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