Commercial Law Dissertation Topic Examples

Commercial Law, also known as Trade Law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in the sale of goods and services. It can be seen as an advanced form of contract law, moving beyond the structure of the contracts and more into fields such as clauses, agency and the passing of risk and goods. It is a diverce field, but often centres around legislation such as the Sale of Goods Act 1979.

1. Anti-corruption legislation in the UK: its successes and failures.

A central reason for the rise in corruption in the UK over the past years has been the failure of the government to incorporate regional and international anti-corruption conventions adequately into national legislation. Research suggests that UK companies ascribe to the longstanding tradition of paying bribes. Brides are generally used to supersede national laws and regulations that may be a hindrance for them. Over the years, the response to anti-bribery laws in the UK has been critical due to their complex and ambiguous nature. This study will critically examine UK anti-bribery laws in an attempt to locate problem areas and suggest improvements and reforms. Problems concerning the definition of ‘agent’ and ‘corruption’, as well as the discrepancy between the private and public sector will be focused upon, as well as others. Has the Bribery Act eased problems surrounding previous law or has the situation simply been re-codified?

Suggested Reading

• Johnstone, P & Brown, G 2004. ‘International Controls of Corruption: Recent Responses from the USA and the UK’, Journal of Financial Crime, vol. 11, no. 3.
• Engle, E 2010. ‘I Get by with a Little Help from My Friends? Understanding the UK Anti-Bribery Statute, by Reference to the OECD Convention, and the Foreign Corrupt
• Practices Act’, International Lawyer, vol. 44, no. 3.
• Hawley, S 2003. Turning a Blind Eye: Corruption and the UK Export Credits Guarantee Department, Dorset: Corner House.

2. Consider the circumstances under which the corporate veil can be lifted and analyse how effective the law is in piercing the veil when necessary.

The landmark case of Salomon v Salmon & Co Ltd (1897) requires little description: it is instead suitable to state that from the decision arose the concept of separate corporate personality. The decision of Salomon introduced a variety of new consequences, and the scope and application of the then Companies Act 1862 was properly clarified for the first time. Perhaps most importantly, the House of Lords entrenched the notion that the company exists as a separate personality from its members. Yet, as is usually the case with any far-reaching principle, the courts have been faced with situations in which exceptions to the rule had to be devised. The lifting of the veil has been developed as a practice when it is apparent or suspected that the company veil is being abused or used to conceal fraudulent activities. Yet when will the courts lift the veil and when will they not? This study will examine this issue and attempt to establish general principles in relation to the lifting of the corporate veil. It will be demonstrated that the uncertainty caused by the courts ascription to flexibility is desirable and suitable in light of the complex nature of the company.

Suggested Reading

• Davies, PL 2008. Gower and Davies: Principles of Modern Company Law, 8th edn, London: Sweet and Maxwell.
• Hicks, A & Goo, SH 2004. Cases & Materials on Company Law, 5th edn, New York: Oxford University Press.
• Hannigan, B 2003. Company Law, New York: Oxford University Press.
• Huss, RJ 2001. ‘Revamping Veil Piercing for All Limited Liability Entities: Forcing the Common Law Doctrine into the Statutory Age’, University of Cincinnati Law Review, vol.70, no.136.

3. Given that the Explanatory Notes to the Companies Act 2006 state that in relation to section 33 no change to the existing case law is intended, discuss the controversies, both judicial and academic, surrounding the scope of section 33 Companies Act 2006 and its predecessors.

This study will examine the definition of the company constitution in section 33 of the Companies Act 2006, comparing its former existence in section 20 of the 1929 Companies Act and its application in case law decisions. It is clear that the rules governing which rights can be enforced and by whom under the articles of association are complex, yet has section 33 relieved this confusion or has it simply reworded the problem? The study will ultimately demonstrate that although section 33 may be a mere symbolic restatement of section 20, accompanying case law has been developed to establish, as far as possible, coherent principles in relation the company constitution. Problems of course remain: this is an expected consequence of the codification of such a broad and varied area of the law. It is however vital to recognise that the influence of case law upon the application of the Companies Act is perhaps principally to blame for lingering problems.

Suggested Reading

• Davies, PL 2008. Gower and Davies’ Principles of Modern Company Law, 8th edn, London: Sweet & Maxwell.
• Drury, RR 1986. ‘The Relative Nature of a Shareholder’s Right to Enforce the Company Contract’, Company Law Journal, vol. 12, no. 219.
• Kershaw, D 2009. Company Law in Context: Text and Materials, New York: Oxford University Press.
• Rosser, J & Wareham, R 2010. Tolley’s Company Law Handbook, 18th edn, London: Tolley Publishing.

4. Before the enactment of the Companies Act 2006, the Courts set the standards for directors’ duties of skill and care so low that no director could possibly breach them.

The passing of the Companies Act 2006 was a huge event for the world of company law; its codification of former common law principles vowed to bring simplicity and better regulation. Many hailed its arrival, quoting the need for greater clarity and simplicity, particularly in relation to directors’ duties. This study will critically examine the 2006 Act’s approach to directors’ duties and evaluate whether it has indeed simplified and clarified the law in this area. Has codification proven unnecessarily restrictive or was previous flexibility too vague? Which approach is the most suitable for directors? The duty of care and skill will be particularly focused upon, in terms of the standards it imposes upon directors are too low or too high.

Suggested Reading

• Alcock, A, Birds, J & Gale, S 2007. Companies Act 2006: The New Law, London: Jordan Publishing.
• Cockerill, A & Mendelsohn, J 2007. ‘Directors and the Missing ‘Articles”, Solicitors
  Journal, vol. 152, no. 2.
• Gore-Brown, F 2004. Gore-Brown on Companies, 44th edn, Bristol: Jordan Publishing.
• Parkinson, JE 1993. Corporate Power and Responsibility: Issues in the Theory of Company Law, New York: Oxford University Press.

5. “The extent of the contractual effect of a company’s articles has long been a subject of controversy generating much academic debate, interest and at times consternation.” Provide an overview of the academic debate in relation to the contractual effect of a company’s articles, highlighting specifically where the differences of opinion can be found.

The contractual nature of the company articles has attracted considerable attention, particularly in relation to who is bound by the contract and in respect of what rights. Recent recodification of the company contract in section 33 of the Companies Act 2006 apparently made few changes to the previous section 20 of the 1929 Act and section 14 of the 1985 Act. Yet what is considered today about the contractual effect of the articles? How is this concept approached in case law? This study will explore these issues, with a proposal that the enforceability of the contract between company members will never be entirely erased because certain circumstances require inter-member enforcement of rights. It will ultimately be demonstrated that criticisms aimed at the contractual effect of the articles is misled because the co-existing application of statute and case law has resulted in a flexible, appropriate approach to the matter.

Suggested Reading

• Dignam, A & Lowry, J 2010. Company Law, 6th edn, New York: Oxford University Press.
• Goldberg, G 1972. ‘The Enforcement of Outsider Rights under s 20(1) of the Companies Act 1948’, Modern Law Review, vol. 35, no. 362.
• Sealy, L & Worthington, S 2010. Sealy’s Cases and Materials in Company Law, 9th edn, New York: Oxford University Press.
• Wedderburn, KW 1957. ‘Shareholder Rights and the Rule in Foss v Harbottle’, Company Law Journal, vol. 16, no. 193.

6. To what extent do existing soft and hard law rules on corporate governance redress the problems of director accountability in the UK?

The importance of corporate governance has been pressed to the forefront of company law over the past few years, particularly in relation to the need to promote director accountability. Recent events have targeted problems related to directors; particularly director fraud and directors’ duties. This study will critically examine whether regulations effectively target and alleviate problems related to director accountability. Does the Combined Code’s ‘comply or explain’ approach lack the strictness required to properly govern directors? How can the aim for good corporate governance seek to balance between flexibility and sufficient enforcement? The fact that director fraud has persisted, even escalated over the past few years suggests that improvements need to be made in this area of corporate governance. This study will question how such improvements can be made, if at all.

Suggested Reading

• Jones, M 2011. Creative Accounting, Fraud and International Accounting Scandals, London: Wiley.
• Roe, MJ 1994. Strong Managers, Weak Owners, Princeton: Princeton University Press.
• Kim, K, Nofsinger , JR & Mohr, DJ 2009. Corporate Governance, 3rd edn, Essex: Pearson.
• Solomon, J 2010. Corporate Governance and Accountability, 3rd edn, London: John Wiley.

7. Using cases and Statues, discuss the contention that the dividing line between incompetence and dishonesty is sufficiently clear in relation to sections 213 and 214 of the Insolvency Act 1986.

The recent recession has caused a major increase in the number of corporations that come to an unfortunate end, thereby creating a newfound interest in the law on insolvency. The Insolvency Act 1986 was drafted as a method of allowing exceptions to be made to the corporate veil rule devised by Salomon, thus allowing the corporate veil to be lifted in certain circumstances. Variations between sections 213 and 214 of the Insolvency Act 1986 have sparked debate in terms of whether they recognise the difference between incompetency contained in section 214 and dishonesty as defined in section 213. This study will propose that the distinction between the concepts is not only clear, but difficult to ignore because the scope of the application of both sections is considerably distinct. Moreover, they contain features which render them inherently different in nature, enabling them to distinguish between the seriousness of dishonesty and incompetence. As will be demonstrated, the distinction is clear.

Suggested Reading

• Davies, P 2006. ‘Director’s Creditor-Regarding Duties in Respect of Trading Decisions Taken in the Vicinity of Insolvency’, European Business Organization Law Review, vol. 7, no. 1.
• Hannigan, B 2003. Company Law, New York: Oxford University Press.
• Keay, A 2006. ‘Fraudulent Trading: The Intent to Defraud Element’, Common Law World Review, vol. 35, no. 121.
• Oditah, F 1993. ‘Wrongful Trading’, Company Law, vol. 14, no. 16.

8. Is the Partnership Act outdated to the extent that it needs to be reformed or should it be hailed as an enduring piece of legislation?

The Partnership Act 1890 is commonly described as outdated and unsuitable when observed in light of the number of partnerships currently existing. This study will explore this concept, focusing on the more troublesome provisions of the Act which present the most prominent problems for partnerships. In any case, it has been acknowledged for some time now that the Act, although overall acceptable, is littered with problems when examined in some detail. This study will endeavour to achieve such detail, in a bid to discover whether the Act is outdated or whether its enduring existence is on the contrary a result of its appropriate and flexible scope. Is reform needed? Can problem areas be attributed to the Act’s dating or other elements? These issues will be addressed, along with the proposal that reform is indeed necessary so that the Act may apply to the vast number and variety of partnerships that currently exist.

Suggested Reading

• Banks, RI & Lindley, N 2002. Lindley and Banks on Partnership, 18th edn, London: Sweet and Maxwell.
• Hicks, A & Goo, SH 2004. Cases and Materials on Company law, 5th edition, New York: Oxford University Press.
• Morse, G 2010. Partnership Law, 7th edn, New York: Oxford University Press.
• Travis, P 1999. ‘Opening the Doors to Partnership: Khan v Mia [1998] 1 WLR 477 333’, UQ Law Journal 16, vol. 2, no. 20.

9. The doctrine of capital maintenance creates an unnecessary burden for companies and is no longer needed to protect creditor interests. Discuss.

The core purpose of the doctrine of capital maintenance is to regulate conflicts between creditors and shareholders on the allocation of the company’s capital. The conflict between creditors and shareholders becomes apparent when a company becomes insolvent. However, the law regulates the conflict by imposing legal capital rules during the company’s existence to limit corporate activity so that creditor interests are protected. However, the efficacy and desirability of the doctrine of capital maintenance has been criticised and questioned. This study discusses the claim that the doctrine of capital maintenance creates an unnecessary burden for companies and is no longer needed to protect creditor interests. The function of the doctrine, its application in light of the Companies Act 2006 and its weaknesses will be critically evaluated. Over time, the doctrine has indeed become less important in the financing measures of companies, particularly due to the fact that there exists no minimum share capital for private companies. It will ultimately be argued that the law should shift away from a rule that sets the distributable profit by reference to the legal capital of the company to a more flexible standard which could be applied to the specific case.

Suggested Reading

• Armour, J 2000. ‘Share Capital and Creditors Protection: Efficient Rules for a Modern Company Law’, Modern Law Review, vol. 63, no. 355.
• Davies, P 2010. Introduction to Company Law, 2nd edn, New York: Oxford University Press.
• Ferran, E 1999. ‘Creditors’ Interests and ‘Core’ Company Law’, Company Law, vol. 20, no. 314.
• Sealy, L & Worthington, S 2010. Sealy’s Cases & Materials on Company Law, 9th edn, New York: Oxford University Press.

10. Critically examine the extent to which section 51 Companies Act 2006 has clarified the law relating to pre-incorporation contracts.

When a new business is in the process of being set up, the need for a promoter is considered to be an essential element. It is not uncommon for contract negotiations to take place before the company has become fully formed, yet whether contracting parties are fully aware of this is not always clear. This study will examine section 51 of the Companies Act 2006, and critically evaluate how it applies to and affects promoters and companies in relation to pre-incorporation contracts. It will ultimately be concluded that section 51 eases problems posed by previous law and increases the security of transactions for third parties.

Suggested Reading

• Davies, P 2010. Introduction to Company Law, 2nd edn, New York: Oxford University Press.
• Sealy, L & Worthington, S 2010. Sealy’s Cases & Materials on Company Law, 9th edn, New York: Oxford University Press.
• Hannigan, B 2003. Company Law, New York: Oxford University Press.