DIRECTORS' DUTIES TO CREDITORS ON OR NEAR INSOLVENCY AND DUTY OF CARE IN THE COMMONWEALTH CARIBBEAN: SHOULD THE PEOPLES DECISION BE ADOPTED?

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Abstract:

The PEOPLES decision not only departs from the common law but goes further to state that the statutory oppression remedy under the CBCA is the appropriate vehicle for creditors to sue directors, not for a breach of duty, but for oppressive or unfairly prejudicial conduct towards them or conduct which unfairly disregards their interests. The decision, however, may be hailed in the Commonwealth Caribbean as settling the debate as to whether the statutory fiduciary duty is a codification of the common law fiduciary duty and whether the standard of the duty of care, diligence and skill is objective/subjective or purely objective. This article seeks to explore the issue as to whether the “reformed territories” ought to follow the Supreme Court of Canada decision or to follow the English common law position. Special reference will be made to the Jamaica Companies Act, which differs slightly in its' approach to the oppression remedy and the St. Christopher and Nevis (St. Kitts) Companies Act which has no similar oppression remedy.

Document Type: Research Article

Publication date: January 1, 2006

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