The limitations of legislation in the field of business law: a study of developments in company law, bankruptcy and diligence

  This critical appraisal demonstrates three particular themes that are dominant in certain areas of business law, these themes being:
 achieving the balance between the interests of debtors and creditors,
 the use of legislation to alter business and social behaviour and
 the tension between the intention of the legislation and the actuality.
These themes are demonstrated throughout my two submitted publications, Company Law, and the Annotated edition of the Bankruptcy and Diligence etc. (Scotland) Act 2007. These form a corpus of work on Scottish business law and in particular, company law, bankruptcy law and diligence.
The critical appraisal is a review of certain aspects of this corpus, indicating how and for what purpose these books have been written, the use and effectiveness of the law in each area, and analysing the degree to which the legislation has been successful.
The process of writing this critical appraisal caused me to reflect on the drafting of the Companies Act 2006, recent developments in case law on the corporate veil and in particular the efficacy of section 172 of the Companies Act 2006. This encouraged me to carry out further research on how well (or not) s.172 had worked. This proved a particularly fruitful area of research and so has been given substantial treatment in its own right in Chapter 4.
The Bankruptcy and Diligence etc. (Scotland) Act 2007 is subjected to an analysis in the light of the three themes to show how the Act was intended to realign the priorities of the needs of debtors and creditors in the light of changed social views on creditors’ rights and on bankruptcy.
An essential point of this critical appraisal is that legal theories are not as important in the drafting and passing of legislation as is sometimes suggested. This critical appraisal argues that within the areas under discussion, attempts to fit the final legislation into theoretical frameworks do not adequately take account of the political reality underpinning the passing of the legislation. It also argues that there is a schism between political attempts to alter business and social behaviour, or, as the case may be, to alter the interests of debtors and creditors, through the use of legislation, and what actually happens. In the case of diligence, political considerations worked to defeat some ends of the proposed legislation; and in the case of bankruptcy, the reforms introduced by Bankruptcy and Diligence etc. (Scotland) Act 2007, though welcome, required further amendment. In the case of company law, the legislation was ambitious but naïve.

  • Dates:

    2012 to 2015

  • Qualification:

    Doctorate (PhD by published works)

Project Team

Outputs

Themes

Research Areas