Irish Centre for Commercial Law Studies Seminar

5 December 2002

“Ensuring Best Corporate Business Practices for Solvent

Companies”

Paul Appleby

Director of Corporate Enforcement

Outline of Presentation

Responsibilities of Company Directors Role of the ODCE Conclusion

Directors’ Responsibilities (1) The Company – a Separate Legal Person General Duties and Responsibilities Fiduciary Responsibility Transactions between Director and

Company Act with Due Care, Skill and Diligence Disclosure Requirements

Directors’ Responsibilities (2)

Maintaining Company Documents Register of Directors and Secretary Register of Directors’/Secretary’s interests Register of debenture holders Directors’ Service Contracts Register of Members Minute Books

Directors’ Responsibilities (3)

Basic Operational Obligations Keeping proper books of account Holding the annual general meeting (AGM) Circulating to members before every AGM a

signed copy of the balance sheet, profit and loss account, director's and auditor's report

Holding an extraordinary general meeting when circumstances require

Directors’ Responsibilities (4)

General Filing Obligations Change in constitution of company Change in registered office Change of directors/secretary Increase in Nominal/Issued Capital Annual return Mortgages and charges

Directors’ Responsibilities (5)

Duty to ensure that legal requirements are complied with

An officer in default is any person who authorises or permits a default

Burden of proof rests with the director to show that all reasonable steps were taken

ODCE Role and Powers (1)

Compliance Role Public presentations Information strategies

Printed media Electronic media

Engaging with professional bodies Other Initiatives

ODCE Role and Powers (2)

Encouraging Reporting of Non-Compliance Auditors Liquidators Professional Bodies The General Public State Authorities

ODCE Role and Powers (3)

Investigations Entitlement to access Company Documents Fact-Finding Company Investigations Criminal Investigations

Powers of Search, Seizure and Arrest Power to access Bank Documents

ODCE Role and Powers (4)

Detected Breaches of the Acts Seek to impose an administrative fine Seek Court Order to remedy a Default Initiate a summary prosecution Refer the case to the DPP for decision

Conclusion

Company Law Review Group Simplification/Consolidation Project

IAASA Bill New Directors’ Duties New Auditors’ Duties

EU Legislation