Dublin Corporate and Commercial 2022 Wrap Up

Published 18 enero 2023

Welcome to the DAC Beachcroft Dublin Corporate and Commercial Wrap Up.

2022 was a busy year for corporate governance developments, with updates emerging from the High Court, the European Court of Justice and the European Parliament.

We have prepared guidance and commentary on the latest developments in the Irish corporate and commercial sphere together with some helpful updates which we hope will be of interest to you.

For more information or assistance please contact please contact a member of our Corporate and Commercial team.

The Arm of Justice Lifts the Corporate Veil – A Warning for Passive Directors

In the exceptional case of Powers -v- Greymountain Management Ltd (in liquidation) [2022] IEHC 599 the High Court has lifted the corporate veil in finding two Irish directors and two shadow directors personally liable in a multinational fraud case. For the first time in Irish company law Twomey J found that in circumstances involving corporate fraud and the syphoning off of funds, justice demands that the protection of incorporation should not operate as a shield to protect directors from personal liability.

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The Arm of Justice Lifts the Corporate Veil – Part II: A Warning for Shadow Directors

In part two of our update on the exceptional case of Powers -v- Greymountain Management Ltd (in liquidation) [2022] IEHC 599, we discuss the High Court’s decision to lift the corporate veil in finding two shadow directors personally liable in a multinational fraud case.

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Corporate Governance Update: High Court confirms that the fiduciary duties of directors of semi-state companies should not be encroached by Ministerial interventions

The High Court has helpfully clarified the position in relation to the duties of directors acting under Ministerial appointment in semi-state companies.

In a judgment delivered in the recent case of Keating v Shannon Foynes Port Company [2022] IEHC 505 (the “Keating case”), the High Court considered the breadth and scope of directors’ fiduciary duties in the context of a commercial semi-state company and, in particular, the extent to which Ministerial interventions should influence the directors of a company in the exercise of their statutory obligations under the Companies Act 2014 (the “2014 Act”).

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Access to RBO suspended

In a recent landmark judgement in Joined Cases C-37/20 (Luxembourg Business Registers) and C-601/20 (Sovim), the European Court of Justice (the “ECJ”) has ruled that certain provisions in the anti-money-laundering directive (Directive (EU) 2015/849) (the “AML Directive”) - whereby information on the beneficial ownership of companies incorporated in Member States is accessible in all cases to any member of the general public - are invalid.

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Irish company law update on the continuation of certain interim measures into 2023

The Companies (Miscellaneous Provisions) (Covid-19) Act 2020 (the “Act”) was enacted in order to help companies and societies comply with statutory obligations in circumstances where the pandemic was affecting the ability of businesses to operate normally.

A further extension of two of the temporary measures introduced by the Act has been announced by the Minister for Trade Promotion, Company Regulation and Digital, Dara Calleary TD.

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Consumer Rights Bill 2022: Enhanced Consumer Protection – Advanced Trader Compliance

The Consumer Rights Bill 2022 (the “Bill”) was initiated in Dáil Éireann on the 22 April 2022, and is well on its way to entering the business-to-consumer fray. The Bill proposes an upheaval in the Irish consumer protection legal landscape, and was accordingly branded as “the biggest overhaul of consumer rights law in 40 years” by Minister of State Robert Troy.

The purpose of the Bill is to consolidate and modernise consumer rights legislation for the sale of goods and supply of services, ensuring that the updated legislation is more in keeping with the digital age. In modernising the current legislation, the Bill aims to enhance consumer rights, protections and remedies.

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Irish company law update: Think of the creditors

It is well established under Irish case law that company directors who are aware of the company’s insolvency have a duty to have regard to the interests of the company’s creditors. However, until recently, this duty was never provided for in Irish companies legislation. Furthermore, Irish court judgments concerning the common law duty to have regard to the interests of creditors did not clarify whether the duty is owed to the company (as is the usual position as regards directors’ duties) or to the creditors.

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