ACCA F4(GLO) 2010年6月 真题答案

AnswersFundamentals Level – Skills Module, Paper F4 (GLO)Corporate and Business Law (Global) June 2010 Answers In relation to aspects of business law the default law and cases refer to the United Kingdom, however, relevant law from other jurisdictions will be credited where appropriate.1 (a)The I nternational Chamber of Commerce (I CC), in its own words is ‘the voice of world business championing the globaleconomy as a force for economic growth, job creation and prosperity.’It was established in 1919 and although it is a worldwide organisation with distinct national committees, its international secretariat is based in Paris.According to its constitution the activities of the ICC, whether of a policy or technical nature, aim:– to promote international trade, services and investment, while eliminating obstacles and distortions to international commerce;– to promote a market economy system based on the principle of free and fair competition among business enterprises;– to foster the economic growth of developed and developing countries alike, particularly with a view to better integrate all countries into the world economy.It operates at both a national and a supranational level. Thus it pursues its aims by ascertaining the views of corporations, companies, organisations, firms and individuals involved in international trade and related business operations and voicing those views to relevant government and intergovernmental institutions. Membership of the ICC is open to corporations and companies in all sectors; professional associations; business and employers federations; law fi rms and consultancies; chambers of commerce; and individuals involved in international business.ICC activities cover a broad spectrum, from arbitration and dispute resolution to making the case for open trade and the market economy system, business self-regulation, fi ghting corruption or combating commercial crime.Amongst its most prominent activities are the following:– Arbitration under the rules of the ICC International Court of Arbitration. The International Court of Arbitration, is the longest established ICC institution and claims to be the world’s leading body for resolving international commercial disputes byarbitration.– ICC Incoterms are standard international trade defi nitions used every day in countless thousands of contracts.– ICC’s Uniform Customs and Practice for Documentary Credits (UCP 500). A supplement to UCP 500, called the eUCP, was added in 2002 to deal with the presentation of all electronic or part electronic documents.The ICC, however, is also involved in the fi ght against commercial crime and to that end it established three London-based services to combat such activity. These organisations are: the International Maritime Bureau, dealing with all types of maritime crime; the Counterfeiting Intelligence Bureau; and the Financial Investigation Bureau. A cyber crime unit was added in 1998.An umbrella organisation, ICC Commercial Crime Services, coordinates the activities of the specialised anti-crime services.(b)The World T rade Organisation was created in 1995, as the re-embodiment of the General Agreement on T ariffs and T rade(GATT) which had provided the rules for the system of international trade since 1948. GATT evolved through several rounds of negotiations, with the last one, the Uruguay Round which lasted from 1986 to 1994 leading to the agreement to the creation of the WTO. Whereas GATT had mainly dealt with trade in goods, the WTO and its agreements now cover trade in services, and in traded inventions, creations and intellectual property. The WTO has nearly 150 members, accounting for over 97% of world trade.The WTO’s overriding purpose is to assist the free fl ow of trade through the removal of obstacles to such trade. It also endeavours to ensure that individuals, companies and governments know what the trade rules are around the world, thus giving them the confi dence that there will be no sudden changes of policy.The WTO seeks to achieve these purposes by:tradeagreements– Administering– Acting as a forum for trade negotiationsdisputestrade– Settling– Reviewing national trade policies– Assisting developing countries in trade policy issues, through technical assistance and training programmes– Cooperating with other international organisations.The WTO Agreements, covering goods, services and intellectual property, spell out the principles of liberalisation, and the limited permitted exceptions to that process are the result of negotiations between the members. The agreements include individual countries’ commitments to lower customs tariffs and other trade barriers, and to open and keep open services markets. They set procedures for settling disputes. They prescribe special treatment for developing countries. They require governments to make their trade policies transparent by notifying the WTO about laws in force and measures adopted, and through regular reports by the secretariat on countries’ trade policies. The current set of agreements is the outcome of the 1986–1994 Uruguay Round negotiations, which included a major revision of the original General Agreement on T ariffs and T rade (GATT). Through these agreements, WTO members engage to operate a non-discriminatory trading system that spellsout their rights and their obligations. Each country receives guarantees that its exports will be treated fairly and consistently in other countries’ markets. Each promises to do the same for imports into its own market. The system does, however, allow a degree of latitude to developing countries in implementing their commitments.All WTO members must undergo periodic scrutiny, each review containing reports by the country concerned and the WTO Secretariat.2 (a)Article 7 of the UNCITRAL Model Law on International Commercial Arbitration provides that an arbitration agreement is ‘anagreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defi ned legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. It also states that: ‘the arbitration agreement shall be in writing’.Consequently if such an agreement is not in writing the requirement to enter arbitration in relation to any dispute arising cannot be enforced under the model law.The model law goes on to explain that an agreement is in writing if it is contained:(i) in a document signed by the parties or(ii) in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement,(iii) in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another.The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.’As the explanatory notes to the Model Law, provided by the UNCITRAL Secretariat, explain, Article 7(1) recognises the validity and effect of a commitment by the parties to submit to arbitration an existing dispute or a future dispute. This provision is signifi cant, as the latter type of agreement is not given full effect under certain national laws. While oral arbitration agreements are found in practice and are recognised by some national laws, such as the English law, Article 7(2) follows the 1958 New York Convention in requiring written form before arbitration is enforced. It also widens and clarifi es the defi nition of written form of Article 11(2) of the New York Convention by adding ‘telex or other means of telecommunication which provide a record of the agreement’, and by including the submission-type situation of ‘an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another’, and by providing that ‘the reference in a contract to a document’ (e.g. general conditions) ‘containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract’.(b)Once an arbitration panel has made its decision and has declared that recompense should be made to one of the parties, thenthe issues of enforcing that award arises. Although the arbitration panel itself has no powers to enforce its award, nonetheless its decision is binding on the parties and may be enforced through the courts. The UNCITRAL Model Law on International Commercial Arbitration does not lay down procedural details of recognition and enforcement, but merely sets certain conditions for obtaining enforcement. These are application in writing, accompanied by the award and the arbitration agreement.Article 35 of the Model Law provides that any arbitration award made under its auspices, irrespective of the country in which it was made, shall be recognised as binding and, is to be enforced in the competent court within the state in which it is sought to be implemented. The party seeking to enforce the award must provide the authenticated original award or a certifi ed copy of it, plus either the original, or a certifi ed copy of, the arbitration agreement.Article 36 sets out the limited grounds on which enforcement may be refused by the court. These relate to either:(i) the way the arbitration hearing was conducted, or(ii) the fact that the subject-matter of the dispute is not capable of settlement by arbitration under the law of the state in which enforcement is being sought or alternatively that the recognition or enforcement of the award would be contrary to thepublic policy of that state.3 (a)How offers can be accepted is provided for in articles 18 and 19 of the UN Convention on Contracts for the InternationalSale of Goods. It states, fi rstly, that acceptance will have taken place where the person receiving the offer has indicated their agreement to the offer. Thus if the offeree writes or speaks to the offeror, telling them that they accept the terms of the offer they will be bound by the terms of the contract. However, a reply to an offer, which, although it claims to be an acceptance, contains additions or changes to the terms of the original offer, does not amount to an acceptance. Any such alteration will be considered as a rejection of the original offer and will be treated as counter-offer, which may or may not be accepted by the original offeror. However, if the changes in the terms do not materially alter the terms of the offer then the reply will count as an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or despatches a notice to that effect.Secondly, article 18 states that the offeree may be also be seen as accepting the offer as a result of their conduct, such as acting on it by despatching goods or paying the price. However, the article is quite clear that silence or inactivity does not in itself amount to acceptance.(b) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. Where a time period hasbeen fi xed for acceptance, any acceptance is not effective if the indication of assent does not reach the offeror within that period of time. If no time period is fi xed, then the acceptance must reach the offeror within a reasonable time, taking into account the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.However, if, the offeree can indicate their assent by performing an act, without notice to the offeror, the acceptance is effectiveat the moment the act is performed, provided it is done within any period of time laid down by the offeror. Article 20 states that where the offeror has fi xed a period of time for acceptance in either a telegram or a letter, that period begins to run from the moment the telegram is handed in for despatch or from the date shown on the letter. If no date is shown on the letter, the time runs from the date shown on the envelope. A period of time for acceptance fi xed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree. 4Incoterms are frequently to be found in international contracts, and they seek to provide a common set of rules for the most often used international terms of trade with the aim of removing confusion over their interpretation.(a) EXW ‘Ex works’ means that the seller fulfi ls his obligation to deliver when he has made the goods available at his premises (i.e.works,factory, warehouse, etc) to the buyer. This means that the seller is not responsible for loading the goods on to the buyer’s vehicle or for clearing the goods for export, unless otherwise agreed. As a consequence of this term the buyer bears all the costs and risks involved in taking the goods from the seller’s premises to their fi nal destination. The ex works term thus represents the minimum obligation for the seller. However, if the parties wish the seller to assume responsibility for the loading of the goods on departure such a term should be expressly stated in the contract of sale. It follows that this term should not be used where the buyer themselves cannot carry out the necessary export formalities, either directly or indirectly.(b) FOBFree, On Board (named port of shipment) Some Incoterms are specifi c to particular modes of transport, such as shipping and the FOB term is one of those. The initialsstand for ‘free on board’ and mean that the seller is considered to have delivered the goods when they pass the ship’s rail at the named port of shipment. This means that the seller has to clear the goods for export, but the buyer has to bear all costs and risks of loss or damage to the goods from the point that the goods are on the ship. However, as a result of the specifi c mention of the ship’s rails, it follows that this term can only be used for sea or inland waterway transport.(c) C I FCost, Insurance and Freight (named port of destination)‘Cost, insurance and freight’ means that the seller delivers the goods when they pass the ship’s rail in the port of shipment. The seller must pay the costs and freight necessary to bring the goods to the named port of destination but the risk of loss ofor damage to the goods, as well as any additional costs due to events occurring after the time of delivery, are transferred from the seller to the buyer. The CIF term requires the seller to clear the goods for export.But more importantly the seller also has to arrange marine insurance against the buyer’s risk of loss of or damage to the goods during the carriage. The seller, therefore, contracts for insurance and pays the insurance premium. The seller, however, is only required to obtain minimum insurance cover for the goods. If the buyer wishes to have greater protection then either they must agree that expressly with the seller, as a term of the contract, or they must arrange any extra insurance on their own behalf.As with FOB above the CIF term can only be used for sea and inland waterway transport. 5 Section 7 Companies Act 2006 (CA) sets out the method for forming a company, which is that one or more persons must subscribetheir name to a memorandum of association and comply with the requirements of the provisions of the Act as to registration. Under s.9, the memorandum of association must be submitted to the companies’ registrar together with an application for registration , which in turn lists other documents that must be submitted. As a result the following documents require to be submitted.(a) The memorandum of associationAlthough the 2006 Act retains the previous requirement for individuals wishing to form a company to subscribe their names toa memorandum of association it nonetheless signifi cantly reduces the importance of the memorandum and as a consequence it is no longer possible to amend or update the memorandum of a company formed under the 2006 Act. Nonetheless the memorandum of association, which must be in the prescribed form, remains an important document to the extent that, as required by s.8, it evidences the intention of the subscribers to the memorandum to form a company and become members of that company on formation. Also in relation to a company limited by shares, the memorandum also provides evidence of the members’ agreement to take at least one share each in the company.(b) Application for registration Although the 2006 Act only requires the memorandum and application for registration to be submitted, s.9 sets out otherdocuments as well as the specifi c information that must be delivered to the registrar when an application for registration is made.Section 9 provides that in all cases the application for registration must state:– the company’s proposed name;– whether the company’s registered offi ce is to be situated in England and Wales (or Wales), in Scotland or in Northern Ireland;– a statement of the intended address of the company’s registered office (that is, its postal address as opposed to the preceding statement confi rming the jurisdiction in which the company’s registered offi ce is to be situated);– whether the liability of the company’s members is to be limited and if so whether it is to be limited by shares or by guarantee;– whether the company is to be a private or a public company.A statement of capital and initial shareholdings(c)This document is required where the company is to have a share capital. Alternatively a statement of guarantee is required where that is not the case (CA 2006 ss.10 & 11 set out the detailed provisions in these regards).A statement of the company’s proposed offi cers(d)Section 12 explains that this requirement relates to:– any person/persons who are, to be the fi rst director or directors of the company– the person/s who is/are to be the fi rst secretary.(e)A copy of any proposed articlesAs the model articles apply by default this requirement operates to the extent that the company does not intend to use the model articles.(f) A statement of complianceThis requirement to the effect that the rules relating to registration have been followed is as set out in s.13. Such a statement does not need to be witnessed and may be made in either paper or electronic form. Under s.1068, the registrar is authorised to specify the rules relating to, and who may make, such a statement. Section 1112 makes it a criminal offence to make a false statement of compliance, as is the case in relation to all documents delivered to, or statements made to the registrar.The appropriate fee must accompany the foregoing documents and once the registrar is satisfied that the requirements of the Act have been met, he shall issue a certificate that the company is duly incorporated. As previously, once issued the certificate is conclusive evidence that the requirements of this Act as to registration have been complied with and that the company is duly registered under the Act.6Companies ordinarily raise the money they need to finance their operations through the issue of share capital, but it is equally common for companies to raise additional capital through borrowing.(a)DebenturesA debenture is a document, which acknowledges the fact that a company has borrowed money. The use of the term debenture,however, has been extended to cover the loan itself. A debenture may be issued to a single creditor or to a large number of people, in which case each of the creditors has a proportionate claim against the total ‘debenture stock’.As creditors of the company, debenture holders receive interest on their loans and are entitled to receive payment whether the company is profi table or not. As regards repayment, debts rank in order of creation, so earlier debentures have to be paid before those created later. Where debentures are issued as part of a series, it is usual for a pari passu clause to be included in the document creating the debt, with the effect that all of the loans made within the series rank equally with regard to repayment.Debentures, which have no security are referred to as ‘unsecured loan stock’. It is usual, however, for debentures to provide security for the amount loaned. Security means that if the company is wound up, the secured creditor will have priority in terms of repayment over any unsecured creditor. There are two types of security for company loans: fi xed charges and fl oating charges.(b)Fixed chargeIn this situation a specifi c asset of the company is made subject to a charge in order to secure a debt. Once the asset is subject to the fi xed charge the company cannot dispose of it without the consent of the debenture holders. The asset most commonly subject to fi xed charges is land, although any other long-term capital asset may also be charged. It would not be appropriate, however, to give a fi xed charge against stock-in-trade, as the company would be prevented from freely dealing with it without the prior approval of the debenture holders. Such a situation would obviously prevent the company from carrying on its day-to-day business. If the company fails to honour the commitments set out in the document creating the debenture, such as meeting its interest payments, the debenture holders can appoint a receiver who will if necessary sell the asset charged to recover the money owed. If the value of the asset that is subject to the charge is greater than the debt against which it is charged then the excess goes to pay off the rest of the company’s debts. If it is less than the value of the debt secured then the debenture holders will become unsecured creditors for the amount remaining outstanding.(c) Floating chargeThis category of charge is peculiar to companies and represents one of the advantages of the company over other businessforms. The fl oating charge is most commonly made in relation to the ‘undertaking and assets’ of a company and does not attach to any specifi c property whilst the company is meeting its requirements as stated in the debenture document. The security is provided by all the property owned by the company, some of which may be continuously changing, such as stock-in-trade. Thus, in contrast to the fi xed charge, the use of the fl oating charge permits the company to deal with its property without the need to seek the approval of the debenture holders. However, if the company commits some act of default, such as not meeting its interest payments, or going into liquidation, the fl oating charge is said to crystallise. The value of the assets subject to the charge may be realised in order to pay the debt owed to the fl oating charge holder, although the Enterprise Act 2002 introduced a new procedure to limit the powers of fl oating charge holders to appoint administrative receivers and requires them to make use of the general administration procedure.All charges, including both fi xed and fl oating, have to be registered with the Companies Registry within 21 days of their creation. Failure to register the charge as required has the effect of making the charge void, i.e. ineffective, against any other creditor, or the liquidator of the company. The charge, however, remains valid against the company, which means in effect that the holder of the charge loses their priority as against other company creditors. In addition to registration at the Companies Registry, companies are required to maintain a register of all charges on their property. Although a failure to comply with this requirement constitutes an offence, it does not invalidate the charge.In relation to properly registered charges of the same type, they take priority according to their date of creation. However, as regards charges of different types, a fi xed charge takes priority over a fl oating charge even though it was created after it. 7 This question requires candidates to consider the important role of the company secretary in relation to the operation of companies.The corporate governance structure specifi es the distribution of rights and responsibilities among different participants in the corporation, such as, the board, managers, shareholders and other stakeholders, and spells out the rules and procedures for making decisions on corporate affairs. The essence of corporate governance is to ensure that companies are properly run and that its offi cers are accountable and subject to control. Whilst it is usual to focus on directors when considering the idea of corporate governance, it should be remembered that company secretaries also have an important function to perform in relation to the proper conduct of company affairs.Every public company is required to have a secretary, who is one of the company’s offi cers for the purposes of the Companies Act 2006 and who, in addition, may, or may not, be a director of the company. Private companies are no longer required to appoint company secretaries, although they still can do so if they wish. Appoint m entSection 1173 Companies Act (CA) 2006 includes the company secretary amongst the offi cers of a company. Every public companymust have a company secretary and s.273 of the CA requires that the directors of a public company must ensure that the company secretary has the requisite knowledge and experience to discharge their functions. Section 273(2) & (3) sets out the following list of alternative specifi c minimum qualifi cations, which a secretary to a public limited company must have:–they must have held offi ce as a company secretary in a public company for three of the fi ve years preceding their appointment to their new position; –they must be a member of one of a list of recognised professional accountancy bodies, including ACCA; –they must be a solicitor or barrister or advocate within the UK;– they must have held some other position, or be a member of such other body, as appears to the directors of the company tomake them capable of acting as company secretary.Duties The duties of company secretaries are set by the board of directors and therefore vary from company to company, but as an offi cer ofthe company, they will be responsible for ensuring that the company complies with its statutory obligations. The following are some of the most important duties undertaken by company secretaries:–to ensure that the necessary registers required to be kept by the Companies Acts are established and properly maintained; –to ensure that all returns required to be lodged with the Companies Registry are prepared and fi led within the appropriate time limits; –to organise and attend meetings of the shareholders and directors; –to ensure that the company’s books of accounts are kept in accordance with the Companies Acts and that the annual accounts and reports are prepared in the form and at the time required by the Acts; –to be aware of all the statutory requirements placed on the company’s activities and to ensure that the company complies with them;– to sign such documents as require their signature under the Companies Acts.With specifi c regard to the Combined Code on Corporate Governance company secretaries are required:– to ensure the fl ow of necessary information within the board of directors and its committees;– to ensure that new board members are properly inducted into their positions;– to ensure the professional development of company directors; – to provide advice and guidance to the board and its chair on all matters relating to corporate governance.。