School of Law

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Professor Andrew Keay's Publications

Books

  • Keay AR, McPherson and Keay's Law of Company Liquidation, fourth ([n.pub.], 2017)

  • Insolvency Legislation : Annotations and Commentary, ed. by Keay AR and Doyle, L, Sixth (Bristol: LexisNexis, 2017)

  • Keay AR, Walton, P, Insolvency Law : Corporate and Personal, Fourth (Bristol: LexisNexis, 2017)

  • McCormack G, Keay A, Brown S, European Insolvency Law Reform and Harmonization (Edward Elgar Publishing, 2017)

    Reform and Harmonization Gerard McCormack, Andrew Keay, Sarah Brown ... of ways; while there are similarities in the rules applying to two or more regimes, there are no two avoidance regimes in these legal systems that are identical.

  • Keay AR, Directors' Duties, Third (Bristol: LexisNexis, 2016)

  • Doyle L, Keay AR, Insolvency Legislation : Annotations and Commentary, 5th ed, ed. by Keay AR ([n.pub.], 2016)

  • Keay A, Board Accountability in Corporate Governance (Routledge, 2015)

    As an in depth study of a key element within the exercise of authority and management in corporate entities, this book will be of great use and interest to researchers and students of corporate governance, business and management, and ...

  • Keay AR, Doyle L, Insolvency Legislation : Annotations and Commentary, Fourth edition (Bristol: Jordan Publishing, 2014), 23-1976

  • Keay AR, Directors' Duties, Second edition (Bristol: Jordan Publishing, 2014), 1-557

  • Keay AR, McPherson's Law of Company Liquidation, Third edition (London: Sweet amd Maxwell, 2013), 1-1364

  • Keay AR, The Enlightened Shareholder Value Principle and Corporate Governance, Routledge Research in Corporate Law (Abingdon and New York: Routledge, 2013), 1-303

  • Keay AR, Walton P, Insolvency Law : Corporate and Personal, Third (Jordan Publishing, 2012), 3-730

  • Keay A, The Corporate Objective, Corporations, Globalisation and the Law (Cheltenham: Edward Elgar Publishing, 2011), 1-346

    Analysing in depth the existing theories which seek to explain the corporate objective, this book will appeal to academics in corporate law and corporate ...

  • Keay A, Doyle L, Insolvency Legislation : Annotations and Commentary, 3rd (Bristol: Jordan Publishing, 2009), 1-1756

  • Keay A, McPherson's Law of Company Liquidation, 2nd (London: Sweet and Maxwell, 2009), v-1125

  • Keay A, Directors' Duties (Bristol: Jordan Publishing, 2009), 1-476

  • Keay AR, Walton P, Insolvency Law : Corporate and Personal (Jordan Publishing, 2008), Second, 1-664

  • Keay AR, Company Directors' Responsibilities to Creditors (Routledge-Cavendish, 2007), xxviii,393p

  • Keay AR, Insolvency Legislation : Annotations and Commentary (Jordans, 2006), 2

  • Keay AR, Insolvency Legislation : Annotations and Commentary (Jordans Publishing, 2005)

  • Keay AR, Walton P, Insolvency Law : Corporate and Personal (Pearson Education, 2003), 1, 596p

  • Keay AR, Murray M, Insolvency: Personal and Corporate Law and Practice (Law Book Company, 2002), 4, 573p

  • Keay AR, McPherson's Law of Company Liquidations (Sweet and Maxwell, 2001), cxxix,924p

  • Keay AR, McPherson The Law of Company Liquidation (Law Book Co., 1999), 4th, 743p

  • Keay AR, Bankruptcy Proceedings Handbook (Law Book Co., 1998), 3, 244p

  • Keay AR, Insolvency: Personal and Corporate Law and Practice (John Libbey & Company, 1998), 3, 550p

  • Keay AR, Avoidance Provisions in Insolvency Law (Law Book Co., 1997), 390p

  • Keay AR, Insolvency: Personal and Corporate Law and Practice (Longman Professional, 1994), 2, 409p

  • Keay AR, Insolvency: Personal and Corporate Law & Practice (Longman Professional, 1993), 1, 298p

  • Keay AR, Bankruptcy Proceedings Handbook (Longman Professional, 1992), 2, 238p

  • Keay AR, Bankruptcy Proceedings Handbook (Longman Professional, 1991), 1, 190p

Journal articles

  • Keay A, ‘Harmonisation of Avoidance Rules in European Union Insolvencies: The Critical Elements in Formulating a Scheme’, Northern Ireland Legal Quarterly, 69.2 (2018), 85-106
    Repository URL: http://eprints.whiterose.ac.uk/129634/

    Only the harmonisation of laws is seen as being able to solve legal uncertainty resulting from legal diversity, but, notwithstanding the advent of the EC Regulation on Insolvency Proceedings, thus far there is no real harmonisation of insolvency laws in the EU. There are indications that the European Commission (EC) has been considering the formulation of a scheme for the harmonisation of the rules that apply in insolvency proceedings to permit the avoidance of transactions entered into prior to the commencement of insolvency proceedings. On this basis this article identifies and analyses those factors that will need to be considered and addressed in the formulation of any harmonised scheme, as well as ascertaining the problems that these factors may cause in the construction of such a scheme. This is a critical issue, for it is all well and good to say that there should be harmonisation, but how that is done, what must be taken into account and what is included in any harmonised scheme is another matter and requires careful thought and consultation.

  • Keay A, Zhao J, ‘Transforming Corporate Governance in Chinese Corporations: A Journey, Not a Destination’, Northwestern Journal of International Law and Business, 38.2 (2018), 187-232
    Repository URL: http://eprints.whiterose.ac.uk/115992/

    The article offers a systemic, historical, and rigorous study of the transformation of Chinese corporate governance, focusing on its development from a totally administrative model, being one which relies on government and administrative power and imposes on corporations’ controllers administrative duties and objectives, to a hybrid model which has both administrative and economic governance characteristics. The article assesses whether administrative power will hinder corporate governance transformation in China on its journey towards a sound and sustainable model. We opine that the government continues to have a key role to play in corporate governance in China which makes administrative interference and power something that is embedded in corporate governance regimes through public and political policies, law enforcement, and strategic management policies for corporations. The administrative involvement might sacrifice efficiency, and effective market and corporate responses. However, it is observed that it may bring comparative advantages for Chinese corporate governance in terms of supporting long term strategic planning and the set-ting of multiple goals for State Owned Enterprises (SOEs, hereinafter), with government interference producing immediate action in order to prevent market failure.

  • Keay A, ‘Stewardship Theory : Is Board Accountability Necessary?’, International Journal of Law and Management, 59.6 (2017), 1292-1314
    DOI: 10.1108/IJLMA-11-2016-0118, Repository URL: http://eprints.whiterose.ac.uk/109675/

    Purpose The purpose of the paper is to demonstrate that notwithstanding the fact that stewardship theory embraces things like trust of directors, their professionalism, loyalty and willingness to be concerned for the interests of others, as well as rejecting the foundations of classic agency problems that are asserted by agency theory, board accountability is as relevant to stewardship theory as it is to agency theory. Design/methodology/approach The paper applies the theory underlying board accountability in corporate governance, which is so often applied both in the corporate governance literature and in practice with agency theory in mind, to stewardship theory. Findings While the idea of accountability of boards is generally associated with an explanation and conceptualisation of the role and behaviour of directors as agents within classic agency theory, the paper demonstrates that board accountability is a necessary part of board life even if the role of directors is explained and conceptualised in terms of stewardship theory. Practical implications The paper suggests some accountability mechanisms that might be employed in a stewardship approach. Originality/value While many authors have talked in general terms about board accountability and its importance, this is the first paper that has engaged in a substantial study that links board accountability directly with stewardship theory, and to establish that accountability is necessary.

  • Keay A, ‘The Harmonization of the Avoidance Rules in European Union Insolvencies’, International and Comparative Law Quarterly, 66.1 (2017), 79-105
    DOI: 10.1017/S0020589316000518, Repository URL: http://eprints.whiterose.ac.uk/103627/

    Cross-border transactions and resultant legal proceedings often cause problems. One major problem is knowing which law should govern the transaction and any legal proceedings. Cross-border insolvencies in the EU are subject to the European Regulation on Insolvency Proceedings (‘EIR’) but this legislation does not determine which substantive insolvency law rules apply in a given insolvency. There are many differences in the insolvency rules applicable in the various EU Member States and this has caused concern in relation to the avoidance of transactions entered into by an insolvent prior to the opening of insolvency proceedings. In light of this, the paper examines options to address divergence between national avoidance rules. One option, harmonization, is analysed as well as its possible benefits and drawbacks.

  • Keay A, Zhao J, ‘Accountability in Corporate Governance in China and the Impact of Guanxi as a Double-Edged Sword’, Brooklyn Journal of Corporate, Financial & Commercial Law, 11.2 (2017), 377-415
    Repository URL: http://eprints.whiterose.ac.uk/108817/

    Accountability is an essential aspect of corporate governance and it has been argued that the “wenze” system of accountability in China comes very close, in the context of corporate governance, to the accountability systems developed in Anglo-American corporate governance. The paper examines the role of cultural factors, namely guanxi and its derivatives, in corporate governance in China to determine what effect, if any, these cultural factors have on the operation and development of the “wenze” system in large listed companies. The paper specifically considers whether the cultural elements affect accountability, and if so, how and to what extent. It also explores whether these cultural factors are good, bad or neutral as far as the development of accountability in fostering good corporate governance is concerned The paper advocates a realistic, functional and culturally sensitive corporate governance accountability system in China, under which guanxi and its derivatives will not be regarded as a substitute for accountability but will work within the “wenze” system of accountability. Meanwhile, the paper’s analysis demonstrates also that guanxi is a double-edge sword, for while it can be an impediment to accountability it is not totally inimical to ensuring that there is accountability.

  • Keay A, ‘Wider Representation on Company Boards and Directors’ Duties’, Journal of International Banking and Financial Law, 31.9 (2016), 530-533
    Repository URL: http://eprints.whiterose.ac.uk/103640/

    The Prime Minister has announced that she wants to see worker and consumer representatives on company boards. If they are appointed consideration needs to be given to how they would be required to act. This article focuses on duties under s 172(1) and s 172(3), Companies Act 2006 and considers how worker and consumer directors should fulfil these duties. It explains that while these directors will be able to consider factors that concern them (to the extent that they are listed in s 172(1)) they will still have to be concerned that what they do will promote the success of the company for the benefit of the shareholders or creditors.

  • Keay AR, ‘Security rights, the European Insolvency Regulation and Concerns about the Non-application of Avoidance Rules’, European Law Review, 41.1 (2016), 72-90
    Repository URL: http://eprints.whiterose.ac.uk/89596/

    This paper addresses debtors who have entered insolvency proceedings in a Member State of the EU so that the European Regulation on Insolvency Proceedings applies, and before the opening of insolvency proceedings they granted some form of security to another party. The paper analyses the issues that are relevant to determining whether the granting of security prior to the advent of insolvency proceedings under the Regulation can be avoided and it examines the extent to which pre-insolvency transactions involving security would be protected by Articles 5 and 13 of the Regulation. It then analyses the concerns that might be articulated in relation to the application of Article 13 and what options are available to the EC to address these concerns.

  • Keay A, Zhao J, ‘Ascertaining the notion of board accountability in Chinese listed companies’, Hong Kong Law Journal, 46.2 (2016), 671-708
    Repository URL: http://eprints.whiterose.ac.uk/99316/

    Accountability is a concept that has been frequently referred to in Anglo-American systems and in the Organisation for Economic Co-operation and Development's corporate governance documents, as well as in the English translations of corporate governance documents from non-English-speak ing jurisdictions. It is in the Anglo-American literature, in particular, where the word finds prominence. It has been suggested in China that accountability is one of the basic principles of corporate governance that needs to be consistently enforced. But does this mean that board accountability, as it has been provided for in the Anglo-American system, is actually an element of Chinese corporate governance? If not, should it be adopted? Or should China develop a concept that is more appropriately included as a critical part of its own particular corporate governance needs? This article aims to address these matters in order to ascertain where Chinese corporate governance stands on accountability as far as the boards of large listed companies are concerned, and what it should do. We opine that while there are elements of accountability in Chinese corporate governance, it does not have the form of accountability embraced in Anglo-American systems. But, it is argued, as China moves from having a system totally based on administrative governance to one that is based more on economic governance, the kind of approach that applies in Anglo-American jurisdictions is likely to become more relevant. Within a hybrid corporate governance system combining elements of both administrative and economic governance, we develop a unique wenze system with forms and characters of accountability to address the needs of corporate governance in China and the fostering of its listed companies.

  • Keay AR, ‘Assessing and rethinking the statutory scheme for derivative actions under the Companies Act 2006’, Journal of Corporate Law Studies, 16.1 (2016), 39-68
    DOI: 10.1080/14735970.2015.1090140, Repository URL: http://eprints.whiterose.ac.uk/84073/

    In October 2007 a statutory scheme, designed to address the issue of derivative actions, came into force. The scheme provided that shareholders wishing to continue (or commence) derivative proceedings in relation to wrongs committed against their company had to obtain the permission/leave of the court. In the subsequent seven years there have been few derivative actions instituted by shareholders and only a small percentage of actions commenced have succeeded in obtaining court permission/leave to proceed. This article undertakes an analytical review of the statutory scheme and identifies reasons why there are so few proceedings in the UK, and more broadly it examines and evaluates the derivative action scheme itself. The paper considers whether the statutory scheme is too narrow and explores some changes that might be made to it in order to make it more accessible and more effective.

  • Keay AR, ‘Directors Negotiating and Contracting in the Wake of Their Companies’ Financial Distress’, Journal of Strategic Contracting and Negotiation, 1.3 (2015), 214-230
    DOI: 10.1177/2055563615610606, Repository URL: http://eprints.whiterose.ac.uk/90423/

    The majority of commercial contracts around the world are negotiated and made by directors on behalf of their companies. Directors are subject to many obligations when they carry out these functions. This paper examines one of the most important ones, and that is the duty that directors owe when their company is in a state of financial distress. The duty owed is for directors to take into account the interests of their companies’ creditors at this time. The paper considers when directors are subject to this duty and what they must do when negotiating and contracting for their financially distressed companies, and considers some of the ramifications for directors and those who deal with them.

  • Keay AR, ‘Assessing the accountability of boards under the UK Corporate Governance Code’, Journal of Business Law 2015, 551-572
    Repository URL: http://eprints.whiterose.ac.uk/83963/

  • Keay AR, ‘Applications to Continue Derivative Proceedings on Behalf of Companies and the Hypothetical Director Test’, Civil Justice Quarterly, 34.4 (2015), 346-365
    Repository URL: http://eprints.whiterose.ac.uk/85733/

  • Keay AR, Welsh M, ‘Enforcing breaches of directors’ duties by a public body and antipodean experiences’, Journal of Corporate Law Studies, 15.2 (2015), 255-284
    DOI: 10.1080/14735970.2015.1044767, Repository URL: http://eprints.whiterose.ac.uk/84071/

    A number of commentators, as well as government reports, have argued that the UK's reliance on private enforcement mechanisms for breaches of directors' duties has generally been ineffective. Some argue that provision should be made in statute for public enforcement. Assuming that there is strength in this argument this article asks what form this public enforcement should take. The article considers the way that Australia has proceeded in the past 20 years or so in permitting the public enforcement of breaches of directors' duties, via both criminal sanctions and civil penalties. The argument advanced in this article is that despite the possible advantages that may flow from the introduction of a criminal enforcement regime, such a regime is unlikely to be adopted in the UK. Following an examination of the use that the Australian corporate regulator has made of the civil penalty regime the argument advanced in the article is that the introduction in the UK of a similar regime providing for the making of the same kind of orders would be beneficial.

  • Keay AR, ‘The shifting of directors' duties in the vicinity of insolvency’, International Insolvency Review, 24.2 (2015), 140-164
    DOI: 10.1002/iir.1236, Repository URL: http://eprints.whiterose.ac.uk/84965/

  • Keay AR, Loughrey J, ‘The framework for board accountability in corporate governance’, Legal Studies, 35.2 (2015), 252-279
    DOI: 10.1111/lest.12058, Repository URL: http://eprints.whiterose.ac.uk/83962/

    In the wake of the financial crisis, there has been much discussion about whether boards (particularly of banks) are sufficiently accountable. However, while a significant literature has grown up in relation to the study of accountability in various disciplines, particularly public administration and politics, in the field of corporate governance there has been little consideration of what accountability means or entails. This is problematic: without a clearer idea of the elusive concept of accountability, debates about board accountability may be at cross-purposes. It will be difficult to assess whether particular corporate governance mechanisms promote board accountability, and if not, why not. The lack of clarity can also mask accountability deficits. This paper addresses this gap, setting out why accountability is important and offering an account of what accountability means in the corporate governance context, focusing on board accountability, in order to provide a framework for future research.

  • Keay AR, ‘Challenging Payments Made by Insolvent and Near Insolvent Companies’, Nottingham Insolvency and Business Law e-Journal, 3 (2015), 215-228
    Repository URL: http://eprints.whiterose.ac.uk/92165/

  • Keay AR, ‘Exploring the rationale for board accountability in corporate governance’, Australian Journal of Corporate Law, ed. by Symes C and Le Mire, S, 29 (2014), 115-146
    Repository URL: http://eprints.whiterose.ac.uk/79863/

    Accountability is frequently referred to in the corporate governance literature, and it is clearly regarded as an important concept. One form of accountability that is significant, according to the literature, is board accountability. But there has been little explanation given as to why it is a critical element for corporate governance. This paper identifies and then explores the possible reasons that are, or can be, given for regarding board accountability as a significant element in corporate governance. It then assesses them in order to ascertain whether they can be, or should be, regarded as sound rationales for demanding board accountability. The paper addresses agency problems, the nature of the board and shareholder vulnerability and finds significant arguments against them being rationales for accountability. It then argues that the best rationale for requiring the accountability of boards is the need for the power of boards to be legitimated.

  • Keay AR, ‘The public enforcement of directors' duties : a normative inquiry’, Common Law World Review, 43 (2014), 89-119
    Repository URL: http://eprints.whiterose.ac.uk/79480/

    The general duties owed by directors to their companies are a critical element of company law overall, and corporate governance in particular. If these duties are breached the board, acting on behalf of the company, is empowered to decide whether to take action against the miscreant directors. If no action is taken then shareholders are permitted to initiate private derivative actions against the directors on behalf of the company. This might be seen as the primary private enforcement mechanism used in the UK when directors commit breaches. But there have been relatively few actions commenced by shareholders, probably because of the many disincentives that exist for them. Given this state of affairs, this paper examines whether there is a need for the public enforcement of duties by some authority so that there is an enhancement of corporate governance in the UK.

  • Keay AR, ‘Directors' duties and creditors' interests’, The Law Quarterly Review, 130.Jul (2014), 443-472
    Repository URL: http://eprints.whiterose.ac.uk/79360/

  • Keay AR, ‘Comply or explain in corporate governance codes: in need of greater regulatory oversight?’, Legal Studies, 34.2 (2014), 279-304
    DOI: 10.1111/lest.12014, Repository URL: http://eprints.whiterose.ac.uk/79121/

    At the heart of the voluntary corporate governance code in the UK and elsewhere is the concept of ‘comply or explain’. It provides that a company is to comply with a code's provision; but if it does not do so, then it is to state that it does not and explain why it does not. There is no provision in the UK for any statements by companies to be assessed by any regulatory body. It is incumbent on the markets generally and the company's shareholders specifically to determine whether the response of the company to code provisions does enough, and then to take some action if they do not. The aim of comply or explain is to empower shareholders to make an informed evaluation as to whether non-compliance is justified, given the company's circumstances. This paper assesses whether the present scheme, which relies on the stewardship of shareholders and the efficiency of the markets, should continue, or whether a regulatory body should be empowered to determine whether companies are in fact complying with code provisions or, if not, whether they are providing adequate explanations for not complying.

  • Keay AR, ‘What is the rationale for making boards accountable?’, Governance Directions, 66.4 (2014), 208-210
    Repository URL: http://eprints.whiterose.ac.uk/79120/

  • Keay AR, ‘Wrongful trading : problems and proposals’, Northern Ireland Legal Quarterly, 65.1 (2014), 63-79
    Repository URL: http://eprints.whiterose.ac.uk/78501/

    The aim of this article is to examine the issues that exist in relation to the bringing of actions for wrongful trading in the UK, and to determine if the law should be reformed. It is argued that because of the way that the wrongful trading provision has been drafted and applied by the courts, it does not achieve what was intended when introduced, for it does not provide the liquidator with an effective weapon in recovering funds for the benefit of creditors and it fails to act as a mechanism that will encourage directors to minimise losses to creditors. As a result the article submits that reforms are needed.

  • Keay AR, ‘An Assessment of Private Enforcement Actions for Directors’ Breaches of Duty’, Civil Justice Quarterly, ed. by Zuckerman AAS, 33.1 (2014), 76-92
    Repository URL: http://eprints.whiterose.ac.uk/77431/

  • Keay AR, Adamopoulou R, ‘Shareholder Value and UK Companies : A Positivist Inquiry’, European Business Organization Law Review, 13.1 (2012), 1-29

    It has generally been maintained that UK companies embrace a shareholder value approach. But some commentators have challenged that view. This article documents an attempt to ascertain the actual position in UK companies by an analysis of the position taken concerning corporate objective by 50 of the largest companies in the UK. The research consists of an examination of the public documents of these companies, namely those that could be accessed from the companies’ websites, and the primary document considered was the company’s most recent Annual Report. The study found that companies could be divided into three groups with one group consisting of 36% of the companies considered, stating that they have shareholder value as their ultimate goal. But, critically, it also found that most of these companies indicated that non-shareholding stakeholders were important to them.

  • Keay AR, ‘The Authorising of Directors’ Conflicts of Interests : Getting a Balance?’, Journal of Corporate Law Studies, 12.1 (2012), 129-162

  • Keay AR, Zhang H, ‘An Analysis of Enlightened Shareholder Value in Light of Ex Post Opportunism and Incomplete Law’, European Company and Financial Law Review 2011, 445-475

  • Keay AR, ‘ “Risk, Shareholder Pressure and Short-termism in Financial Institutions. Does Enlightened Shareholder Value Offer a Panacea?’, Law and Financial Markets Review, 5.6 (2011), 435-448

  • Keay AR, ‘The Prescribed Part : Sharing Around the Company's funds’, Insolvency Intelligence, 24.6 (2011), 81-85

  • Keay AR, ‘The Office holder's delivery up power and the recovery of debts’, Corporate Rescue and Insolvency, 4.1 (2011), 3-5

  • Keay AR, ‘Moving Towards to Stakeholderism? Enlightened Shareholder Value, Constituency Statutes and More : Much Ado About Little?’, European Business Law Review, 22.1 (2011), 1-49

  • Keay AR, ‘Good Faith and directors duty to promote the success of the company’, The Company Lawyer, 32.5 (2011), 138-143

  • Keay AR, ‘Stakeholder Theory in Corporate Law : Has It Got What It Takes?’, Richmond Journal of Global Law & Business, 9.3 (2010), 249-300

  • Keay AR, ‘Getting to Grips With the Shareholder Value Theory in Corporate Law’, Common Law World Review, 39 (2010), 358-378

  • Keay A, Loughrey J, ‘Derivative Proceedings in a Brave New World for Company Management and Shareholders’, Journal of Business Law 2010, 151-178

  • Keay A, ‘The Ultimate Objective of the Public Company and the Enforcement of the Entity Maximisation and Sustainability Model’, Journal of Corporate Law Studies, 10.1 (2010), 35-71

  • Keay AR, ‘Shareholder Primacy in Corporate Law : Can it Survive? Should it Survive?’, European Company and Financial Law Review, 7.3 (2010), 369-413

  • Keay A, ‘Litigation Expenses in Liquidations’, Insolvency Intelligence, 22 (2009), 113-116

  • Keay A, ‘Analytical Review of Canadian Bankruptcy and Insolvency Law: Bill C-55, Statute c.47 and Beyond’, Canadian Business Law Journal, 48 (2009), 154-163

  • Keay AR, Loughrey JM, ‘ “Something Old, Something New, Something Borrowed : An Analysis of the New Derivative Action Under the Companies Act 2006’, The Law Quarterly Review 2008, 469-500

  • Cerioni L, Keay AR, ‘Corporate Governance and the Corporate Objective in the European Community: Proposing a Re–Definition in Light of EC Law’, European Business Law Review 2008, 405-445

  • Keay AR, ‘ “Can Derivative Proceedings be Commenced When a Company is in Liquidation?’, Insolvency Intelligence, 21 (2008), 49-55

  • Loughrey JM, Keay AR, Cerioni L, ‘ “Legal Practitioners, Enlightened Shareholder Value and the Shaping of Corporate Governance’, Journal of Corporate Law Studies, 8 (2008), 79-111

  • Keay A, ‘Ascertaining the Corporate Objective : An Entity Maximisation and Sustainability Model’, Modern Law Review, 71 (2008), 663-698

  • Keay AR, Zhang H, ‘Incomplete Contracts, Contingent Fiduciaries and a Director’s Duty to Creditors’, Melbourne University Law Review, 32.1 (2008), 141-170

  • Keay AR, ‘ “Tackling the Issue of the Corporate Objective : An Analysis of the United Kingdom’s ‘Enlightened Shareholder Value Approach’, Sydney Law Review, 29 (2007), 577-612

  • Keay AR, ‘ Company Directors Behaving Poorly : Disciplinary Options for Shareholders’, Journal of Business Law, 2007 (2007), 656-682

  • Keay AR, ‘ Company Directors Behaving Poorly : Disciplinary Options for Shareholders’, Journal of Business Law, 2007 (2007), 656-682

  • Keay AR, ‘Section 172(1) of the Companies Act 2006 : an interpretation and assessment’, Company Lawyer, 28.4 (2007), 106-110

  • Keay AR, ‘Section 172(1) of the Companies Act 2006 : an interpretation and assessment’, Company Lawyer, 28.4 (2007), 106-110

  • Keay AR, ‘Wrongful Trading and the Point of Liability’, Insolvency Intelligence 2006, 132-134

  • Keay AR, ‘ "Enlightened shareholder value, the reform of the duties of company directors and the corporate objective’, Lloyd's Maritime and Commercial Law Quarterly, 2006 (2006), 335-361

  • Keay AR, ‘Fraudulent Trading : The Intent to Defraud Element’, Common Law World Review, 35 (2006), 121-134
    DOI: 10.1350/clwr.2006.35.2.121

  • Keay AR, ‘Formulating a Framework for Directors’ Duties to Creditors : An Entity Maximisation Approach’, Cambridge Law Journal, 64.3 (2005), 614-646
    DOI: 10.1017/S0008197305006987

  • Keay AR, ‘Wrongful Trading and the Liability of Company Directors : A Theoretical Perspective’, Legal Studies, 25.3 (2005), 431-461
    DOI: 10.1111/j.1748-121X.2005.tb00678.x

    When a company enters insolvent liquidation, the liquidator might take proceedings, under s.214 of the Insolvency Act 1986, against one or more of the company’s directors on the basis that the director(s) engaged in wrongful trading. If found liable, a director might be ordered by a court to contribute to the assets of the company. This article examines whether subjecting directors to liability for wrongful trading is theoretically justifiable. After briefly explaining the origin, aims, rationale and operation of s.214, the article then rehearses and evaluates the arguments propounded by several scholars against any justification for a provision in the mould of s.214. Next the article investigates some of the reasons given for supporting the provision. Following this some consideration is given to whether it is possible to opt out of s.214, and, if not, whether this should be permitted. It is concluded, inter alia, that while s.214 is not representative of good regulation, some form of prohibition against wrongful trading can be justified on theoretical grounds.

  • Keay AR, ‘What Future for Liquidation in Light of the Enterprise Act Reforms?’, Journal of Business Law 2005, 143-158

  • Keay AR, Murray M, ‘Making Company Directors Liable : A Comparative Analysis of Wrongful Trading in the United Kingdom and Insolvent Trading in Australia’, International Insolvency Review, 14 (2005), 27-55
    DOI: 10.1002/iir.125

  • Keay A, ‘Do Recent Canadian Developments Require a Re-Think in the United Kingdom on the Issue of Directors’ Duties to Consider Creditor Interests?’, Insolvency Intelligence, 18 (2005), 65-68

  • Keay A, ‘The New Era for Administrations : Pointers from Down Under?’, Insolvency Intelligence, 18 (2005), 1-5

  • Keay AR, ‘The New Era for Administrations : Pointers from Down Under?’, Insolvency Intelligence, 18.1 (2005), 1-5

  • Keay AR, ‘ “W[h]ither American Cyanamid?: Interim Injunctions in the Twenty-First Century’, Civil Justice Quarterly, 23.4 (2004), 132-150

  • Keay AR, ‘A Theoretical Analysis of the Director’s Duty to Consider Creditor Interests : The Progressive School’s Approach’, Journal of Corporate Law Studies, 4.2 (2004), 307-344

  • Keay AR, ‘Another Way of Skinning the Cat : Enforcing Directors' Duties to Creditors’, Insolvency Intelligence, 17.1 (2004), 1-9

  • Keay AR, ‘Directors Taking Into Account Creditor Interests’, Company Lawyer, 24.10 (2003), 300-306

    Company law

  • Keay AR, ‘Directors' Duties to Creditors: Contractarian Concerns Relating to Efficiency and Over-Protection of Creditors’, The Modern Law Review, 66.5 (2003), 665-699
    DOI: 10.1111/1468-2230.6605001

    Corporate Law

  • Keay AR, ‘The Enterpise Act 2002 : Pioneering a Brave New World in Insolvency Law in the United Kingdom’, Insolvency Law Journal, 11 (2003), 163-181

  • Keay AR, ‘Transactions Defrauding Creditors : The Problem of Purpose under Section 423 of the Insolvency Act’, Conveyancer and Property Lawyer 2003, 272-288

    Defrauding creditors

  • Keay AR, ‘The Service of Statutory Demands’, Insolvency Lawyer 2003, 148-152

  • Keay A, ‘The Service of Statutory Demands on Companies’, Insolvency Lawyer 2003, 148-152

  • Keay AR, Boraine A, ‘The Distribution of Assets of Companies in Insolvent Liquidation: An Australian-South African Comparative Study’, International and Comparative Corporate Law Journal, 4.1 (2002), 1-36
    DOI: 10.1023/A:1016058512741

  • Keay AR, ‘The Duty of Directors to Take Into Account Creditors' Interests; Has it Any Role To Play?’, Journal of Business Law 2002, 379-410

  • Keay AR, ‘Pursuing the Resolution of the Funding Problem in Insolvency Litigation’, Insolvency Lawyer, ed. by Rajak H 2002, 90-98

  • Keay AR, ‘The Director's Duty to Take Into Account the Interests of Company Creditors: When is it triggered?’, Melbourne University Law Review, ed. by Board E, 25.2 (2001), 315-339

  • Keay AR, de Prez P, ‘Should Insolvent Companies Pay? The Search for Environmental Principle’, Environmental Liability, 9.1 (2001), 11-17

  • Keay AR, ‘Balancing Interests in Bankruptcy Law’, Anglo-American Law Review, 30 (2001), 206-236

  • Keay AR, de Prez P, ‘Insolvency and Environmental Principles: A Case Study in a Conflict Public Interests’, Environmental Law Review, 3.2 (2001), 90-112

  • Keay AR, Boraine A, Burdette D, ‘Preferential Debts in Corporate Insolvency: A Comparative Study’, International Insolvency Review, ed. by Fletcher IF, 10.3 (2001), 167-194
    DOI: 10.1002/iir.93

  • Keay AR, ‘Disputing Debts Relied On By Petitioning Creditors Seeking Winding Up Orders’, Company Lawyer, 22.2 (2001), 40-46

  • Keay AR, ‘Claims for Malicious Presentation: The Peril Lurking on the Sidelines for Petitioning Creditors’, Insolvency Lawyer, ed. by Rajak H 2001, 136-144

  • Keay AR, ‘Dispositions of Company Property Post-Presentation of Winding-up Petitions and the Plight of Banks’, The Restitution Law Review 2001, 86-93

  • Keay AR, ‘Insolvency Law : A Matter of Public Interest?’, Northern Ireland Legal Quarterly, 51 (2000), 509-534

  • Keay A, ‘The Recovery of Voidable Preferences : Aspects of Restoration’, Company Financial and Insolvency Law Review 2000, 1-25

  • Keay A, ‘The Recovery of Voidable Preferences : Aspects of Restoration’, Company Financial and Insolvency Law Review, 4 (2000), 1-25

  • Keay A, ‘Transactional Avoidance : Critical Aspects of English and Australian Law” 1-36’, International Insolvency Review, 8.1 (2000)

  • Keay AR, ‘Voluntary Liquidation and Receivership: A Practical Guide’, Insolvency Lawyer 2000, 187-188

  • Keay A, ‘The Pursuit of Legal Proceedings Against Dissolved Companies’, Journal of Business Law 2000, 406-421

  • Keay A, ‘The Supervision and Control of Liquidators’, The Conveyancer and Property Lawyer 2000, 295-306

  • Keay A, Walton P, ‘The Preferential Debts’ Regime in Liquidation Law : In the Public Interest?’, Company Financial and Insolvency Law Review, 3 (1999), 84-105

  • Keay A, ‘Criminal Proceedings Against a Company in Liquidation : Is Leave of the Court Required?’, Company and Securities Law Journal, 17 (1999), 4-10

  • Keay A, ‘Preferential Debts : An Empirical Study’, Insolvency Lawyer 1999, 112-118

  • Keay A, ‘Public Interest Petitions’, Company Lawyer, 20 (1999), 296-301

  • Keay A, ‘“The Unity of Insolvency Legislation : Time for a Re-think?’, Insolvency Law Journal, 7 (1999), 4-15

  • Keay A, ‘Deregistration : The New End of the Road for Companies in Liquidation’, Insolvency Law Journal, 7 (1999), 87-100

  • Keay A, ‘Jurisdictional Chaos : The Fall-Out From the Australian High Court’s Decision in Re Wakim’, International Company and Commercial Law Review, 10.9 (1999), 269-275

  • Keay A, ‘To unify or not to unify insolvency legislation: International Experience and the latest South African Proposals’, De Jure 1999, 62-79

  • Keay A, ‘Jurisdictional Problems, Australian Style” (1999) Insolvency Lawyer 245-253’, Insolvency Lawyer 1999, 245-253

  • Keay A, ‘Finding a Way Through the Maze that is the Law of Statutory Demands’, Company and Securities Law Journal, 16 (1998), 122-138

  • Keay A, ‘The Avoidance of Antecedent Transactions in Bankruptcy : Some New Directions’, Corporate and Business Law Journal, 10 (1998), 113-140

  • Keay A, ‘Preferences in Liquidation Law : A Time for a Change’, Company Financial and Insolvency Law Review, 2 (1998), 198-216

  • Keay A, ‘The Avoidance of Pre-Liquidation Transactions: An Anglo-Australian Comparison’, Journal of Business Law 1998, 515-549

  • Keay A, ‘An Exposition of the Principles of Provisional Liquidation’, Insolvency Law Journal, 6 (1998), 19-35

  • Keay A, ‘Insolvent Companies Which are Able to Dispute Debts Owed to Petitioning Creditors : Should they be Wound Up?’, Company Lawyer, 19 (1998), 230-235

  • Keay A, Boraine A, ‘Challenging Pre-Bankruptcy Dispositions : An Australian - South African Comparison’, South African Mercantile Law Journal, 10 (1998), 267-292

  • Keay A, ‘Corporate Governance During Administration and Reconstruction Under Part 5.3A of the Corporations Law’, Company and Securities Law Journal, 15 (1997), 145-161

  • Keay A, ‘The Ever Changing Field of Bankruptcy Law’, Current Commercial Law, 5 (1997), 40-51

  • Keay A, ‘Personal Insolvency : A New Option for Debtors in Australia’, Insolvency Lawyer 1997, 10-14

  • Keay A, ‘The ‘In the Ordinary Course of Business’ Element in Preference Law : Has it Passed Its Use By Date?’, Insolvency Law Journal, 5 (1997), 41-51

  • Keay A, ‘ “Part X Arrangements: The Fate of a Creditors’ Meeting Following the Rejection of a Debtor’s Proposal’, Australian Business Law Review, 25 (1997), 42-47

  • Keay A, ‘Debt Agreements : The New Alternative to Bankruptcy’, Australian Business Law Review, 25 (1997), 203-211

  • Keay A, ‘Bankruptcy Law in Australia - the Latest Changes’, Insolvency Law and Practice, 13.5 (1997), 149-154

  • Keay A, ‘An Examination of the Procedural Issues Relating to the Commencement of a Liquidator’s Avoidance Action’, Company and Securities Law Journal, 14 (1996), 78-89

  • Keay A, ‘Voluntary Administrations: The Convening and Conducting of Meetings’, Insolvency Law Journal, 4 (1996), 9-22

  • Keay A, ‘Liquidators’ Avoidance of Uncommercial Transactions’, Australian Law Journal, 70 (1996), 390-402

  • Keay A, ‘The Power to Extend Time to Lodge Notice of Corporate Charges’, Company and Securities Law Journal 1996, 136-150

  • Keay A, ‘The Australian Voluntary Administration Regime’, Insolvency Intelligence 1996, 41-44

  • Keay A, ‘Creditors’ Meetings Under Part X: The Entitlement to Vote’, Insolvency Law Journal 1996, 85-92

  • Keay A, ‘The Effects of a Successful Action of a Liquidator to Avoid a Pre-Liquidation Transaction” 236-266’, University of Tasmania Law Review, 15 (1996), 236-266

  • Keay A, ‘Preference Recoveries : Who is Entitled to Them?’, Company and Securities Law Journal, 14 (1996), 442-449

  • Keay A, ‘An Analysis of Unfair Preferences Under the New Avoidance Regime’, Australian Business Law Review, 24 (1996), 39-53

  • Keay A, ‘In Pursuit of the Rationale Behind the Avoidance of Pre-Liquidation Transactions’, Sydney Law Review, 18 (1996), 56-86

  • Keay A, ‘Liquidators’ Avoidance of Preferences : Issues of Concern and a Proposal for Radical Reform’, Adelaide Law Review, 18 (1996), 159-190

  • Keay A, ‘Defending a Liquidator’s Avoidance Action Commenced Under Part 5.7B of the Corporations Law’, Australian Journal of Corporate Law, 5 (1995), 17-44

  • Keay A, ‘Voluntary Administrations in Australia : What Do The Courts Do?’, Insolvency Lawyer, 14 (1995), 12-15

  • Keay A, ‘Extending the Time in Which To Apply to Set Aside Statutory Demands : The Plot Thickens’, Insolvency Law Journal, 3 (1995), 60-66

  • Keay A, ‘Court Involvement in Voluntary Administrations and Deeds of Company Arrangement : Powers, Problems and Prognoses’, Company and Securities Law Journal, 13 (1995), 157-177

  • Keay A, ‘The Avoidance of Antecedent Transactions in Corporate Liquidations : The Australian Regime’, International Insolvency Review, 4 (1995), 139-170

  • Keay A, ‘Challenging Fraudulent Transactions and Unfair Loans as Voidable Pre-Liquidation Transactions’, Deakin Law Review, 2 (1995), 53-64

  • Keay A, ‘Court Orders Made in Relation to Voidable Pre-Liquidation Transactions’, Corporate and Business Law Journal, 8 (1995), 181-202

  • Keay A, ‘The Insolvency Factor in the Avoidance of Antecedent Transactions in Corporate Liquidations’, Monash University Law Review, 21 (1995), 305-333

  • Keay A, ‘The New Preference in Liquidation Law’, Queensland Law Society Journal, 24 (1994), 297-306

  • Keay A, ‘The Parameters of Bankruptcy Examinations’, Australian Business Law Review, 22 (1994), 75-98

  • Keay A, ‘Overstatements in Bankruptcy Notices : Resolving the Uncertainty’, Queensland Law Society Journal, 24 (1994), 11-21

  • Keay A, ‘To Bankrupt or Not to Bankrupt? The Question Faced By All Insolvency Advisers" (Part 2)’, Insolvency Law Journal, 2 (1994), 13-24

  • Keay A, ‘Winding Up Incorporated Associations in Queensland: Process and Problems’, Queensland Lawyer, 15 (1994), 91-108

  • Keay A, ‘Relation-Back Day' and 'Related Entity' : New Key Terms in Liquidation Law’, Insolvency Law Journal, 2 (1994), 126-135

  • Keay A, ‘Which Creditors Are Bound By Deeds of Company Arrangement? The Full Victorian Supreme Court Provides the Lead’, Insolvency Law Journal, 2 (1994), 147-151

  • Keay A, ‘Statutory Demands in Light of the Corporate Law Reform Act 1992’, Company & Securities Law Journal, 12 (1994), 407-417

  • Keay A, ‘The Avoidance of Pre-Liquidation Transactions’, Current Commercial Law, 2 (1994), 98-105

  • Keay A, ‘An Exposition and Assessment of Unfair Preferences’, Melbourne University Law Review, 19 (1994), 545-580

  • Keay A, ‘Can the Chairman's Decision Concerning the Right To Vote at a Part X Meeting Be Reviewed?" 35-47’, Insolvency Law Journal, 1 (1993), 35-47

  • Keay A, ‘Related Party Transactions in Public Companies’, Current Commercial Law, 1 (1993), 85-90

  • Keay A, ‘Awarding Legal Costs in Bankruptcy Examinations’, Australian Bar Review, 10 (1993), 116-122

  • Keay A, ‘To Bankrupt or Not to Bankrupt? The Question Faced By All Insolvency Advisers" (Part 1)’, Insolvency Law Journal, 1 (1993), 187-198

  • Keay A, ‘The Corporate Law Reform Act 1992 : The Effects on Receiverships’, Company & Securities Law Journal, 11 (1993), 438-449

  • Keay AR, ‘Bankruptcy Examinations Under Section 81 of the Bankruptcy Act’, University of Queensland Law Journal, 17 (1992), 35-56

  • Keay AR, ‘Bankruptcy Examinations and the Involvement of Creditors’, University of Tasmania Law Review, 11 (1992), 121-128

  • Keay A, ‘International Elements in Bankruptcy Law : Problems and Solutions’, Adelaide Law Review, 14 (1992), 245-283

  • Keay AR, ‘Gone Fishing: Is it legitimate in an examination under section 597 of the Corporations Law’, Companies and Securities Law Journal, 9 (1991), 70-79

  • Keay AR, ‘Resisting Bankruptcy Notices’, Australian Business Law Review, 19 (1991), 429-449

  • Keay A, ‘The Moratorium Provisions of the Bankruptcy Act’, Queensland Law Society Journal, 20 (1990), 233-237

  • Keay AR, ‘The Effect of the Dismissal of a Creditor's Petition on an Interim Receivership’, Australian Business Law Review, 18 (1990), 389-394

  • Keay A, ‘The Appointment of Interim Receivers Pursuant to the Bankruptcy Act’, Law Institute Journal, 63 (1989), 364-366

  • Keay AR, ‘Avoiding the Pitfalls of Bankruptcy Notices’, Queensland Law Society Journal, 19 (1989), 397-403

  • Keay AR, ‘The Duty of Directors to Exercise Independent Judgment’, The Company Lawyer, 29, 290-296
    Repository URL: http://eprints.whiterose.ac.uk/130233/

Chapters

  • Keay A, ‘Board accountability and the entity maximization and sustainability approach’, in Understanding the Company: Corporate Governance and Theory, ed. by Choudhury B and Petrin M (Cambridge, UK: Cambridge University Press, 2017), 253-270
    DOI: 10.1017/9781316536384.014, Repository URL: http://eprints.whiterose.ac.uk/119766/

  • Keay AR, ‘An Analytical Study of Board Accountability in Transnational Codes of Corporate Governance’, in Corporate Governance Codes for the 21st Century, ed. by du Plessis J and Low CK (Springer International Publishing, 2017), 117-144
    DOI: 10.1007/978-3-319-51868-8_6, Repository URL: http://eprints.whiterose.ac.uk/117338/

    The accountability of boards of directors is a critical element of good corporate governance. It has been widely observed that good corporate governance is best achieved by holding directors accountable for their behaviour and decisions. The World Bank has stated that corporate governance is ‘concerned with the systems of law and practice which will promote enterprise and ensure accountability.’ Many countries have codes of corporate governance. Such codes play an important role in a country’s corporate governance framework and so it follows that they should provide in some way for board accountability, especially given that codes are regarded as providing a set of best practice recommendations regarding, inter alia, the behaviour and role of the board of directors, and the content of codes is heavily affected by corporate governance practices. Certainly one of the first voluntary corporate governance codes, the UK’s Combined Code, stressed the importance of accountability as one of the principles on which it was based. In fact the Report of the Committee on the Financial Aspects of Corporate Governance (commonly referred to as ‘the Cadbury Report’), on which the UK’s Combined Code, and ultimately the UK Corporate Governance Code, was based, stated: ‘The issue for corporate governance is how to strengthen the accountability of boards of directors to shareholders.’ Enforcement of codes is a matter governed by external market forces and, most importantly, the board of directors. If the latter is not accountable then the enforceability of codes is likely to be diminished.

  • Keay AR, Loughrey J, ‘An assessment of the present state of statutory derivative proceedings’, in Directors' Duties and Shareholder Litigation in the Wake of the Financial Crisis (Edward Elgar, 2012), 187-228

  • Keay AR, ‘The duty to promote the success of the company : is it fit for purpose in a post-financial crisis world?’, in Directors' Duties and Shareholder Litigation in the Wake of the Financial Crisis (Edward Elgar, 2012), 50-97

  • Keay AR, ‘ “A Comparative Analysis of the Administration Regimes in Australia and the United Kingdom’, in International Insolvency Law, ed. by Omar P (Ashgate, 2008), 105-133

  • Keay AR, ‘Broadening Corporate Governance in the United Kingdom : How are Directors To Act When Owing Duties to Creditors?’, in Corporate Governance and Institutions : A Pan-European Perspective, ed. by Kowalski T and Letza S (Poznan University of Economics Press, 2006), 21-41

  • Keay AR, ‘The Recovery of Voidable Preferences: Aspects of Restoration’, in Restitution and Insolvency, ed. by Rose F (Mansfield Press, 2000)

  • Keay AR, Hutchinson G, ‘The Property of the Estate’, in Bankruptcy (Law Book Company, 1997), 3

  • Keay AR, ‘Debt Agreements’, in Bankruptcy (Law Book Company, 1997), 3

  • Keay AR, ‘Recovery Actions in Relation to Pre-Bankruptcy Dispositions’, in Bankruptcy (Law Book Company, 1996), 3

  • Keay AR, ‘Winding Up Incorporated Associations: A Queensland Case Study’, in Legal Issues in Non-Proft Associations, ed. by McGregor-Lowndes M, Fletcher K and Sievers S (Law Book Company, 1996)

  • Keay AR, ‘Receiverships in Light of Recent Legislative Changes’, in Corporate Insolvency Law, ed. by Lessing J and Corkery J (Taxation and Corporate Research Centre, Bond University, 1995)

  • Keay AR, ‘The New Avoidance Regime’, in Seventh Annual Insolvency Masterclass (BLEC Books, 1995)

  • Keay AR, ‘Receiverships in Light of Recent Legislative Changes’, in Corporate Insolvency Law, ed. by Lessing J and Corkery J (Taxation and Corporate Research Centre, Bond University, 1995)

  • Keay AR, ‘Bankruptcy and Insolvency in the Asia-Pacific Region’, in International Transactions: Trade, Investment, Law & Finance, ed. by Wilde KCDM (Law Book Co., 1993)

  • Keay AR, ‘To Go Bankrupt or Not’, in Advance Bankruptcy Practice (Advance Bankruptcy Practice, 1993)

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