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Company Law Reform Bill [HL] (483-489)


Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 32 — Company investigations: amendments

483

 

1002    

Resignation, removal and replacement of inspectors

After section 446B of the Companies Act 1985 (c. 6) (inserted by section 1001

above) insert—

“Resignation, removal and replacement of inspectors

446C    

Resignation and revocation of appointment

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(1)   

An inspector may resign by notice in writing to the Secretary of State.

(2)   

The Secretary of State may revoke the appointment of an inspector by

notice in writing to the inspector.

446D    

Appointment of replacement inspectors

(1)   

Where—

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(a)   

an inspector resigns,

(b)   

an inspector’s appointment is revoked, or

(c)   

an inspector dies,

   

the Secretary of State may appoint one or more competent inspectors to

continue the investigation.

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(2)   

An appointment under subsection (1) shall be treated for the purposes

of this Part (apart from this section) as an appointment under the

provision of this Part under which the former inspector was appointed.

(3)   

The Secretary of State must exercise his power under subsection (1) so

as to secure that at least one inspector continues the investigation.

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(4)   

Subsection (3) does not apply if—

(a)   

the Secretary of State could give any replacement inspector a

direction under section 446B (termination of investigation), and

(b)   

such a direction would (under subsection (4) of that section)

result in a final report not being made.

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(5)   

In this section, references to an investigation include any investigation

the former inspector conducted under section 433(1) (power to

investigate affairs of holding company or subsidiary).”.

1003    

Power to obtain information from former inspectors etc

(1)   

After section 446D of the Companies Act 1985 (inserted by section 1002 above)

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insert—

“Power to obtain information from former inspectors etc

446E    

Obtaining information from former inspectors etc

(1)   

This section applies to a person who was appointed as an inspector

under this Part—

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(a)   

who has resigned, or

(b)   

whose appointment has been revoked.

(2)   

This section also applies to an inspector to whom the Secretary of State

has given a direction under section 446B (termination of investigation).

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 32 — Company investigations: amendments

484

 

(3)   

The Secretary of State may direct a person to whom this section applies

to produce documents obtained or generated by that person during the

course of his investigation to—

(a)   

the Secretary of State, or

(b)   

an inspector appointed under this Part.

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(4)   

The power under subsection (3) to require production of a document

includes power, in the case of a document not in hard copy form, to

require the production of a copy of the document—

(a)   

in hard copy form, or

(b)   

in a form from which a hard copy can be readily obtained.

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(5)   

The Secretary of State may take copies of or extracts from a document

produced in pursuance of this section.

(6)   

The Secretary of State may direct a person to whom this section applies

to inform him of any matters that came to that person’s knowledge as

a result of his investigation.

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(7)   

A person shall comply with any direction given to him under this

section.

(8)   

In this section—

(a)   

references to the investigation of a former inspector or inspector

include any investigation he conducted under section 433(1)

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(power to investigate affairs of holding company or subsidiary),

and

(b)   

“document” includes information recorded in any form.”.

(2)   

In section 451A of that Act (disclosure of information by Secretary of State or

inspector), in subsection (1)(a) for “446” substitute “446E”.

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(3)   

In section 452(1) of that Act (privileged information) for “446” substitute

“446E”.

1004    

Power to require production of documents

(1)   

In section 434 of the Companies Act 1985 (production of documents and

evidence to inspectors), for subsection (6) substitute—

30

“(6)   

In this section “document” includes information recorded in any form.

(7)   

The power under this section to require production of a document

includes power, in the case of a document not in hard copy form, to

require the production of a copy of the document—

(a)   

in hard copy form, or

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(b)   

in a form from which a hard copy can be readily obtained.

(8)   

An inspector may take copies of or extracts from a document produced

in pursuance of this section.”.

(2)   

In section 447 of the Companies Act 1985 (power of Secretary of State to require

documents and information), for subsection (9) substitute—

40

“(9)   

The power under this section to require production of a document

includes power, in the case of a document not in hard copy form, to

require the production of a copy of the document—

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 33 — UK companies not formed under the Companies Acts
Chapter 1 — Companies not formed under the Companies Acts but authorised to register

485

 

(a)   

in hard copy form, or

(b)   

in a form from which a hard copy can be readily obtained.”.

1005    

Disqualification orders: consequential amendments

In section 8(1A)(b)(i) of the Company Directors Disqualification Act 1986

(c. 46) (disqualification after investigation of company: meaning of

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“investigative material”)—

(a)   

after “section” insert “437, 446E,”, and

(b)   

after “448” insert “, 451A”.

Part 33

UK companies not formed under the Companies Acts

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Chapter 1

Companies not formed under the Companies Acts but authorised to register

1006    

Companies authorised to register under the Companies Acts

(1)   

This section applies to—

(a)   

any company that was in existence on 2nd November 1862 (including

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any company registered under the Joint Stock Companies Acts), and

(b)   

any company formed after that date (whether before or after the

commencement of this Act)—

(i)   

in pursuance of an Act of Parliament other than the Companies

Acts or any of the former Companies Acts,

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(ii)   

in pursuance of letters patent, or

(iii)   

that is otherwise duly constituted according to law.

(2)   

Any such company may on making application register under this Act.

(3)   

Subject to the following provisions, it may register as an unlimited company,

as a company limited by shares or as a company limited by guarantee.

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(4)   

A company having the liability of its members limited by Act of Parliament or

letters patent—

(a)   

may not register under this section unless it is a joint stock company,

and

(b)   

may not register under this section as an unlimited company or a

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company limited by guarantee.

(5)   

A company that is not a joint stock company may not register under this

section as a company limited by shares.

(6)   

The registration of a company under this section is not invalid by reason that

it has taken place with a view to the company’s being wound up.

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1007    

Definition of “joint stock company”

(1)   

For the purposes of section 1006 (companies authorised to register under the

Companies Acts) “joint stock company” means a company—

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 33 — UK companies not formed under the Companies Acts
Chapter 2 — Unregistered companies

486

 

(a)   

having a permanent paid-up or nominal share capital of fixed amount

divided into shares, also of fixed amount, or held and transferable as

stock, or divided and held partly in one way and partly in the other,

and

(b)   

formed on the principle of having for its members the holders of those

5

shares or that stock, and no other persons.

(2)   

Such a company when registered with limited liability under the Companies

Acts is deemed a company limited by shares.

1008    

Power to make provision by regulations

(1)   

The Secretary of State may make provision by regulations—

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(a)   

for and in connection with registration under section 1006 (companies

not formed under the Companies Acts but authorised to register), and

(b)   

as to the application to companies so registered of the provisions of the

Companies Acts.

(2)   

Without prejudice to the generality of that power, regulations under this

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section may make provision corresponding to any provision formerly made by

Chapter 2 of Part 22 of the Companies Act 1985 (c. 6).

(3)   

Regulations under this section are subject to negative resolution procedure.

1009    

Application of provisions to existing companies

   

The provisions of the Companies Acts apply to companies registered but not

20

formed under any of the former Companies Acts in the same manner as they

apply to companies registered under section 1006.

Chapter 2

Unregistered companies

1010    

Unregistered companies

25

(1)   

This section applies to bodies corporate incorporated in and having a principal

place of business in the United Kingdom, other than—

(a)   

bodies incorporated by, or registered under, a public general Act of

Parliament;

(b)   

bodies not formed for the purpose of carrying on a business that has for

30

its object the acquisition of gain by the body or its individual members;

(c)   

bodies for the time being exempted from this section by direction of the

Secretary of State;

(d)   

open-ended investment companies.

(2)   

The Secretary of State may make provision by regulations applying specified

35

provisions of the Companies Acts to all, or any specified description of, the

bodies to which this section applies.

(3)   

The regulations may provide that the specified provisions of the Companies

Acts apply subject to any specified limitations and to such adaptations and

modifications (if any) as may be specified.

40

(4)   

This section does not—

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 34 — Overseas companies

487

 

(a)   

repeal or revoke in whole or in part any enactment, royal charter or

other instrument constituting or regulating any body in relation to

which provisions of the Companies Acts are applied by regulations

under this section, or

(b)   

restrict the power of Her Majesty to grant a charter in lieu or

5

supplementary to any such charter.

   

But in relation to any such body the operation of any such enactment, charter

or instrument is suspended in so far as it is inconsistent with any of those

provisions as they apply for the time being to that body.

(5)   

Regulations under this section are subject to negative resolution procedure.

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Part 34

Overseas companies

Introductory

1011    

Overseas companies

   

In the Companies Acts an “overseas company” means a company incorporated

15

outside the United Kingdom.

Registration of particulars

1012    

Duty to register particulars

(1)   

The Secretary of State may make provision by regulations requiring an

overseas company—

20

(a)   

to deliver to the registrar for registration a return containing specified

particulars, and

(b)   

to deliver to the registrar with the return specified documents.

(2)   

The regulations—

(a)   

must, in the case of a company other than a Gibraltar company, require

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the company to register particulars if the company opens a branch in

the United Kingdom, and

(b)   

may, in the case of a Gibraltar company, require the company to

register particulars if the company opens a branch in the United

Kingdom, and

30

(c)   

may, in any case, require the registration of particulars in such other

circumstances as may be specified.

(3)   

In subsection (2)—

“branch” means a branch within the meaning of the Eleventh Company

Law Directive (89/666/EEC);

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“Gibraltar company” means a company incorporated in Gibraltar.

(4)   

The regulations may provide that where a company has registered particulars

under this section and any alteration is made—

(a)   

in the specified particulars, or

(b)   

in any document delivered with the return,

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Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 34 — Overseas companies

488

 

   

the company must deliver to the registrar for registration a return containing

specified particulars of the alteration.

(5)   

The regulations may make provision—

(a)   

requiring the return under this section to be delivered for registration

to the registrar for a specified part of the United Kingdom, and

5

(b)   

requiring it to be so delivered before the end of a specified period.

(6)   

The regulations may make different provision according to—

(a)   

the place where the company is incorporated, and

(b)   

the activities carried on (or proposed to be carried on) by it.

   

This is without prejudice to the general power to make different provision for

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different cases.

(7)   

Regulations under this section are subject to affirmative resolution procedure.

1013    

Registered name of overseas company

(1)   

Regulations under section 1012 (duty to register particulars) must require an

overseas company that is required to register particulars to state the name

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under which it proposes to be registered.

(2)   

This may be—

(a)   

the company’s corporate name (that is, its name under the law of the

country or territory in which it is incorporated) or

(b)   

an alternative name specified in accordance with section 1014.

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(3)   

Subject only to subsection (5), an EEA company may always be registered

under its corporate name.

(4)   

In any other case, the following provisions of Part 5 (a company’s name) apply

in relation to the registration of the name of an overseas company—

(a)   

section 54 (prohibited names);

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(b)   

sections 55 to 57 (sensitive words and expressions);

(c)   

section 66 (inappropriate use of indications of company type or legal

form);

(d)   

sections 67 to 74 (similarity to other names);

(e)   

section 75 (provision of misleading information etc);

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(f)   

section 76 (misleading indication of activities).

(5)   

The provisions of section 58 (permitted characters etc) apply in every case.

(6)   

Any reference in the provisions mentioned in subsection (4) or (5) to a change

of name shall be read as a reference to registration of a different name under

section 1014.

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1014    

Registration under alternative name

(1)   

An overseas company that is required to register particulars under section 1012

may at any time deliver to the registrar for registration a statement specifying

a name, other than its corporate name, under which it proposes to carry on

business in the United Kingdom.

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(2)   

An overseas company that has registered an alternative name may at any time

deliver to the registrar of companies for registration a statement specifying a

different name under which it proposes to carry on business in the United

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 34 — Overseas companies

489

 

Kingdom (which may be its corporate name or a further alternative) in

substitution for the name previously registered.

(3)   

The name by which an overseas company is for the time being registered under

this section is, for all purposes of the law applying in the United Kingdom,

deemed to be the company’s corporate name.

5

(4)   

This does not—

(a)   

affect the references in this section or section 1013 to the company’s

corporate name,

(b)   

affect any rights or obligation of the company, or

(c)   

render defective any legal proceedings by or against the company.

10

(5)   

Any legal proceedings that might have been continued or commenced against

the company by its corporate name, or any name previously registered under

this section, may be continued or commenced against it by its name for the time

being so registered.

Other requirements

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1015    

Accounts and reports: general

(1)   

The Secretary of State may make provision by regulations requiring an

overseas company that is required to register particulars under section 1012

(a)   

to prepare the like accounts and directors’ report, and

(b)   

cause to be prepared such an auditor’s report,

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as would be required if the company were formed and registered under this

Act.

(2)   

The regulations may for this purpose apply, with or without modifications, all

or any of the provisions of—

Part 16 (accounts and reports), and

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Part 17 (audit).

(3)   

The Secretary of State may make provision by regulations requiring an

overseas company to deliver to the registrar copies of—

(a)   

the accounts and reports prepared in accordance with the regulations,

or

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(b)   

the accounts and reports that it is required to prepare and have audited

under the law of the country in which it is incorporated.

(4)   

Regulations under this section are subject to negative resolution procedure.

1016    

Accounts and reports: credit or financial institutions

(1)   

This section applies to a credit or financial institution—

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(a)   

that is incorporated or otherwise formed outside the United Kingdom

and Gibraltar,

(b)   

whose head office is outside the United Kingdom and Gibraltar, and

(c)   

that has a branch in the United Kingdom.

(2)   

In subsection (1) “branch” means a place of business that forms a legally

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dependent part of the institution and conducts directly all or some of the

operations inherent in its business.

 
 

 
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