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ACCA LW公司法：Alteration of articles
文章来源：ACCA官网
发布时间：2021-08-10 10:45
阅读：1055次
Relevant to LW-ENG and LW-GLO
This second article on the Companies Act 2006(CA 2006)deals with the new provisions of the Act as they relate to articles of association.
As was stated in the previous article(see'Related links'),in future,a company’s memorandum of association will be a very simple document of purely historic significance,providing evidence of the intention to form a company.
Section 17 of the CA 2006 specifically states that references in the Act to a company’s constitution include the company’s articles,resolutions,and agreements:it makes no mention of the memorandum of association.The articles of association are consequently to be recognised as the main element of a company’s constitution and,in effect,they are the rules which govern a company’s internal affairs and matters such as the allocation of powers between the members of a company and its directors.Companies are free to make such rules about their internal affairs as they think appropriate,subject to the proviso that any such rules must not contain anything that is either contrary to the general law,or the specific provisions of the Act.
As before,the articles of association form a statutory contract between the company and its members,and between each of them(now s33)and the previous common law will continue to be applied as appropriate.
Section 18 continues the requirement that all registered companies must have articles,and Section 19 gives the Secretary of State the power to prescribe‘default’model articles for the different types of company and these regulations will apply to companies where they have not registered any articles of their own,or have not specifically excluded the operation of the model article in question.【点击免费下载>>>更多ACCA学习相关资料】
Under the previous legislation,the Secretary of State was only able to prescribe default model articles for companies limited by shares;under the new provisions,private companies limited by guarantee will have the option of not registering articles but relying on the model articles for their regulation.As before,the articles must be contained in a single document and must be divided into consecutively numbered paragraphs(s18(3)).
ALTERATION OF ARTICLES
Section 21(1)restates previous provisions and permits a company to alter its articles by special resolution.The common law rules relating to such alterations still apply.
ENTRENCHMENT OF ARTICLES
The previous legislation allowed companies to entrench certain elements of their constitution by putting them in their memoranda and stating that they could not be altered.Section 22 of the CA 2006 replaces that practice,but allows its effective continuation by permitting companies’articles to provide that certain provisions may be amended or repealed only if certain conditions are met,and that those conditions are more restrictive than would apply in the case of a special resolution.
Such a provision,referred to as a‘provision for entrenchment’,may only be made in the company’s articles on formation,or by an amendment of the company’s articles agreed to by all members of the company.However,any such provision for entrenchment does not prevent alteration of the company’s articles by agreement of all members of the company,or by order of a court or other authority which has power to alter the company’s articles.
Nor,of course,does such a provision affect the power of a court to alter a company’s articles.As a result of the above provisions,companies will not be permitted to state,in their articles,that an entrenched provision can never be repealed or amended.
Section 23 introduces a new requirement for a‘statement of compliance’–a notice of the existence of any entrenchment to be made known to the companies’registrar.Similarly,notice is also required if the company alters its articles to remove a provision for entrenchment,or if the articles are altered by order of a court or other authority to remove a provision for entrenchment or any other restriction on the power of the company to amend its articles.
The declared purpose of Sections 23 and 24 is to ensure that the registrar,and any person searching the public register,is made aware of the articles that contain entrenching provisions and that special rules therefore apply to the company’s articles.
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