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The Dovenschmidt Quarterly

About this journal  
Issue 3, 2014 Expand all abstracts
Editorial

Access_open Editorial

Article

Access_open Can Corporate Law on Groups Assist Groups to Effectively Address Climate Change?

A Cross-Jurisdictional Analysis of Barriers and Useful Domestic Corporate Law Approaches Concerning Group Identification and Managing a Common Climate Change Policy

Authors Tineke Lambooy and Jelena Stamenkova van Rumpt
Author's information

Tineke Lambooy
Tineke Lambooy is Professor Corporate Law at Nyenrode Business University and Associate Professor Corporate Social Responsibility at Utrecht University.

Jelena Stamenkova van Rumpt
Jelena Stamenkova van Rumpt, LLM, is Advisor Responsible Investment at PGGM (Dutch Asset Manager for Pension Funds).
Article

Access_open Parental Liability for Externalities of Subsidiaries

Domestic and Extraterritorial Approaches

Keywords company law, group liability, comparative approach, liability matrix, statutory/judicial approaches
Authors Linn Anker-Sørensen
AbstractAuthor's information

    This paper offers a structural tool for examining various parental liability approaches for the externalities of its subsidiaries, meaning in the context of this paper, the negative environmental impact of their operations. In order to conclude that the parent is liable for externalities of subsidiaries, one must be able to bypass the corporate privileges of separate legal personality and limited liability, either within traditional company law or within alternative approaches offered by notably tort and environmental law. The overall acceptance of companies within groups as single entities, instead of recognition of their factual, often closely interlinked economic relationship, is a well-known barrier within traditional company law. The situation is exacerbated by the general lack of an extraterritorial liability approach and of enforcement of the rare occurrences of such liability within the traditional company law context. This paper explores various liability approaches found in jurisdictions worldwide mainly based on mapping papers from the international Sustainable Companies Project. The author introduces a matrix in order to systemize the different approaches, distinguishing between three levels: domestic and extraterritorial, statutory and judicial and indirect and direct liability. A proper distinction between the different liability approaches can be valuable in order to identify the main barriers to group liability in regulation and in jurisprudence.


Linn Anker-Sørensen
Research assistant in the Research Group Companies, Markets, Society and the Environment and its Sustainable Companies Project, Faculty of Law, University of Oslo (jus.uio.no/companies under Projects).
Article

Access_open The Consolidation of Assets and Liabilities within Company Groups

Can South African Company Law Learn from New Zealand’s Company Law?

Keywords groups, limited liability, veil piercing, consolidation, pooling
Authors Richard Stevens
AbstractAuthor's information

    Limited liability is one of the cornerstones of company law. This is also the case where companies form part of a group of companies with one controlling holding company. In South African law, as in most jurisdictions, there are exceptions to limited liability. These exceptions usually lead to the piercing of the veil between the company and its shareholders. In New Zealand company law the legislature has introduced measures to enable courts to consolidate or pool together the assets and liabilities of companies within a group in cases of liquidation of one/all of the companies in the group of companies. This article investigates whether South African company law should consider introducing these New Zealand measures into South African company law to better protect creditors of the liquidated company. The article concludes that the New Zealand measures could serve as a useful presumption to enable courts to consolidate assets and liabilities within a group of companies in cases of liquidation of one or all the companies in the group.


Richard Stevens
Senior lecturer, University of Stellenbosch; BA LLB (Stellenbosch), LLM (Tübingen) and LLD (Stellenbosch). Attorney of the High Court of South Africa.
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