|Company Law Reform Bill [HL] - continued||House of Commons|
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Clause 701: Registered name of overseas company
1266. This clause applies to overseas companies required to register with the registrar of companies by regulations made under clause 700 (duty to register particulars). Overseas companies registered under that clause must be required to provide a name for registration. The name will be entered on the index of company names (clause 752).
1267. The company may register its corporate name (by which is meant its registered or legal name in its place of incorporation) or another name (referred to in these clauses as an alternative name). All companies are free to choose whether to register their corporate name or an alternative name, subject to the restrictions imposed by subsections (4) and (5). An alternative name can only be registered if it complies with the requirements imposed on the names of companies formed and registered under the Bill. Likewise, unless the overseas company is incorporated in an EEA State, its corporate name can only be registered if it complies with these requirements. The only requirements of Chapters 1 to 4 of Part 5 (a company's name) that do not apply are the requirements for the names of certain types of company to end with certain words (clauses 59 and 60). These rules are not appropriate for overseas companies as they are specific to the types of company formed under the Companies Acts.
1268. Where the overseas company is incorporated in an EEA State (defined in clause 810), it may always register its corporate name, even if it does not comply with the requirements imposed on the names of companies formed under the Bill, other than the requirement relating to permitted characters (contained in clause 58). This clause, together with clause 702 (registration under alternative name) replaces section 694 of the 1985 Act.
Clause 702: Registration under alternative name
1269. This clause enables an overseas company to be registered under an alternative name rather than its corporate name. It also enables an overseas company to change the name by which it is registered. To do so it must deliver a statement to the registrar of companies with its proposed new name for registration. As long as the proposed name complies with the requirements for registration (see clause 701) the registrar of companies will enter it on the index of company names in place of the name previously registered.
1270. The clause also provides that whatever name under which an overseas company is registered, whether its corporate name or an alternative, it is treated as being its corporate name for the purposes of the law in the UK. The change of name will not affect any legal proceedings that are continued or commenced by or against the company.
Clause 703: Accounts and reports: general
1271. This clause confers on the Secretary of State a power to make regulations requiring overseas companies to prepare accounts and directors' reports, and to obtain an auditor's report. The requirements must be like those imposed on companies formed and registered under the Bill. The accounts, directors' report and auditor's report requirements applying to companies formed and registered under the Bill appear in Part 15 (accounts and reports) and Part 16 (audit).
1272. Regulations under this clause may modify those requirements in their application to overseas companies as appropriate. Regulations under this clause may require the overseas company to deliver to the registrar of companies copies of the accounts and reports prepared in accordance with the regulations; alternatively the overseas company may be required to deliver to the registrar a copy of the accounts and reports that it prepared and had audited in accordance with the law of the country in which it is incorporated. The registrar will place the accounts and reports on the public register.
1273. Regulations under this clause will replace sections 699AA to 703 and Schedule 21D to the 1985 Act. The regulations will be subject to the negative resolution procedure.
Clause 704: Accounts and reports: credit or financial institutions
1274. This clause applies only to credit or financial institutions incorporated or formed outside the UK and Gibraltar, with their head office outside the UK and Gibraltar but having a branch in the UK (subsection (1)). This clause confers on the Secretary of State a power to make regulations specifically in respect of accounts and directors' reports by these credit or financial institutions.
1275. Credit institution and financial institution are both defined in clause 813.
1276. Regulations under this clause will implement requirements of the Bank Branches Directive 89/117/EEC of the Council of 13 February 1989. The definition of "branch" for the purposes of this clause (subsection (2)) is based on article 1(3) of Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions. The power to make regulations under this clause takes the same pattern as under clause 703 (accounts and reports: general).
1277. The regulations will replace section 699A and Schedule 21C to the 1985 Act. The regulations will be subject to the negative resolution procedure.
Clause 705: Trading disclosures
1278. This clause confers on the Secretary of State a power to make regulations as to the information that overseas companies must display in specified locations, include in specified documents or communications, or provide to those who make a request in the course of business. Regulations made under this clause will replace the provision made by section 693 of the 1985 Act. This clause complements the similar power under clause 82 to make regulations imposing trading disclosure obligations on companies formed and registered under the Companies Acts. Regulations under this clause may require an overseas company carrying on business in the UK:
1279. They may also make provision, corresponding to that made in clauses 83 and 84, in respect of a failure by a company formed and registered under the Companies
Acts to comply with the trading disclosure requirements imposed on them by regulations under clause 82.
1280. Regulations under this clause, like those under clause 82, are subject to the affirmative resolution procedure.
Clause 706: Other returns etc
1281. This clause applies to overseas companies that are required to register particulars under clause 700. It confers on the Secretary of State a power to make regulations requiring those companies to deliver returns to the registrar if they are being wound up or subjected to insolvency proceedings. The regulations may also require the liquidator of such a company to deliver returns to the registrar. They may specify the circumstances in which a return is to be made to the registrar. For example, on termination of the winding-up. The regulations may specify the information to be included in the return and set deadlines for sending it to the registrar (subsection (3)). They may require notice to be given to the registrar of the appointment of a judicial factor in Scotland (subsection (4)) and may to that end include any provision corresponding to the equivalent obligation placed on companies incorporated in the United Kingdom by clause 801 (subsection (5)).
1282. The regulations will replace sections 703P and 703Q of the 1985 Act. The regulations will be subject to the affirmative resolution procedure.
Clause 707: Offences
1283. This clause ensures that the regulations will be able to specify the person or persons who would be responsible for complying with any specified requirement of the regulations. It allows regulations to provide for offences, including who would be liable in the event of any contravention and what might be considered a defence should a charge be brought. The maximum level of penalty permissible under the regulations on indictment is an unlimited fine and on summary conviction a fine not exceeding level 5 on the standard scale, or for continued contravention, a daily default fine not exceeding one-tenth of that.
Clause 708: Disclosure of individual's residential address: protection from disclosure
1284. If the regulations under clause 700 require an overseas company to register an individual's usual residential address, then the regulations must also provide for its protection on the same basis as is provided for the directors' residential addresses in Chapter 8 of Part 10.
Clause 709: Requirement to identify persons authorised to accept service of documents
1285. Every overseas company required by regulations under clause 700 to register with the registrar of companies must register particulars identifying every person resident in the UK who is authorised to accept service of documents on the company's behalf or make a statement that there is no such person.
1286. A document may be served on a registered overseas company by leaving it at, or sending it by post to, the registered address of any person resident in the UK who is authorised to accept service on the company's behalf (clause 790) or, if there is no such person, or service cannot be effected for any reason including where any such person refuses service, by leaving it at or sending by post to any place of business of the company in the UK
1287. This clause replaces the provision made by section 691(1)(b)(ii) and paragraph 3(e) of Schedule 21A to the 1985 Act.
Clause 710: Registrar to whom returns, notices etc to be delivered
1288. This clause makes provision for regulations in respect of overseas companies that are required to register, or have registered, particulars under clause 700 in more than one part of the United Kingdom. In such cases regulations may set out what should happen, for example, if the overseas company has registered branches in Scotland and in Northern Ireland; the regulations may require the returns or notices to be delivered to each registrar with which the company is registered, or to the registrar for such part or parts of the United Kingdom as the regulations may specify.
1289. Regulations made under this clause will be subject to the negative resolution procedure.
Clause 711: Duty to give notice of ceasing to have registrable presence
1290. Where an overseas company has registered particulars with the registrar following the opening of a branch in the United Kingdom, this clause will enable regulations to require the overseas company to give notice to the registrar if it subsequently closes that branch.
1291. In addition, an overseas company that has registered particulars in other circumstances specified by regulations under clause 700 may be required by regulations to give notice to the registrar if those circumstances cease to obtain. The regulations will require the notice to be delivered to the registrar for the part of the United Kingdom in which the overseas company was registered and may set deadlines for sending the information to the registrar.
1292. Regulations made under this clause will be subject to negative resolution procedure.
Clause 712: Application of provisions in case of relocation of branch
1293. This clause provides that the relocation of a branch from one part of the UK to another is to be treated as the closing of the branch in one part and the opening in another. For example, if an overseas company moves a branch from Scotland to Wales, it must tell the registrar for Scotland that it is closing the branch. It must also tell the registrar for England and Wales that it is opening a branch in Wales. This clause replaces the provision made by section 695A(4) of the 1985 Act.
1294. This Part largely replaces Part 24 of the 1985 Act, and sets out the basic functions of the registrar of companies (these functions are currently carried out by Companies House in England and Wales and in Scotland and by the equivalent registry in Northern Ireland). The new clauses implement a number of recommendations of the CLR.
Clause 713: The registrar
Clause 714: The registrar's functions
1295. The Registrar of Companies in England and Wales and the Registrar of Companies in Scotland have various functions allocated by legislation - in particular, the 1985 Act. The most significant of these are functions relating to formation of companies and the collection and distribution of company information.
1296. Clause 713 carries forward the approach of section 704 of the 1985 Act as to the appointment and status of the registrar of companies but omits some of the more antiquated parts of that provision. It specifies that there shall continue to be a registrar for England and Wales, and a registrar for Scotland, and also, consistent with the approach of the Bill which is to legislate for company law on a UK-wide basis, a registrar of companies for Northern Ireland. Subsection (4) takes account of the fact that, with increasing use of electronic communications, a "company registered in Scotland" (for example) may not be physically registered there.
1297. Under clause 714, the registrar will continue to have the functions conferred on her in the Companies Acts and in other legislation as specified in the clause. The Secretary of State will additionally have power to confer on the registrar particular functions in relation to the registration of companies or other matters.
Clause 715: The registrar's official seal
1298. This clause, replacing section 704(4) of the 1985 Act, provides that the registrar will have an official seal for the authentication of documents.
Clause 716: Fees payable to the registrar
1299. This clause gives the Secretary of State a power to set fees by regulations in relation to any function of the registrar and in relation to the provision of services and facilities incidental to her functions. It replaces section 708 of the 1985 Companies Act, but provides more information on the types of issue which may be covered within the regulations, although these lists are not exhaustive.
1300. As now, fees relating to the normal statutory obligations of companies under companies legislation will be set by regulations made by the Secretary of State. It will also be possible for fees to be charged for any ad hoc and bespoke discretionary services which Companies House wishes to provide. The 1985 Act (section 708(5)) makes clear that the registrar can herself determine fees for services for which there is no direct legal obligation. Subsection (5) of the clause replaces this with a more general power for the registrar to determine fees where no fee has been set in regulations by the Secretary of State. Such fees might relate for example to the introduction of new services (e.g. those made possible by new technologies) which could not have been anticipated when the Secretary of State last made fees regulations; or for services such as seminars and road shows which Companies House arranges.
Certificates of incorporation
Clause 717: Public notice of issue of certificate of incorporation
Clause 718: Right to certificate of incorporation
1301. These clauses replace, respectively, sections 711(1)(a) (notice of the issue of certificates of incorporation to be published in the Gazette) and 710 (which allows any person to obtain a certificate of incorporation of a company) of the 1985 Act. They cover all certificates of incorporation (including, for example, certificates of incorporation on change of name). Clause 717 provides for the possibility of alternatives to publication in the Gazette (see clause 769, which enables the Secretary of State to make regulations catering for this possibility), and also ensures that the publication must include the company's registered number as well as its name.
Clause 719: Company's registered numbers
Clause 720: Registered numbers of branches of overseas company
1302. Clause 719 replaces section 705 of the 1985 Act (rules on companies' registered numbers), without change of substance. Clause 720 replaces those aspects of section 705A of that Act which relate to company numbers (other aspects of that sections are reproduced in clause 700 of the Bill).
Delivery of documents to the registrar
Clause 721: Registrar's requirements
1303. This clause gives the registrar power to make rules about form, authentication and manner of delivery of documents, including the physical form and means of communication (e.g. electronic or hard-copy by post), the format, and the address to which it is to be sent, and where appropriate, technical specification. The power conferred by this section does not authorise the registrar to require documents to be delivered in electronic form.
Clause 722: Power to require delivery by electronic means
1304. This clause provides that the Secretary of State (not the registrar) will have a new power to provide for electronic-only delivery of classes of document. The Secretary of State will only be able to exercise this power in respect of classes of document which are authorised or required to be delivered and for which the registrar has published rules relating to electronic delivery (in other words where it is clear precisely what the mechanism for the electronic communication should be).
Clause 723: Agreement for delivery by electronic means
1305. This clause sets out the power of the registrar to make agreements with companies to deliver information to her only electronically. The agreements could cover all documents (to the extent that electronic means of filing are available) or just selected documents. It is envisaged that the agreements will be in a standard form and contain detailed provisions for communications between the registrar and the company (including possible use of codes and encryption). The agreements need not be available to be entered into by everyone in the same form or at all.
Clause 724: Document not delivered until received
1306. This clause makes clear that "delivery" obligations go beyond an obligation simply to send or post information to the registrar, and that the registrar may make rules governing what it is for a document to be "received" (which might include, for example, setting out which offices of the registrar should receive a document).
Clause 725: Defective delivery
1307. When the registrar receives documents, she has to decide whether to make the information contained in them available for public inspection or not. This clause clarifies her powers in this area. It ensures that the registrar has power to omit from the register any or all of the information contained in a document which does not meet the necessary requirements (for example, as to form or manner of delivery, or which is not appropriately authenticated; or where requirements as to content are not met, or where the fee payable has not been made). However, the registrar will still be able to accept (and register) such a document at her discretion, although such acceptance on her part does not (subsection (3)) exempt the filer from any consequence which may attach to their failure to comply with the original requirements for delivery.
Clause 726: Informal correction of document
1308. This is a new provision, giving the registrar power to correct information by informal means (for example, by taking revisions or supplementary information from
the company over the telephone) but only in very limited circumstances. It can be used as an alternative to rejecting or removing information:
1309. This ability to make informal corrections would only apply where companies have informed the registrar that it should apply. The registrar will need to initiate the correction and be satisfied that the person is authorised to give the information sought. In order to be satisfied as to the authority of the person she is telephoning, the registrar would be able to provide for identification numbers or other checks on identity.
Clause 727: Voluntary replacement of document previously delivered
1310. This clause sets out how the registrar may accept a replacement document where, for example, a document is delivered in the wrong form. In essence she must satisfy herself that the replacement document is delivered by the original filer, or by the company to which the original document relates, and that the replacement is "properly delivered" (as defined in clause 725(1)). It also allows her to impose requirements which will ensure that the replacement can clearly be associated with a particular original.
Clause 728: Exclusion of unnecessary material
1311. This clause provides for cases where a delivered document contains unnecessary material (i.e. material for which there was no legal requirement). It provides that the registrar may exclude the material from the register (treating it as defectively-delivered under clause 725); may use the informal correction procedure in clause 726; and may issue a notice to remedy the defective delivery (clause 729).
Clause 729: Registrar's notice to remedy defective delivery
1312. A process is needed where a document is delivered to the registrar but is not "properly" delivered. That is to say, it does not satisfy the requirements in clause 725 for example as to its contents, its form and manner of delivery, or its authentication. In these circumstances the registrar will be able to send a notice to the person who delivered the document. If their contact details are unknown, she will send a notice to the company. The presenter (or other person) will then have 14 days in which to address the grounds for rejection, by sending a replacement set of information which
satisfies the requirements. If no replacement is provided, an offence is committed. This procedure replaces the more limited procedure in section 706 of the 1985 Act.
Public notice of receipt of certain documents
Clause 730: Public notice of receipt of certain documents
Clause 731: Documents subject to Directive disclosure requirements
1313. These clauses replace section 711 of the 1985 Act, which provides that certain notices must be published in the Gazette (that is, the London, Edinburgh or Belfast Gazette as appropriate: see clause 813), and lists the documents to which that requirement relates. This list derives from Community legislation, principally the First Company Law Directive (68/151/EEC) as amended by Directive 2003/58/EC. Clause 730 makes clear that notices of receipt of these documents must be published either in the Gazette, or by some other means (as may be specified under clause 769).
Clause 732: Effect of failure to give public notice
1314. This clause effectively replaces section 42 of the 1985 Act. It sets out how a company, in its dealings with third parties, may not rely on the consequences of certain events (those which are set out in subsection (2)) unless notice of the event has duly appeared in the Gazette or been published in some other way provided for in clause 769.
Clause 733: The register
1315. This clause imposes an obligation on the registrar to keep a record of the material she receives. It gives her discretion as to the form in which the record is kept. Subsection (3) makes clear that this discretion will be subject to the terms of the amended First Company Law Directive (68/151/EEC), Article 3.2 of which requires any documents and particulars it covers which are delivered on after 1 January 2007 to be retained in electronic form. The documents covered by this obligation are those already set out in clause 731.
Clause 734: Annotation of the register
1316. It is important that the register is as useful and transparent a source of information as possible for users. Hence, the clause sets out certain circumstances in which the registrar will be obliged to annotate the information on the register to gloss it or provide supplementary information. Annotations must for example be provided to show the date of delivery of information; and in the event that information has been replaced, corrected or removed. This clause responds to a specific recommendation of the CLR (as summarised in their Final Report, paragraph 11.48). Subsection (5) makes clear that the court can dispense with the need for annotation in certain circumstances.
1317. The Secretary of State has power to make provision by regulations extending the circumstances where the registrar can or should make annotations.
|© Parliamentary copyright 2006||Prepared: 26 May 2006|