also published a useful work for comparative purposes, Corporate Governance in Australia and New Zealand (Oxford 2001).
34. The question of altering the model of the company was squarely posed for the Company Law Review: Modern Company Law for a Competitive Economy (London 1998), § 3.7.
35. The Review gave an equally clear answer to the question in favor of retaining the present, shareholder-focussed model: see The Strategic Framework (note 4 above), chapter 5.1
36. Developing the Framework (note 1 above), chapter 3
37. Completing the Structure (London 2000), chapter 3.5.
38. The UK Government adopted the conclusions of the Reviews: Modernising Company Law (note 1 above), §3.3.
39. The impact on meetings, and other collective action by shareholders, of the general policy debates about the role of shareholders in a company are well considered by Justice Simmonds: see “Why Must we Meet?” (note 3 above), pp. 508–514.
40. There is a very great deal of detailed learning on-and glossing of-section 14 and its various predecessor provisions. See generally Buckley on the Companies Acts (15th ed. by Dame Mary Arden et al., London 2000), at [14.5]-[14.10]
41. P.L. Davies, Gower and Davies' Principles of Modern Company Law (London 2003), pp. 58–65. None of that unsatisfactory detail, or glossing, is relevant for present purposes. What is relevant is the basic principle of statute giving legal effect to consensual arrangements.
42. Companies Act 1985, s. 9.
43. A special resolution, required by section 9, is now defined in section 378 of the Act as carried by at least 75% of the votes cast. As to the requirement of good faith, see Allen v. Gold Reef of West Africa [1900] 1 Ch. 656
44. generally, Buckley on the Companies Acts (Gold Reef of West Africa. note 16), at [9.24]-[9.32].
45. As regards financial regulation, see The Report of the Committee to Review the Functioning of Financial Institutions (Cmnd. 7937 (1980))
46. Rider, Abrams and Ashe, Guide to Financial Services Regulation (Bicester 1997) chapter 1
47. Ferran, (note 12 above), chapter 17. As regards the regulation of business activity generally, its current extent and ubiquity are immediately apparent from the Department of Trade and Industry's website at . Its continued growth is reported by the Institute of Chartered Accountants in England and Wales, “Red tape costing UK business an extra £1 billion a year”, available at
48. Section 52 had no precursor in the Joint Stock Companies Act 1856.
49. Elements of these sections drew on Joint Stock Companies Act 1856, ss. 35–36.
50. This section followed Joint Stock Companies Act 1856, s. 34.
51. This section followed Joint Stock Companies Act 1856, s. 40.
52. Hereafter, “Table A (1862)”.
53. These regulations drew largely on regs. 22–43 of Table B in the Schedule to the Joint Stock Companies Act 1856.
54. They broadly presage what are now regs. 36–63 of Table A (1985), though they are neither so full nor so sophisticated as the modern form of articles.
55. Section 16 drew largely on Joint Stock Companies Act 1856, s. 10.
56. (1882) 23 Ch.D. 14, 35–36.
57. See, recently, Halifax plc v. Halifax Repossessions Ltd. [2004] EWCA Civ 331
58. [2004] 2 B.C.L.C. 455, at [13]
59. per Arden L.J., and also Welton v. Saffery [1897] A.C. 299, 305, per Lord Halsbury L.C.
60. Harben v. Phillips (1882) 23 Ch.D. 14, 32, per Cotton L.J., and 35–36
61. per Bowen L.J. In so far as Re English, Scottish & Australian Chartered Bank [1893] 3 Ch. 385, 395
62. Re English, Scottish & Australian Bank [1893] 3 Ch. 385.
63. See, e.g., Table A (1985), reg. 62.
64. Companies Act 1985, s. 372(2)(a).
65. Companies Act 1985, s. 372(1) (the rights of a proxy for a member in a private, but not a public, company include the right to speak at the meeting)
66. s. 372(2)(b) (the statutory right is to appoint one proxy only)
67. s. 372(2)(c) (the statutory right of a proxy to vote exists only on a poll, not a show of hands)
68. s. 372(3) (the notice of a company general meeting must state the right to appoint a proxy or (where allowed by the articles) several proxies)
69. s. 372(5) (lodgment of proxies may not be more than 48 hours in advance of the meeting in question or its adjournment)
70. s. 372(6) (proxy solicitations must be sent to all or none of the members, not just some of them).
71. See, e.g., Table A (1985), regs. 59–62.
72. See, e.g., BP plc, arts. 81, 86.
73. See, above n. 35 and also examples such as BP plc, arts. 83–84.
74. See, e.g., Table A (1985), reg. 63
75. BP plc, art. 85.
76. See, e.g., Table A (1985), reg. 46
77. BP plc, arts. 81, 85.
78. Labouchere v. Earl of Wharncliffe (1879) 13 Ch.D. 346, 352.
79. The corresponding Australian provisions, Corporations Act 2001 (Cth.), s. 140 and its various precursors, have the same effect. So, in Australia, notice of a general meeting given to a company's members by fax was assumed to be good, so long as the company's articles allowed for such notice, even before the addition to the 2001 Act of section 243J(3), which explicitly provides for such notice: Jenashare Pty. Ltd. v. Lemrib Pty. Ltd. (1993) 11 A.C.S.R. 345 (Supreme Court of New South Wales).
80. See, for example, Table A (1985), regs. 37–39 (convening of meetings; form of notice; saving of meetings where the company accidentally fails to give notice to a person entitled to receive it).
81. See also “Growing Statutory Regulation: 1900–1985,” below. As might be imagined, much more sophisticated provision is often made by larger companies: see below, “The Modern Evolution of Shareholder Governance”.
82. McMillan v. Le Roi Mining Company Ltd. [1906] 1 Ch. 331 adverts to this possibility, though the High Court in fact struck down a postal ballot held by the company, because it could not hold postal ballots consistently with its articles. However, the implication is that had the articles been different, so too might have been the result.
83. Re English, Scottish & Australian Bank [1893] 3 Ch. 385 illustrates this possibility, though the case itself concerned a statutory meeting to approve a scheme of arrangement.
84. See the treatment of “general principles” of meetings by the works cited in note 2 above.
85. Smyth v. Darley (1849) 2 H.L. Cas. 789, 9 E.R. 1293
86. Musselwhite v. C.H. Musselwhite & Son Ltd. [1962] Ch. 964
87. Royal Mutual Benefit B.S. v. Sharman [1963] 1 W.L.R. 581.
88. See, e.g., Table A (1985), reg. 39. Such an article is vitally important in practice, because English statute law contains no provision mitigating the common law consequences of failure to give due notice.
89. Contrast, e.g., Corporations Act 2001 (Cth.), s. 1322
90. Companies Act (Singapore), s. 392.
91. See, e.g., Byng v. London Life [1990] Ch. 170.
92. Kaye v. Croydon Tramways [1898] 1 Ch. 358.
93. See again Byng v. London Life [1990] Ch. 170.
94. W.A. Greene et al., The Report of the Company Law Amendment Committee (London 1926), §§34–37, and Part II, pp. 54–55.
95. See, presently, Companies Act 1985, s. 371.
96. See, presently, Companies Act 1985, s. 375.
97. See, presently, Companies Act 1985, s. 378.
98. This right is now found in Companies Act 1985, s. 383.
99. The position at common law was that a resolution passed at an adjourned meeting was treated in law as passed at the original meeting: see, e.g., Neuschild v. British Equatorial Oil Co. [1925] Ch. 346.
100. See now Companies Act 1985, s. 381.
101. Sir Lionel Cohen et al., The Report of the Committee on Company Law Amendment (Cmd. 6659 (1945)), §§124–129, 132–136.
102. See, presently, Companies Act 1985, ss. 376 and 377.
103. See, presently, Companies Act 1985, s. 373. According to the common law of public meetings, any qualified person may demand a poll, but this right was commonly regulated, before the commencement of the Companies Act 1948, by companies' own articles of association.
104. See, generally, Buckley on the Companies Acts (note 16 above), at [373.4].
105. See, presently, Companies Act 1985, s. 372.
106. See, presently, Companies Act 1985, s. 374.
107. See Buckley on the Companies Acts (note 16 above), Derivation Table at [0.33], concerning what are now Companies Act 1985, sections 370, 380 and 382.
108. See generally C. Mercer, “Sections 113–114-Written Resolutions: What about Table A?” (1991) 12 Company Lawyer 220
109. but compare H.W. Higginson, “Written Resolutions of Private Companies” (1993) 109 L.Q.R. 16.
110. Companies (Single Member Private Limited Companies) Regulations 1992 (S.I. 1992/1699), r. 2 and Schedule paras. 5 and 6.
111. See Department of Trade and Industry, Electronic Communication: Change to the Companies Act 1985 (London 1999).
112. See V. Edgtton, “Appointment of Proxies by Electronic Communication: Do Companies Have to Wait for Enabling Legislation?” (2000) 21 Company Lawyer 294.
113. Schedule to the Interpretation Act 1979, given force by section 5 of that Act.
114. Listing Rules as at 31st December 1999.
115. Schedule to the Interpretation Act., rr. 14.17–14.19
116. though compare Schedule to the Interpretation Act., Appendix 1 to Chapter 13, para. 18, which envisaged notices by advertisement.
117. Schedule to the Interpretation Act., rr. 14.3–14.6; 14.14; 14.16.
118. Schedule to the Interpretation Act., r. 9.16, implementing Council Directive 79/279/EEC, Schedule C, para. 2(a).
119. Department of Trade and Industry, note 76 above.
120. Edgtton, note 77 above.
121. Listing Rules (as at 31st December 1999), rr. 9.26; 13.1(f); 13.2; 13.28; 13.29; Appendix to Chapter 13, paragraph 12.
122. Listing Rules, r. 17.
123. Listing Rules, r. 18.
124. Listing Rules, rr. 19, 20.
125. Listing Rules, r. 21.
126. Companies (Acquisition of Own Shares) (Treasury Shares) Regulations 2003 (S.I. 2003/1116).
127. Listing Rules, Schedule paras. 19–25, amending Companies Act 1985, sections 368 (meetings on members' requisition), 369 (length of notice for meetings), 370 (general default rules as to meetings), 373 (rights to a poll), 376 (resolutions proposed by members), 378 (definitions of extraordinary and special resolutions) and 380 (registration of certain resolutions).
128. Business requiring a special resolution, which might commonly be encountered at a company's general meeting, includes various alterations to the company's memorandum (Companies Act 1985, sections 4–6, 17, 28, 43, 53), alterations to its articles (Listing Rules, s. 9)
129. disapplication of preemption rights over unissued capital (Listing Rules, sections 89, 95)
130. reduction of capital (Listing Rules, s. 135)
131. authorisation to buy-back shares off-market, or under a contingent purchase contract (Listing Rules, sections 164, 165).
132. For example, the alteration of class rights under Companies Act 1985, s. 125
133. voluntary winding up under Insolvency Act 1986, s. 84(1)(c).
134. See Shaw v. Tati Concessions Ltd. [1913] 1 Ch. 292
135. Spiller v. Mayo (Rhodesia) Development Co. (1908) Ltd.
136. [1926] W.N. 78
137. Holmes v. Keyes [1959] Ch. 199.
138. The High Court has held that the concept of voting “personally or by proxy”, used in a particular company's articles, necessitated physical presence by either the shareholder in question or his valid proxy: McMillan v. LeRoi Mining Co. Ltd. [1906] 1 Ch. 331.
139. It is difficult to see why the same words in section 378 would be construed any differently. The requirement of voting “personally or by proxy” goes right back to the definition of a special resolution in Companies Act 1862, s. 51 (following Joint Stock Companies Act 1856, s. 34), and to the definition of an extraordinary resolution in section 129 of the 1862 Act.
140. Such consent might be (i) pursuant to the company's articles, such as Table A (1985), reg. 53
141. (ii) in the case of a private company, pursuant to Companies Act 1985, sections 381A-381C and Schedule 15A, or (iii) pursuant to the common law principle of informal unanimous consent (see, e.g., Re Express Engineering Works Ltd. [1920] 1 Ch. 466
142. Re Duomatic Ltd. [1969] 2 Ch. 365
143. Cane v. Jones [1980] 1 W.L.R. 1451
144. Wright v. Atlas Wright (Europe) Ltd. [1999] 2 B.C.L.C. 301
145. Re Torvale Group Ltd. [1999] 2 B.C.L.C. 605
146. Euro Brokers Holdings Ltd. v. Monecor (London) Ltd. [2003] EWCA Civ 105, [2003] 1 B.C.L.C. 506, at [61]-[63]
147. per Leslie Kosmin Q.C., [2003] EWCA Civ 105, [2003] 1 B.C.L.C. 506, at [57]-[63]
148. per Mummery L.J., and EIC Services Ltd. v. Phipps [2003] EWHC 1507 (Ch), [2003] B.C.C. 931, at [121]-[122], per Neuberger J.). See notes 107–110 below, and their accompanying text, as regards limitations on the principle of unanimous informal consent.
149. Companies Act 1862, s. 50.
150. Companies Act 1862, s. 129.
151. See MacConnell v. E. Prill & Co. Ltd. [1916] 2 Ch. 57, 62, per Sargant J.
152. Joint Stock Companies Act 1856, sections 33 (alteration of articles) and 102 (winding up).
153. Companies Act 1985, s. 379A.
154. Companies Act 1985, s. 381A(6).
155. In this regard, note Companies Act 1985, Schedule 15A, para. 1.
156. Companies Act 1862, para. 2.
157. See Re R.W. Peak (Kings Lynn) Ltd. [1998] 1 B.C.L.C. 193. Note also the various statutory provisions which require a decision of “the general meeting” or “the company in general meeting”.
158. See the possibility raised, though not the result reached, in Re Barry Artist Ltd. [1985] 1 W.L.R. 1305.
159. Companies Act 1985, s. 241.
160. Companies Act 1985, sections 252 and 379A (elective resolution procedure).
161. Companies Act 1985, sections 241, 241A.
162. Listing Rules (1966 ed.) r. 1 and Appendix, Section A
163. r. II(a)(iv) and Schedule VII, Part A, paras. F, H and L
164. (1973 ed.) r. 159 and Appendix 34, Schedule VII, Part A, paras. F, H, L
165. (1979 ed.) rr. 1, 6 and Schedule VII, Part A, paras. F, H, L
166. (1984 ed.) Section 2, Chapter 1, r. 2.5 and Section 9, Chapter 1, paras. 6, 8, 12, 14
167. (1993 ed.) rr. 13.8, 13.28, 13.29 and Appendix 1 to Chapter 13, paras. 12, 13, 18, 19, 22; (2000 ed.) rr. 9.26, 9.43, 13.28, 13.29; (2005 ed.) rr. 9.3.6, 9.3.7, 9.3.9.
168. Listing Rules (1966 ed.) Appendix, para. 1
169. (1973 ed.) Appendix 34, para. 2
170. (1979 ed.) Appendix, para. 1
171. (1984 ed.) Section 1, Chapter 1, para. 2
172. (1993 ed.) r. 13.3
173. (2005 ed.) r. 1.2.1.
174. Listing Rules (1993 ed.) rr. 13.1 and 13.3
175. (2000 ed.) r. 13.3 (which followed the language of Amendment 14 of January 2000 to the 1993 ed.).
176. See the Listing Rules (2005 ed.).
177. Listing Rules (2005 ed.) rr. 9.3.6, 9.3.7, 9.3.9.
178. McMillan v. LeRoi Mining Co. Ltd. [1906] 1 Ch. 331. See note 46 above.
179. Scullion v. Family Planning Association of Queensland (1985) 10 A.C.L.R. 249
180. Rivers v. Bondi Junction-Waverley RSL Sub-Branch Ltd. (1986) 5 N.S.W.L.R. 362
181. NRMA v. Parker (1986) 6 N.S.W.L.R. 517.
182. Table A (1985), reg. 38.
183. Amersham plc, art. 50
184. Astrazeneca plc, art. 33
185. Amersham plc, art. 51.5
186. Astrazeneca plc, art. 34.5
187. Carnival plc, art. 107.
188. BP plc, art. 55.
189. BP plc, art. 60(D).
190. See the different techniques adopted by Amersham plc, art. 74
191. Astrazeneca, arts. 43, 55;
192. BHP Billiton plc, arts. 55(4), 55(1)
193. BP plc, arts. 71, 80
194. Carnival plc, arts. 135, 144, 153.
195. See, e.g., Table A (1985), regs. 45, 46(a), 47–51, 58
196. Amersham plc, arts. 55, 57–58, 59(a), 60–64
197. Astrazeneca plc, arts. 38, 40–41, 42(a), 43–47
198. BHP Billiton plc, arts. 48, 50–56
199. BP plc, arts. 64, 66–67, 70(i), 71–74, 80
200. Carnival plc, arts. 110, 114–115, 117–119, 133(a), 135, 137–139, 141, 144.
201. Amersham plc, art. 50
202. Astrazeneca plc, art. 33
203. BP plc, arts. 60–61.
204. Listing Rules (2005 ed.) rr. 13.3.1 and 13.8.9.
205. BHP Billiton plc, arts. 2, 54
206. BP plc, arts. 2, 69.
207. To similar effect are Amersham plc, art. 58
208. Astrazeneca plc, art. 41.
209. Carnival plc, art. 117 envisages amendments to substantive resolutions, but enables the chairman to adjourn consideration of an amended substantive resolution.
210. Amendments to correct clerical or manifest error are commonly permitted: Carnival plc. See also Re Moorgate Mercantile Holdings Ltd. [1980] 1 W.L.R. 227 as regards the amendment of a resolution requiring exact notice (in that case, a special resolution).
211. See, e.g., BHP Billiton plc, arts. 59–62
212. Carnival plc, arts. 124–160.
213. Amersham plc, art. 52.2
214. Astrazeneca plc, art. 35.2
215. BHP Billiton plc, art. 53(2)
216. BP plc, arts. 63, 74–75
217. Carnival plc, art. 110.
218. Hamer and Robertson, Running Company Meetings, (note 2 above), p. 86, paras. 10.2, 10.4.
219. Note also John v. Rees [1969] 2 W.L.R. 1294
220. Barton v. Taylor (1886) 11 App. Cas. 197, 204
221. per Lord Selborne, which concern meetings, but not company general meetings, and also Byng v. London Life [1990] Ch. 170, 187, per Sir Nicolas Browne-Wilkinson V.-C.
222. Amersham plc, art. 70
223. BP plc, art. 79
224. Carnival plc, art. 151.
225. Forfeiture for non-payment of calls does not amount to an unlawful reduction of capital (Trevor v. Whitworth (1887) 12 App. Cas. 409, 417, per Lord Herschell, 429, per Lord Watson and 438, per Lord Macnaughten), and so it can be authorised by a company's articles irrespective of the statutory procedures for the reduction of capital or the redemption or repurchase of shares.
226. Amersham plc, arts. 71–72
227. Astrazeneca plc, arts. 53–54
228. BHP Billiton plc, art. 64
229. BP plc, art. 87
230. Carnival plc, arts. 155–156. See also note 120 above and its accompanying text.
231. Carnival plc.
232. See, e.g., Table A (1985), reg. 54
233. Amersham plc, art. 67
234. Astrazeneca plc, art. 50
235. BHP Billiton plc, arts. 61–62
236. BP plc, art. 76
237. Carnival plc, arts. 147–148. Companies Act 1985, s. 370 provides default rules for voting if the company's articles make no relevant provision: see the text to note 45 above.
238. See, e.g., Table A (1985), regs. 60–63
239. Amersham plc, arts. 76–79, 81
240. Astrazeneca plc, arts. 58–61, 63
241. BHP Billiton plc, arts. 68–71
242. BP plc, arts. 81–86
243. Carnival plc, arts. 161–167, 169. See also the text following note 30 above.
244. See, e.g., Amersham plc, art. 80
245. Astrazeneca plc, arts. 135–142
246. BP plc, arts. 157–170. See also Nolan, above note 8.
247. BAE plc, art. 105(B).
248. See, e.g., BP plc, art. 62(C).
249. See, e.g., Amersham plc, art. 80.
250. It is at least arguable that, on its true construction, Companies Act 1985, s. 375 only allows a corporate shareholder to appoint one representative: see Myners, Review of the Impediments to Voting UK Shares: Report by Paul Myners to the Shareholder Voting Working Group (note 6 above), p. 27.
251. Amersham plc, art. 51
252. Astrazeneca plc, art. 34
253. BHP Billiton plc, art. 53(5)
254. BP plc, art. 62
255. Carnival plc, arts. 103–105.
256. See R.M. Goode, Commercial Law (London 2004) and R.C. Nolan, “Property in a Fund” (2004) 120 L.Q.R. 108.
257. Davies, Gower and Davies' Principles of Modern Company Law (note 16 above), p. 58.
258. Ferran, note 12 above, p. 132.
259. As to the “proprietary” aspects of corporate law, see J. Armour and M.J. Whincop, “The Proprietary Foundations of Corporate Law”, University of Cambridge CBR Working Paper 299, available at
260. Company Law Review, Final Report, (note 5 above), §§ 7.7 (statutory provision for multi-site meetings), 7.11 (statutory authority for electronic voting, though this paragraph is ambiguous as to whether the legislation should be mandatory or permissive), 7.13 (statutory rights for proxies), 7.20 (statutory codification of the unanimous informal consent rule).
261. See “The Historical Evolution of Shareholder Governance”, above.
262. Note D. Goddard, “Company Law Reform-Lessons from the New Zealand Experience” (1998) 16 Company and Securities Law Journal 236 at footnote 42.
263. See generally Goode (note 153 above).
264. As regards the different types of rule, see H.L.A. Hart, The Concept of Law (Oxford 1994), pp. 124–136.
265. Consider Companies Act 1985, sections 381A-381C and Schedule 15A (unanimous written resolutions). The amendments to the law governing the use of electronic communications in relation to general meetings (see note 88 above and its accompanying text) also form a specific solution to a problem and may well in time become restrictive, as anticipated by the Company Law Review: see The Strategic Framework (note 4 above), §5.7.19
266. Completing the Structure (note 13 above), §5.39
267. Final Report (note 5 above) §7.11.
268. See also note 159 above. The temptation to enact specific legislation is not unique to the United Kingdom: in Australia, see The Companies and Securities Advisory Committee, Shareholder Participation in the Modern Listed Company: Final Report (Sydney 2000), pp. 63–74
269. in Delaware, see General Corporations Law, §211.
270. See “The Historical Evolution of Shareholder Governance”, above, showing two facultative reforms in the past 59 years. The problem of legislative inertia might well be eased by the creation of a “Companies Commission”, empowered to update corporate law through secondary legislation. The Company Law Review recommended this (Final Report (note 5 above), chapter 5, esp. at §§5.49–5.58, 5.69)
271. but the Government did not accept the recommendation (Modernising Company Law (note 1 above), at §§5.25–5.27).
272. Use of the reform powers proposed in Company Law: Flexibility and Accessibility (London 2004) and clauses 774–788 of the Company Law Reform Bill might also alleviate the problem.