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Chapter

Cover Company Law Concentrate

7. Capital and capital maintenance  

This chapter discusses the two principal types of capital that companies acquire: share capital (capital obtained by selling shares) and debt capital (capital borrowed from others). Having obtained share capital through the selling of shares, the law requires that the company ‘maintain’ that capital by not distributing it in unauthorized ways, notably by prohibiting companies from returning capital to the shareholders prior to liquidation.

Chapter

Cover Company Law Concentrate

7. Capital and capital maintenance  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the two principal types of capital that companies acquire: share capital (capital obtained by selling shares) and debt capital (capital borrowed from others). Having obtained share capital through the selling of shares, the law requires that the company ‘maintain’ that capital by not distributing it in unauthorized ways, notably by prohibiting companies from returning capital to the shareholders prior to liquidation.

Chapter

Cover Card & James' Business Law

21. Shares and capital maintenance  

This chapter examines the nature of shares and the share capital of companies, and the provisions for the maintenance of capital as they apply to companies with a share capital. It begins by defining what a share is before moving on to discuss the classifications of share capital. The process by which shares are created is examined in detail, including an examination of the allotment and issuing of shares, the minimum capital requirement, and the company’s ability to issue different classes of share. The chapter then discusses the capital maintenance regime—a series of rules designed to protect the company’s creditors by preventing capital from being returned to shareholders (including the restructuring of share capital, and the rules relating to distribution of profits).

Chapter

Cover Banking Law and Regulation

8. Micro-prudential regulation I  

Capital adequacy

Iris Chiu and Joanna Wilson

This chapter studies capital adequacy regulation, which prescribes that banks can only take certain levels of risk that are supported by adequate levels of capital. In this way, capital adequacy rules provide a form of assurance that banks with adequate levels of capital are likely able to withstand losses that may result from their risk-taking. The Basel Committee developed its first set of capital adequacy standards in the Basel I Capital Accord of 1988. It was subsequently overhauled into the Basel II Capital Accord in 2003. After the global financial crisis of 2007–9, the Basel II Accord’s shortcomings were extensively discussed and the Basel Committee introduced a package of reforms in order to plug the gaps in Basel II. The Basel III package is the most extensive suite of micro-prudential regulation reforms seen to date, as they deal with capital adequacy and a range of other micro-prudential standards.

Chapter

Cover Company Law

16. Share capital  

This chapter assesses what share capital is. A share is an item of property that confers upon its holder rights as set out in the Companies Act 2006 (CA 2006) and the constitution. A public company must have an allotted share capital of at least £50,000, while private companies are not subject to a minimum share capital requirement. Who has the power to allot shares depends upon the type of company, the class of share being allotted, and how many other classes of shares the company has. However, shareholders generally have a right of pre-emption, meaning that, when a company issues new shares, they have to first be offered to the existing shareholders. Meanwhile, a transfer of shares occurs where a shareholder sells or gifts their shares to another, while a transmission of shares usually occurs where shares pass from one person to another due to the operation of law.

Chapter

Cover Company Law

17. The maintenance of capital  

This chapter addresses what is known as the capital maintenance doctrine—a series of rules designed to protect the company’s creditors by ensuring that capital is maintained and not returned to the company’s members. Any limited company can reduce its share capital by passing a special resolution followed by court confirmation. A private company can reduce its share capital by passing a special resolution supported by a solvency statement. On the other hand, public companies are generally prohibited from providing financial assistance to others to acquire their shares. Meanwhile, a company can generally only pay a dividend out of distributable profits. The typical three-stage process for paying dividends is that the directors recommend an amount to be distributed by way of dividend; the company declares the dividend by passing an ordinary resolution; and the dividend is paid out.

Chapter

Cover European Union Law

15. Free movement of capital  

Leo Flynn

This chapter discusses EU law on the free movement of capital. It first considers the development of the current rules on capital, focusing on their material scope, direct effect, and role in relation to third countries. It then explains how the concept of restrictions, which is a feature of all internal market freedoms, operates in relation to capital. Next, it deals with the power of Member States to limit capital flows between different parts of the Union, as well as into and out of the Union. Finally, it examines the effects of case law regarding capital movement in relation to philanthropic and charitable activities, in order to see how the free movement of capital affects the ability of Member States to design the instruments by which they organize the delivery of services they consider are in the public interest.

Chapter

Cover European Union Law

15. Free movement of capital  

Leo Flynn

This chapter discusses EU law on the free movement of capital. It first considers the development of the current rules on capital, focusing on their material scope, direct effect, and role in relation to third countries. It then explains how the concept of restrictions, which is a feature of all internal market freedoms, operates in relation to capital. Next, it deals with the power of Member States to limit capital flows between different parts of the Union, as well as into and out of the Union. Finally, it examines the effects of case law regarding capital movement in relation to philanthropic and charitable activities, in order to see how the free movement of capital affects the ability of Member States to design the instruments by which they organize the delivery of services they consider are in the public interest.

Chapter

Cover Principles of Banking Law

2. Prudential Regulation I: Capital and Liquidity Controls  

Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare

This chapter begins with a discussion of the reasons for bank regulation. Traditionally the focus of bank regulation has been the protection of individual institutions' stability from a depositors' run, and of depositors and deposit guarantee schemes from incurring losses in the event of bank failures. Another fundamental goal was the protection of taxpayers from a public bailout and from the kind of moral hazard that arises when public bank rescues are likely. However, in recent years, and especially since the global financial crisis the focus of bank regulation has broadened to include eliminating too-big-to-fail institutions; increasing capital cushions and introducing liquidity requirements; and enhancing the resilience of the financial system to withstand system-wide shocks. The remainder of the chapter covers prudential regulation, capital regulation, the different phases of the Basel capital framework, and the total loss absorbing capacity standard.

Chapter

Cover Sealy & Worthington's Text, Cases, and Materials in Company Law

12. Distributions to Shareholders and Capital Maintenance  

This chapter deals with raising capital from shareholders (equity capital). It considers: attracting capital and protecting both shareholders and creditors; terminology associated with legal capital; the minimum capital requirements for company formation; limiting access to shares; offers to the public to purchase shares and remedies for misleading offers; and collecting in the company’s capital (issue of shares at a discount, issue of shares at a premium and issue of shares in exchange for property).

Chapter

Cover Concentrate Questions and Answers Company Law

9. Share Capital  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, suggested answers with commentary, illustrative diagrams, guidance on how to develop your answer, suggestions for further reading, and advice on exams and coursework. This chapter examines the law on share capital for public and private companies. The doctrine of capital maintenance ensures that the company has raised the capital it claims to have raised; and that the capital is not subsequently returned, directly or indirectly, to the shareholders. There is a great deal of (mainly statutory) law surrounding this doctrine This chapter considers the capital maintenance doctrine itself and many related topics, including: the issue of shares for non-cash consideration, issue of shares at a discount, reduction of capital, purchase of a company’s own shares, redeemable shares, payment of dividends, and financial assistance by a company for the purchase of its own shares.

Chapter

Cover Introduction to Company Law

7. Creditors  

Because of limited liability, creditor protection has always been a feature of company law. Large creditors can contract ex ante for customised protection and the law facilitates this in various ways, notably by the creation of the floating charge. Non-adjusting creditors require the protection of mandatory rules, at least in some situations. Creditor protection in relation to companies in the vicinity of insolvency is now well established, not only through ‘wrongful trading’ but also via transaction invalidity rules and directors’ disqualification. For going-concern companies the emphasis is on rules restricting the shifting assets to shareholders via distributions and associated rules relating to the maintenance of capital.

Book

Cover The Substantive Law of the EU
The Substantive Law of the EU provides a critical and thorough analysis of the key principles of the substantive law of the EU, focusing on the four freedoms (goods, persons, services, and capital). An introductory chapter provides valuable context on the nature of the internal market, its evolution, and the theories behind its key principles. Each of the freedoms is then considered in turn. The book concludes with a discussion of harmonization, the regulation of the internal market, and its future.

Chapter

Cover Company Law

20. Debt capital and security  

This chapter discusses why companies borrow money, the various sources of debt capital, and the rules relating to secured and unsecured borrowing. An obvious reason why a company might borrow is because it is struggling financially, and so other forms of capital will prove insufficient to meet the company’s debts or liabilities. In such a case, debt capital may be the only obtainable form of capital. Like shares, debt securities are tradeable financial instruments that a company can issue in order to raise finance. The principal form of security is a charge, which can be either fixed or floating. When determining whether a charge is fixed or floating, the courts will focus not on how the charge is labelled, but on the rights and obligations which the parties intended to grant each other. A failure to register the charge will render the charge void against a liquidator, administrator, or creditor.

Chapter

Cover Business Law

16. Duties Relating to Corporation Finance and Capital  

This chapter discusses the details of the various obligations on companies that wish to issue and allot shares, provide debentures and charges over the company’s assets, and provide guidance on the maintenance of the company’s finances. It continues from the discussion of the administration of the company to consider the broad issue of corporate governance and identifies how a company may raise capital, while also considering the obligations placed on the directors to protect and maintain the capital of the company for its members. To appreciate the effects of the Companies Act (CA) 2006 on companies, it is important to understand the rules regarding the issuing of shares and granting of debentures to protect the company and the creditors from abuse, and how dividends are to be agreed upon and provided to shareholders.

Chapter

Cover Sealy & Worthington's Text, Cases, and Materials in Company Law

13. Raising Debt Capital: Borrowing, Debentures and Charges  

This chapter discusses the rules which govern distribution of the company’s assets to its shareholders and the rules which ensure that a company’s legal capital is maintained in the company’s hands. It covers: controls over a company’s distribution of capital; permitted reductions of capital; redemptions and repurchases of shares; financial assistance by a company for the acquisition of its own shares; and dividend distributions.

Chapter

Cover Mayson, French & Ryan on Company Law

10. Distributions and maintenance of capital  

This chapter examines the controls imposed on return of a company’s capital to its members, first by considering the common law general principle that return of capital to shareholders is illegal unless permitted by statute. It then discusses the problem of how to distinguish between a legal distribution of profits and an illegal return of capital; transfer of profits to a capital redemption reserve and use of profits to pay up bonus shares; company’s issuance and redemption of redeemable shares or purchase of its own shares; purchased shares as treasury shares; and how a company may reduce its issued share capital by special resolution. The chapter also looks at capitalisations and employees’ share schemes. It includes analysis of three court cases that are particularly significant to distributions and the maintenance of capital.

Chapter

Cover Company Law

7. Share capital  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines how company law governs maintenance of a company’s share capital, with emphasis on the distinction between private and public companies. It also discusses various ways in which shareholders might legally receive funds (‘distributions’) from the company, including issuance of shares and payment of shares in kind (that is, goods, property, or services rather than in cash). The relevance of the nominal value of shares issued to shareholders, the issue of paying dividends to shareholders, and disguised return of capital to shareholders are considered as well. The chapter also examines two other means of returning funds to shareholders, reduction of share capital and redemption or purchase by a company of its own shares, before concluding with an assessment of the prohibition and the exceptions concerning the issue of financial assistance for the acquisition of shares in a public company.

Chapter

Cover Mayson, French, and Ryan on Company Law

10. Distributions and maintenance of capital  

This chapter examines the controls imposed on return of a company’s capital to its members, first by considering the common law general principle that return of capital to shareholders is illegal unless permitted by statute. It then discusses the problem of how to distinguish between a legal distribution of profits and an illegal return of capital; transfer of profits to a capital redemption reserve and use of profits to pay up bonus shares; company’s issuance and redemption of redeemable shares or purchase of its own shares; purchased shares as treasury shares; and how a company may reduce its issued share capital by special resolution. The chapter also looks at capitalisations and employees’ share schemes. It includes analysis of three court cases that are particularly significant to distributions and the maintenance of capital.

Chapter

Cover Company Law

22. The doctrine of capital maintenance  

This chapter discusses the doctrine of capital maintenance which precludes the return of capital, directly or indirectly, to the shareholders ahead of a winding up of the company. The discussion covers the purchase and redemption of a company’s own shares, reduction of capital, distributions to the members, and financial assistance by a company for the acquisition of its own shares. Purchase and redemption schemes (buy-backs) are common transactions and are discussed in detail as is the procedure for a reduction of capital. The key issue for creditors, however, is the risk posed by distributions to members and much of the chapter is devoted to discussing the distribution rules laid down in CA 2006, Part 23 and the common law. The chapter discusses the rules as to distributable profits and the liability of directors in the case of improper distributions and, in particular, their liability for dividends improperly declared.