An Analysis of the Use of Equitable Principles, Doctrines and Remedies in Company Law: The Case for Equity’s Centrality

This thesis presents the case for Equity’s centrality in company law. This is an important topic because Equity’s role in the commercial context has been the subject of controversy and ongoing debate among judges, practitioners, and scholars. This thesis contributes to this debate through looking at the matter from a company law-focused perspective. The questions addressed in this thesis relate to how Equity operates in company law on a macro- and a micro-level. Here, the words “macro” and “micro” are not used in the economic sense; they are used in the sense that one part of the analysis, macro, focuses on the forest, whereas the other part of the analysis, micro, focuses on the trees. On a macro-level, this thesis explores the relationship between Equity and company law. This involves investigating the nature of Equity jurisprudence (chapter two), how Equity became a source of company law (chapter three), how it interacts with company law statutes (chapter four), and, more importantly, what characteristics are exhibited by Equity from the way it operates in company law. On a micro-level, this thesis explores how Equity operates within three areas of company law: corporate management and control (chapter five), corporate finance law (chapter six), and corporate insolvency law (chapter seven). For each area, this thesis examines the operation of the characteristics of Equity, which were extracted from the macro-level analysis, to reveal how Equity responds to the key issues within the said areas, and to uncover the challenges which Equity faces in its operation in company law. In the face of the controversies surrounding Equity’s role in the commercial context, this thesis argues that Equity plays a very important role in company law. Equity’s characteristics have enabled it to not only contribute to the evolution and enrichment of company law, but to also provide important solutions to some of the key issues which have arisen within different areas of company law. There are, however, certain challenges which Equity faces in its operation in company law. It is demonstrated that there are certain important areas where reforms are needed so that Equity can be more effective in terms of addressing the challenges. The need for reform in those areas does not, however, negate the overall significance of Equity’s role in company law. The negatives of Equitable intervention are broadly outweighed by the positives (the former of course can be ameliorated through reforms). This thesis therefore argues for the use of Equity, and the recognition of its value and potential, to deal with new developments in the corporate world so as to aid the evolution of company law in the future. In making this argument, this thesis not only contributes to the debate on Equity’s role within the commercial context through providing a company law-focused perspective, but it also challenges some of the broader arguments and assumptions which have been made against Equity’s presence within the commercial world