The Gazette 1974

certain acts done by or against a company within six months before the commencement of its winding-up are deemed to be a fraudulent preference of its creditors. Under Article 4 of the proposed Uniform Law, this period of six months would be extended to one year. By virtue of Section 250 of the Companies Act, an Order of a foreign Court may be enforced by the High Court in the same manner as if the Order had been made by the High Court itself. Our High Court must, however, make a specific Order to give effect to this enforcement. The provisions in Article 50 and 43 of the draft Convention envisage that there will be a change in that situation, so that judgements relating to the institution and prosecution of bankruptcy proceedings would take effect, as of right, and would obviate the necessity for the making of a special order in the con- tracting State in which they are being enforced. This would be an example of the effect of the unity and universality of bankruptcies within the Community. While the provisions of the draft Bankruptcy Conven- tion are not yet in final form, I think I have said enough to indicate that the Convention, when it has eventually been ratified by the member States of the EEC, will have a considerable effect on our law in relation to the winding-up of companies, as well as on our bankruptcy law generally. In any review of company law at national level we must, of course, be mindful of harmonisation proposals at EEC level. It would be wasteful and time consuming to indulge in reforms which later on might need to be abolished or substantially revised in the light of EEC legislation. On the other hand EEC proposals and har- monisation are generally in the form of minimum re- quirements and individual member States, if the situ- ation demands it, are free to take legislative measures which go beyond what EEC proposals envisage. But, be it at national or international level, making the right decisions in the reform or harmonisation of company law calls for continued consultation and de- bate especially between those who, through experience of the practical aspects of the law, are best in the posi- tion to suggest remedies for the inadequacies of the law which the passage of time reveals. The Hon. Mr. Justice Kenny also spoke. COLLINS & KENNEDY Solicitors Skibbereen, Co. Cork require an

draft Fifth Directive on company law contains pro- posals for a three-tier structure of management, nam- ely, the members in general meeting, the Management Board and a Supervisory Board which oversees the acti- vities of the Management Board. Provision is made for w orker participation in the Supervisory Board in com- panies employing over 500 persons. It may well be that fhis kind of arrangement may not be very appropriate ln the Irish context. While there now seems to be wide- spread support for the concept of worker participation ln this country it is important that there should be sufficient latitude in EEC proposals so that the concept Ca n be adopted and implemented in a manner best su ited to our way of life. Hraft Bankruptcy Convention Mention of harmonisation would be incomplete with- °ut reference to the draft Bankruptcy Convention. I should mention—and this is very important in the Irish context—that bankruptcy in Europe covers the insol- vency of companies as well as the insolvency of indivi- duals. The distinction that we make between the bank- ruptcy of a person and the winding-up of an insolvent company is unknown on the Continent. Consequently, ta e draft Convention on Bankruptcy deals with the Winding-up of companies as well as with bankruptcy individuals and the administration of insolvent states of deceased persons. The experts who prepared the draft Bankruptcy Con- d i t i on recognised at an early stage that a complete unification or harmonisation of the relevant legislation member States would be impracticable. The draft Convention does not aim at creating a "European" type bankruptcy nor does it seek to modify in principle ' le basic rules of internal law. It does aim, however, a t establishing the principle of the unity and univer- sality of bankruptcies, so that there will be only one Ja nkruptcy, recognisable throughout the Community a nd it proposes that the bankruptcy will apply to all the Property of the bankrupt no matter where it is located Wlt hin the Community. (Adoption of the principle of the unity and univer- s alitv of bankruptcy necessitates the adoption of stan- dard rules of jurisdiction. The draft Convention incor- porates standard rules accordingly, by virtue of which Jurisdiction in any particular case would be granted to u e Courts of a particular State. The draft Convention a lso proposes standard rules to resolve conflicts of laws 'P relation to matters within the scope of the Conven- tlo n. For those cases in which it has not been possible to Resolve satisfactorily the conflicts of laws, the draft Convention proposes a Uniform Law to which all the Member States will be expected to adhere. To illustrate the effect of the draft Convention, I u°uld like to give examples of provisions which will a ftect our company law. The Companies Act, 1963, a t Sections 297 and 298, refers to the case where, in the c °urse of the winding-up of a company, it appears that P er sons were concerned in the fraudulent trading of the c °mpany ) and to the case where directors have mis- a Pplied company funds, and provides that the Court J^V take the persons concerned personally responsible the monies involved. Article 1 of the Uniform Law in P e draft Convention goes further, however, and pro- v e s that persons who have wrongfully used the assets ^ a bankrupt company may themselves be declared aa nkrupt. This would be a new provision in our law. By virtue of Section 286 of the Companies Act, 1963,

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