MBA Essay代写范文-公司董事避免利益冲突的义务，本文是一篇留学生MBA Essay范文，主要内容是讲述众所周知的公司具有独立的法人资格。然而，公司并非法人，因此无法管理其业务或资产。董事的角色对于代表公司管理其利益和事务非常重要。存在滥用权力的恐惧，似乎董事被赋予了广泛的权力。因此，当前的《2006年公司法》（CA）对董事的职责进行了编纂，其中包括避免利益冲突的职责，这是本篇MBA Essay的重点。下面就一起来看一下MBA Essay代写范文的全部内容。
Introduction
i. Conflict of Interest under Sc 175
ii. Scope of Corporate Opportunity
iii. Regal Hastings: strict approach
vi. Boardman: no-conflict rule
v. Liberal Approach
vi. Bhullar v Bhullar: business line test
vii. Avoiding Conflict of Interest
a. Sc 175 (4)(a)
b. Sc 175(4)(b): Authorization
Conclusion
Bibliography
Introduction 引言
It is well recognized that company has a separate legal personality[1]. However a company is not a legal person per say, therefore it is unable to manage its business or assets[2]. Hence the role of a director is important to act on behalf of the company in managing its interests and affairs. Thus, there is a fear of abuse of power seemingly directors are given an extensive power. As such, the current Companies Act 2006 (CA) has codified directors’ duties and this includes the duty to avoid conflict of interest[3], which is the pivotal focus of this essay.
This assessment will starts with a brief introduction of conflict of interest, which is codified under Sc 175 of the Companies Act 2006. The duty to avoid exploitation of corporate opportunity is provided under Sc 175(2). However it does not define the scope of opportunity. Thus the next part of the essay will refer to the common law approach, particularly the influence of the no-profit and no conflict rules which has defined and characterized corporate opportunity. In doing so, it is evident that the directors are not freely to pursue opportunity, however the strict common law approach has been relaxed under Sc 175(4) which will be discussed at the end of the essay.
本评估将从简要介绍《2006年公司法》第175条规定的利益冲突开始。第175条第（2）款规定了避免利用公司机会的义务。但是，它没有定义机会的范围。因此，本文的下一部分将参考普通法方法，特别是定义和表征公司机会的“无利润无冲突”规则的影响。在这样做的过程中，很明显，董事们不能自由地追求机会，然而，严格的普通法方法在Sc 175（4）下已经放宽，这将在本文末尾讨论。
i. Conflict of Interest under Sc 175 第175条下的利益冲突
One of the main reforms of the Companies Act 2006 was the codification of directors’ duties. Through the proposal from the Law Commission and Company Law Steering Group, the legislators had replaced the common law system so that directors have a clear view of their duties, which they owed to the company[4]. An important regulation was Sc 175, which illustrates a general duty of directors to avoid conflict of interest. The applicability of this duty is taken in a broader context where director must avoid situation that may be conflicted directly or indirectly with their interest[5]. However not all conflict of interest would fall under this provision. For instance, a benefit that was conferred by a third party would be covered under Sc 176[6].
2006年《公司法》的主要改革之一是对董事职责的编纂。通过法律委员会和公司法指导小组的提议，立法者们已经取代了普通法体系，以便董事们清楚地了解他们对公司的责任。《公司法》第175条是一项重要的规定，它阐明了董事避免利益冲突的一般义务。该义务的适用范围更广，董事必须避免可能与其利益直接或间接冲突的情况。然而，并非所有利益冲突都属于这项规定。例如，由第三方授予的利益将包含在Sc 176中。
As mention earlier, the duty under Sc 175 is fiduciary in nature where the director shares a trustee-beneficiary relationship with the company. As echoed by Lord Cranworth that ‘it is a rule of universal application’[7]that trustees should not enter into contracts where their personal interests conflict with those ‘he is bound to protect’[8]. This equitable rule requires the fiduciary to avoid any conflict of his interest against his principal. In essence, a director is assumed to have a sense of loyalty to the company especially since he is entrusted to manage the company’s asset. Schaller provides an insight that it is better to link this relationship with agency law, as it is a matter of the agent owing the principal a fiduciary duty of undivided loyalty[9]. This is due considering the fact that the directors are designated to act solely in all matters that is connected to the company therefore they are strictly refrains from competing against the company[10].
如前所述，Sc 175项下的义务在性质上是受托责任，其中董事与公司共享受托人-受益人关系。正如克兰沃斯勋爵所呼应的那样，“这是一项普遍适用的规则”，受托人不应在其个人利益与“他必须保护”的利益发生冲突的情况下签订合同。这项衡平法规则要求受托人避免与其委托人发生任何利益冲突。本质上，董事被认为对公司有忠诚感，特别是因为他被委托管理公司的资产。Schaller提供了一种见解，即最好将这种关系与代理法联系起来，因为这是一个代理人欠委托人不可分割忠诚的受托责任的问题。考虑到董事被指定仅在与公司相关的所有事项上行事，因此他们严格禁止与公司竞争。
ii. Scope of Corporate Opportunity 公司机会的范围
In addition to the ‘no-conflict’ rule[11], Sc 175(2) sets out the ‘no-profit’ rule. This provision exemplifies the common law corporate opportunity doctrine and prohibits the act of exploitation by the director[12], It should be noted that this prohibition is not only limited to ‘property, information or opportunity’, but to cover other economically feasible interest to the company.
The ‘no profit’ rule in Sc 175(2) has by large under the influence of the strict view adopted by the English common law. Now, neither Sc 175(2) nor the common law has provided the definition of corporate opportunity. Instead the scope of corporate opportunity is closely linked with the rules of fiduciary duty. Generally it was decided in Keech thattrustee could not renewed the property for the benefits of himself[13]. The significant of such has acted as an analogy for directors. Therefore, a director cannot act upon the corporate opportunity in light of his fiduciary capacity in the company. This is because directors must act in the best interest of the company[14] and not to ‘enter into engagements in which he has or can have a personal interest conflicting or which possibly may conflict with interests of those whom he is bound to protect’[15]. A classic example can be seen in the case of Regal (Hastings) Ltd v Gulliver where the court had perceived a strict view to circumscribe corporate opportunity and held that the directors had ‘material conflicts of interest and duty’[16].
除了“无冲突”规则，Sc 175（2）规定了“无利润”规则。该条款举例说明了普通法公司机会原则，并禁止董事的剥削行为，应注意的是，该禁令不仅限于“财产、信息或机会”，还包括公司的其他经济上可行的利益。第175（2）条中的“无利润”规则基本上受到英国普通法所采用的严格观点的影响。现在，无论是《公司法》第175（2）条还是普通法都没有规定公司机会的定义。相反，公司机会的范围与信托责任规则密切相关。一般来说，基奇决定受托人不能为了自己的利益而更新财产。这一点的重要性为董事们提供了一个类比。因此，董事不能根据其在公司的信托能力对公司机会采取行动。这是因为董事必须以公司的最佳利益为出发点，不得“参与其个人利益冲突或可能与他有义务保护的人的利益冲突的业务”。在Regal（Hastings）Ltd诉Gulliver一案中可以看到一个典型的例子，在该案中，法院认为严格限制公司机会，并认为董事存在“重大利益和义务冲突”。
iii. Regal Hastings: Strict Approach 富豪黑斯廷斯：严格的方法
By way of background, the directors of Regal Ltd set up another subsidiary company, Amalgamated to acquire the other two cinemas in Hastings. However the landowner insisted that a personal guarantee of the rent and the paid up capital in Amalgamated to be increased. As Regal Ltd could only find £2,000 of the total sum, each of the directors in Amalgamated, solicitor and other investor decided to apply for 500 shares each. Subsequently the parties then sold the shares in Amalgamated to the purchasers at a profit and Regal Ltd under the control of the new purchasers pursued a claim for the recovery of sum made by the directors and solicitor for the profits made upon the opportunity. It was argued that profits made should be returned to the company as there was a conflict of personal and company interest seemingly formers directors had used their position to gain the shares.
作为背景，Regal Ltd的董事成立了另一个子公司，合并后收购了黑斯廷斯的另外两家影院。然而，土地所有者坚持要求增加对合并后的租金和实收资本的个人担保。由于富豪有限公司只能从总金额中找到2000英镑，合并后的董事、律师和其他投资者决定各自申请500股。随后，双方将合并后的股份以利润出售给购买者，而在新购买者的控制下，Regal Ltd提出索赔，要求收回董事和律师就该机会产生的利润所支付的款项。有人争辩说，由于存在个人和公司利益冲突，因此所获得的利润应返还给公司。似乎前任董事利用其职位获得了股份。
What immediately distinguished corporate opportunity in Regal Hastings is the position of director in discharging his duty. It was explained by Lord Macmillan that the acquisition of the cinema was an opportunity because it was related to ‘the affairs of the company’[17]. Accordingly, the directors had ‘in the course of their management…with special knowledge as directors’[18] had created the opportunity to finance the acquisition. The court has viewed the shares of Amalgamated were acquired simply because of their knowledge and position as directors for Regal Ltd. Thus such profits obtained from the exploitation of the opportunity are prohibited.
在Regal Hastings中，最引人注目的公司机会是董事履行职责的位置。麦克米伦勋爵解释说，收购电影院是一个机会，因为它与“公司事务”有关。因此，董事们“在其管理过程中……以董事的特殊知识”创造了为收购融资的机会。法院认为，合并后的股份之所以被收购，仅仅是因为他们了解Regal有限公司的董事身份，因此禁止利用该机会获得此类利润。
The reasoning in Regal Hastings emphasized that directors must act in the best interest of the company. Thus the essence of the ‘no profits’ rule derives thereon and states that directors are not entitled to exploit the corporate opportunity, which ‘resulted in a profit to themselves’[19]. Simply this means that scope of corporate opportunity overlaps with the fiduciary duty of the director; hence in this context, the profits attained would be an emblem of a disloyalty of the fiduciary.
Regal Hastings的推理强调，董事必须以公司的最佳利益为出发点。因此，“无利润”规则的实质就是从中衍生出来的，并规定董事无权利用“给自己带来利润”的公司机会。简单地说，这意味着公司机会的范围与董事的受托责任重叠；因此，在这种情况下，获得的利润将是受托人不忠诚的象征。
As consequences, Regal Hastings was described as ‘draconian’[20] because it does not offers flexibility in business decision. Firstly, the opportunity to acquire the shares in Amalgamated has been offered to the company. However, it was the company itself who declined the offer, as it was unable to gather more funds. Therefore, as a matter of fact, if a bone fide decision has been made by the company not to pursue the opportunity, then by all means the directors should not be accountable for the profits they have eventually made[21]. This reasoning formed the basis of the ‘no profits’ rule that is describe as strict and inflexible as it limits the scope for the director to take the opportunity. This is because the House of Lords did not deliberate on whether the company itself could have the potential to exploit the opportunity. It was commented that the court was fixated on the opportunity that arises from the position of the director[22] that it has failed to consider from the position of the directors who has acted in good faith. A comparison drawn with Cook v Deeks whereby three directors of the railway company had set up another new company with intention to divert the opportunity of the construction contract away from the primary company[23].
因此，Regal Hastings被称为“严厉的”，因为它在商业决策中没有提供灵活性。首先，已向公司提供了收购合并公司股份的机会。然而，由于无法筹集更多资金，该公司自己拒绝了这一提议。因此，事实上，如果公司做出了不追求机会的真诚决定，那么董事们无论如何都不应对他们最终获得的利润负责。这一推理构成了“无利润”规则的基础，该规则被描述为严格且不灵活，因为它限制了董事抓住机会的范围。这是因为上议院没有考虑公司本身是否有潜力利用这一机会。有人评论说，法院专注于董事的职位所带来的机会，而法院没有考虑到诚信行事的董事的职位。与库克诉迪克斯案（Cook v Deeks）的比较表明，铁路公司的三名董事成立了另一家新公司，目的是将施工合同的机会从主要公司转移出去。
Contrasting this here, the directors in Regal had acted in good faith and took an extra risk to develop the project when the company was unable to do so. The company would have incurred further loss if the directors had not exploited the opportunity.
与此形成对比的是，Regal的董事们本着诚信行事，在公司无法开发项目时承担了额外的风险。如果董事们没有利用这个机会，公司将遭受进一步的损失。
It seems that liability was simply attached to them because of their position in the company. This lead Keay to comment that the English position has suggested that the fiduciary duty is all encompassing and consuming because the director has ‘no commercial life outside of the company’[24].
似乎他们只是因为在公司中的地位而承担责任。这导致Keay评论说，英国的立场表明，信托责任是包罗万象和消耗性的，因为董事“在公司之外没有商业生活”。
Nevertheless, the House of Lords agreed that it is a misapprehension to question on the position of the director who has been acting bone fide.[25]. Instead the correct preposition was whether the director has been profiting from his position in the company. As put it in words by Lord Russell of Killowen that the rule of equity ‘in no way depends on fraud, or absence of bona fides[26]’.Hence the court has made it clear that motives of the director are irrelevant to circumscribe corporate opportunity. In deciding so, an objective test was adopted to evaluate whether corporate opportunity falls within the fiduciary from the viewpoint of the director having the knowledge. The court was clearly driven with the idea that it is important to uplift the nature of fiduciary loyalty whereby the principal will not be left in the vulnerable position. Especially since the fact that company cannot own opportunities, directors will be at their liberties to fully utilize the opportunity for their own advantages which would lead them to neglect their duty to act in the best interest of the company. Therefore such strict approach to determine the scope of corporate opportunity is necessary to cover situation where a company is unable to act on its own to protect its assets. Thus it is safe to assume that law on the ‘no profit’ rule is reasonable as it act as a regulatory mechanism[27] where the directors are aware and reminded not to take advantage of the opportunity due to the company’s inaccessibility. For instance, in an attempt to prevent the directors from any personal opportunity such as selling or buying of shares, Sky Plc has formed a new special committee to ensure that the board is free from any conflicts of interest in dealing with confidential information during the take over bid by 21st Century Fox[28].
然而，上议院一致认为，质疑董事的立场是一种误解，因为董事一直在忠实行事。相反，正确的介词是董事是否从其在公司的职位中获利。正如基洛文的罗素勋爵所言，公平规则“决不取决于欺诈或缺乏诚信”。因此，法院明确表示，董事的动机与限制公司机会无关。在作出决定时，采用了一种客观测试，从董事的角度评估公司机会是否属于受托人。法院显然是出于这样一种想法，即必须提高受托人忠诚的性质，从而使委托人不会处于弱势地位。特别是由于公司不能拥有机会，董事将有权充分利用机会为自己谋取利益，这将导致他们忽视为公司的最佳利益行事的责任。因此，有必要采用这种严格的方法来确定公司机会的范围，以涵盖公司无法自行保护其资产的情况。因此，可以安全地假设，关于“无利润”规则的法律是合理的，因为它作为一种监管机制，董事们意识到并提醒他们不要利用公司无法进入的机会。例如，为了防止董事会获得任何个人机会，如出售或购买股份，天空股份有限公司成立了一个新的特别委员会，以确保董事会在21世纪福克斯公司收购期间处理机密信息时不存在任何利益冲突。
iv. Boardman: no-conflict rule 博德曼：没有冲突规则
The application in Regal Hastings on the ‘no-profit’ rule has ‘figured so prominently’[29] in deciding the scope of corporate opportunity. So much so, its essence when encountering opportunity has been extended in Boardman[30]. In this case, Boardman the acting solicitor, has obtained useful information and proceeded to exploit the opportunity by capitalizing the assets of the company and in return attained some profits for him as well as the directors. However one of the directors alleged a conflict of interest thus proceeded to sue their profits.
在富豪黑斯廷斯案中，“无利可图”规则的应用在决定公司机会的范围中“占据了如此突出的位置”。因此，在Boardman中，它的本质是“遇到机会时”。在本案中，代理律师Boardman获得了有用的信息，并通过将公司资产资本化利用了这个机会，从而为他和董事们获得了一些利润。然而，其中一名董事声称存在利益冲突，因此对其利润提起诉讼。
The issue here was whether Boardman is liable for the personal profits deriving from the information. Going back to Regal, the opportunity in question was only available during the directorship. However information could -as echoed by Lord Upjohn falls ‘outside the scope of agency’[31] because it can be freely accessible even to the public and not necessary confined to the directors in office. Nevertheless, the majority of the House of Lords in Boardman ensued to treat the acquired information in the similar manner as company’s property. In lieu with that, Boardman has acquired the confidential information whilst he was acting on behalf of the trustees. Thus the profit earned flowing from the opportunity was during his capacity as fiduciary, an eminent conflict of interest.
这里的问题是博德曼是否要为从信息中获得的个人利益负责。回到富豪，这个机会只有在担任董事期间才有。然而，正如厄普约翰勋爵（Lord Upjohn）所呼应的那样，信息可能“不在代理范围内”，因为它可以自由访问，即使是公众，也不必局限于在任董事。然而，Boardman的上议院多数议员随后将获得的信息视为公司财产。作为替代，Boardman在代表受托人行事时获得了机密信息。因此，在他担任受托人期间，从这一机会中获得的利润是一个显著的利益冲突。
In this instance, it seems that the majority judges had disregarded the fiduciary was acting bone fide on behalf of the trust. In Boardman, the profits deriving from the opportunity do not exemplify the conduct of disloyalty. It has been commented that there ought to be a line drawn between the duty to avoid conflict of interest and the role of fiduciary because not all disloyalty colludes with dishonestly[32]. For instance the exploitation of opportunity in Boardman has allowed the company to gain profits. Similarly in Muradwhere it was held that Al-Saraj has to be accounted for all profits attained from the opportunity due to his failure of disclosing information despite the Murad sisters have received profits[33]. It appears that the law has disregarded the causal link between fiduciary and the profits especially when the directors have not fraudulently exploited the opportunity but the court has insisted to impose a strict duty on the directors regardless of their honesty[34]. Thus, this prompted the Court of Appeal in Murad to comment ‘it may be that the time has come when the court should revisit the operation of the inflexible rule of equity in harsh circumstances’[35].
在这种情况下，多数法官似乎忽视了受托人代表信托的绝对诚信。在Boardman中，从机会中获得的利润并不代表不忠诚的行为。有人评论说，应该在避免利益冲突的义务和受托人的角色之间划一条线，因为并非所有的不忠诚都与不诚实相勾结。例如，利用博德曼的机会使公司获得了利润。同样，在Muradwhere，尽管Murad姐妹获得了利润，但由于Al Saraj未能披露信息，因此必须对从该机会获得的所有利润进行说明。法律似乎忽视了受托人与利润之间的因果关系，特别是当董事没有欺诈性地利用这一机会时，但法院坚持要求董事承担严格的责任，无论他们是否诚实[34]。因此，这促使穆拉德上诉法院评论说，“法院可能已经到了在恶劣环境下重新审视不灵活公平规则运作的时候了”。
Subsequently the decision in Boardman has also illustrated that, in addition to the ‘no-profit’ rule, there is another ‘no-conflict’ rule in defining corporate opportunity. This led to the question of whether both the rules are applied co-existingly or separately. Interestingly, Lord Uptown the dissenting judge has argued that the court was too keen to apply the strict approach in Regal without deciding on merit of the case. Kershaw have commented that the ‘no-profit’ and ‘no-conflict’ rule should be a separate and independent set of rules. However the decision by the majority in Boardman has illusions that the no-profits operate as parameter of the ‘no-conflcit’ rule which subsequently determine the rule itself[36]. In doing so, it has epitomized the strict nature of the ‘no-conflict’ rule[37] because the English courts were enthusiastic to attach the duty of fiduciary of loyalty to director thus considered the ‘no-profit’ rules as part of the ‘no-conflict’ rules. For instance it is difficult to consider Boardman to have a fiduciary duty to the company, as he was just a solicitor, but the point where he obtained the profits from the information would out rightly placed him in conflict of interest. Thus it was opinioned that the no-profit rule is an instantiating rule of the no-conflict rule[38].
随后，Boardman案的判决还表明，除了“无利润”规则外，在定义公司机会时还有另一条“无冲突”规则。这导致了这两条规则是同时适用还是分别适用的问题。有趣的是，持异议的法官上城勋爵（Lord Uptown）辩称，法院过于热衷于在没有对案件案情做出裁决的情况下对富豪采取严格的做法。Kershaw评论说，“无利润”和“无冲突”规则应该是一套独立的规则。然而，Boardman多数人的决定有一种错觉，即“无利润”作为“无冲突”规则的参数运行，随后决定了规则本身。这样做，它体现了“无冲突”规则的严格性质，因为英国法院热衷于将忠实信托义务赋予董事，因此将“无利润”规则视为“无冲突规则”的一部分。例如，很难认为Boardman对公司负有信托责任，因为他只是一名律师，但他从信息中获得利润的那一点将使他处于利益冲突之中。因此，有人认为，“无利润”规则是“无冲突”规则的实例化规则。
Subsequent cases have been influence by the decision in Regal/Boardman. In Industrial Development Consultants v. Cooley the pertaining issue was whether the director could be accountable for the profits even if the company could not have obtained the opportunity[39]. The court held that the director was in breach of his duty even though the contract was offered due to the director’s expertise[40]. Lord Roskill referred that the information on the opportunity was of concern and relevant to the company thus director has the liability before accepting the contract[41]. By this reason, there was a connecting link between the profit and fiduciary as the information on the opportunity was given whilst he was still employed as the director in the company.
随后的案件受到富豪/博德曼案判决的影响。在Industrial Development Consultants v.Cooley案中，相关问题是，即使公司无法获得机会，董事是否可以对利润负责。法院认为，尽管合同是由于董事的专业知识而提出的，但董事违反了他的职责。罗斯基尔勋爵提到，有关该机会的信息与公司有关，因此董事在接受合同之前负有责任。由于这个原因，利润和受托人之间存在着联系，因为有关机会的信息是在他仍然担任公司董事时提供的。
v. Liberal Approach 自由主义方法
As opposed to the strict approach in Regal, some cases have resorted in pragmatism to evaluate corporate opportunity. Despite Regal has made much influence in the UK law, nevertheless attempts have been made to narrow down the scope on what constitutes corporate opportunity.
与富豪的严格做法相反，在某些情况下，他们采用实用主义来评估公司机会。尽管Regal在英国法律中发挥了很大的影响，但仍有人试图缩小公司机会的范围。
One of the main reasons for the departure was because the strict rule in Regal was stringent in the modern business context. There is a need to identify that not all opportunity are known to the directors due to their position in the company. Opportunity could also derive subsequent to the directors’ expertise and experience. Likewise in Peso Silver Mines, the company has been approached with an opportunity to acquire the land but it was rejected, as the company cannot restrain its resources any further[42]. The issue here was whether can director seized the opportunity after the company’s rejection.
离开的一个主要原因是，在现代商业环境中，富豪的严格规定非常严格。需要确认的是，由于董事在公司中的地位，并非所有机会都为董事所知。董事的专业知识和经验也可能带来机会。同样，在比索银矿，该公司有机会获得土地，但被拒绝，因为该公司无法进一步限制其资源。这里的问题是，在公司被拒绝后，董事是否能抓住这个机会。
This case has referred to principles held in Regal where the Canadian Supreme Court has to consider the director’s liability. The distinction was, the owner of the land then approached and offered the sale of the land to one of the directors of the company who then set up a new company to acquire it. Ultimately the control of the company changed and the new directors proceeded to sue the now dismissed director for the profits made from exploiting the opportunity. Interestingly the court held that the director was not in breach of his duty despite the director had acted upon the opportunity as per Regal[43]. This is because there were evidence that there were many offer made to the company previously, thus the court was convinced that the directors had acted in good faith and for the best interest of the company to decline the opportunity. And after the rejection, it appears that the director was not in his fiduciary position but in his private capacity when the opportunity was offered again.
本案引用了Regal的原则，加拿大最高法院必须考虑董事的责任。区别在于，土地所有者随后接近并将土地出售给公司的一名董事，该董事随后成立了一家新公司收购土地。最终，公司的控制权发生了变化，新董事开始起诉现已被解职的董事，因为他利用这一机会获得了利润。有趣的是，法院认为，尽管董事根据Regal的规定抓住了机会，但董事并未违反其职责。这是因为有证据表明，之前曾向公司提出过许多要约，因此法院确信，董事会出于善意和公司的最佳利益拒绝了该机会。在被拒绝后，当再次提供该机会时，该董事似乎不是以其受托人的身份，而是以其私人身份。
It was put forward that such conclusion was necessary especially because ‘the complexity of modem business, modern practice and the modern way of life, the strict rule laid down in the Regal and other cases should not be applied’[44]as not all opportunity belong to the company. The liberal approach has refined the scope of corporate opportunity and this was credited to be a ‘desirable development’[45]because it recognized that exploitation of opportunity might not necessary give rise to conflict of interest. For instance in the Australian case of Green v Bestobell Industries[46] that though the manager was held to be breach conflict of interest but the profits he gained from the opportunity has no connection with his fiduciary position as the news of the tender was made to the public at large.
有人提出这样的结论是必要的，特别是因为“现代商业、现代实践和现代生活方式的复杂性，不应适用Regal和其他案例中规定的严格规则”，因为并非所有机会都属于公司。自由主义方法完善了公司机会的范围，这被认为是一个“理想的发展”，因为它认识到利用机会可能没有必要引起利益冲突。例如，在澳大利亚的Green诉Bestobell Industries案中，尽管经理被认定违反了利益冲突，但他从机会中获得的利润与他的信托地位无关，因为招标的消息已向公众公布。
Therefore it appears that the scope of corporate opportunity as defined in Regal is vague as it has exemplifies that any opportunity belongs to the company in equity[47]. The English court has vigorously involve the duty of fiduciary with the application of the no-profit rule even if it does not relates to the exploitation of corporate opportunity. This puts the UK law at odds with the position in United States whereby corporate opportunity is only confined if it falls within the company’s business line[48]. Kershaw has commented that the US approach is more flexible than English Law as it allocate ‘greater proportion of potential opportunity’[49] for the directors because this test will relates if the opportunity can be utilized by the company such as if the company’s financial state ability to consider if such opportunity belongs to it. Take for instance in Guth v Loft, profits made from the opportunity byGuth was accountable Loft Inc as the company’s capital and facilities was used to acquired of Pepsi[50]. It was clear that the director has misused their position to further their personal interest. The US approach has provided an extension to distinguish corporate opportunity to a more realistic and judicial certainty[51] because it relates and considers the opportunity that was pursued by the directors is actively or intimately connected with the company’s existing or current activities. Hence many have ‘welcome and realistic position for the English Law to adopt’[52].
因此，Regal中定义的公司机会范围似乎很模糊，因为它已经证明了任何机会都属于公司股权。英国法院在适用“无利可图”规则时大力要求受托人履行义务，即使该规则与利用公司机会无关。这使英国法律与美国的立场相悖，美国的立场是，只有在公司的业务范围内，公司机会才受到限制。Kershaw评论说，美国的方法比英国法律更灵活，因为它为董事分配了“更大比例的潜在机会”，因为该测试将涉及公司是否可以利用该机会，例如公司的财务状况是否有能力考虑该机会是否属于公司。例如，在Guth v Loft中，byGuth从机会中获得的利润由Loft Inc负责，因为该公司的资本和设施用于收购百事。很明显，董事滥用他们的职位来促进他们的个人利益。美国方法提供了一个扩展，以将公司机会区分为更现实和司法确定性，因为它涉及并认为董事追求的机会与公司的现有或当前活动密切相关。因此，许多人对英国法律持欢迎和现实的立场。
Conversely it is a matter of policy grounds to adopt a liberal approach especially in the context of director resigning from his position. The rule in Regal has been extended to director who has resigned from his position. As provided in the case of CMS Dolphin Ltd whereby the company has successfully claimed for the profits deriving from the opportunity made by the director prior to his resignation. It was held that there must be ‘some relevant connection or link between the resignation and the obtaining of the business’[53]. In this case here, the director has dishonestly transferred the opportunity away from the company prior to the resignation. Thus the profits made were accountable to the company.
相反，采取自由主义方法是一个政策依据问题，尤其是在董事辞职的情况下。《富豪》中的规定已扩展到辞职的董事。根据CMS Dolphin Ltd的规定，该公司已成功申请董事在辞职前获得的机会产生的利润。有人认为，“辞职与获得业务之间必须存在某种相关联系或联系”。在这种情况下，董事在辞职前不诚实地将机会从公司转移出去。因此，所获得的利润应向公司负责。
However the English court has taken the liberal approach in situation where the director has been forced to resign by the company. This can be seen in the case of IEF where the director has gained profits from the contract after his resignation from the company[54]. Hutchison J opinioned that the director has resigned due to the dissatisfaction with the company and not prompted to acquire the opportunity. Furthermore the company was not actively seeking from the orders. His Lordship has highlighted that ‘directors alone, because of the fiduciary nature of their relationship with the company, were restrained from exploiting after they had ceased to be such any opportunity of which they had acquired knowledge while directors’[55]. It is highlighted that it was against public policy to hold them from exploiting opportunity deriving from their knowledge and expertise. Thus it was held that the director is permitted to keep the profit. Furthermore the strict rule is irrational to continuously bind the director even when he has resigned from his position and accept his employment elsewhere. Take for instance, every opportunity received by Eric Schmidt, CEO of Goggle cannot be regarded as conflict of interest is due to his previous affiliation as one of the board members in Apple. It could be perhaps due to his experiences in managing the mobile phone production which is a small industry [56].
然而，在董事被公司强制辞职的情况下，英国法院采取了自由主义的做法。这可以从IEF的案例中看出，董事在从公司辞职后从合同中获利。和记黄埔律师事务所认为，该董事因对公司不满而辞职，并没有获得该机会。此外，该公司没有积极寻求订单。勋爵强调，“由于董事与公司关系的信托性质，董事在不再担任董事期间获得的任何机会后，不得利用这些机会”。有人强调，阻止他们利用从其知识和专长中获得的机会是违反公共政策的。因此，董事可以保留利润。此外，严格的规则是不合理的，即使董事已辞职并在其他地方接受雇用，也要继续约束他。举个例子，Goggle首席执行官埃里克·施密特（Eric Schmidt）获得的每一个机会都不能被视为利益冲突，因为他之前是苹果董事会成员之一。这可能是由于他管理手机生产的经验，这是一个小行业。
Despite above, the preposition for maintaining the strict rule in Regal has its advantages as well. In contrast, the liberal nature of the rule has neglect the duty of loyalty imprint in directors. This lead Beck to criticize the liberal approached has placed the law on fiduciary as ‘inadequate to deal with the corporate context’[57]. Put simply, the significant of the liberal approach shows that director is allowed to accept opportunity which is valuable to him personally but detrimental to the company. Flannigan for instead has stressed that the absence of adhering the strict rule would be ‘technically or delectably disadvantageous’[58]because less degree of protection is offer to the trust and this would attribute to misconduct such as misuse of position. Likewise this could be seen in the commercial reality where Olympus has overpaid its advisor, Axes Americas in the acquisition of Gyrus Group Ltd. The refusal by Olympus to reveal the identity of the owners of Axes Americas has probe and hint that the directors of Olympus has been obtaining personal benefits deriving from the acquisition opportunity[59]. As clarified by Valsan that the central reason for strictness of the test is to prevent the self-interest from interfering with the director’s duty to act in the best interest of the company[60]. Therefore the decision in Regal is prudent as it provides certainty because it explains that the issue is not about the directors acting in good faith but touches upon fiduciary loyalty duty.
尽管如此，在Regal中保持严格规则的介词也有其优点。相反，该规则的自由性质忽视了董事的忠诚义务。这导致贝克批评自由派的做法，认为信托法“不足以处理公司环境”。简言之，自由主义方法的重要性表明，董事可以接受对他个人有价值但对公司有害的机会。相反，弗兰尼根强调，不遵守严格的规则将“在技术上或令人愉快地处于不利地位”，因为向信托提供的保护程度较低，这将归因于不当行为，如滥用职位。同样，这可以从商业现实中看出，在收购Gyrus Group有限公司时，奥林巴斯向其顾问Axes Americas支付了过高的费用。奥林巴斯拒绝透露Axes美洲所有者的身份，这表明奥林巴斯董事一直在从收购机会中获得个人利益。正如Valsan所阐明的，严格测试的核心原因是为了防止自身利益干扰董事为公司的最佳利益行事的义务。因此，Regal的决定是谨慎的，因为它提供了确定性，因为它解释了问题不是关于董事诚信行事，而是涉及信托忠诚义务。
vi. Bhullar v Bhullar: business line test 布勒诉布勒：业务线测试
Aside from the above, the court in Bhullar v Bhullar[61] has explored and redefined the ‘no-conflict’ rule held in Boardman. The facts involve a family company – Bhullar Bros Ltd, whose relationship had broken down and prompted both the brothers and their sons to negotiate to split the company assets. In the aftermath, the defendants chanced upon the sale of property and acquire it through their very own company, Silvercrest. Thus the issue is whether directors were liable for acquiring the property[62].
除此之外，法院在Bhullar诉Bhullars案中探讨并重新定义了Boardman案中的“无冲突”规则。事实涉及一家家族公司——Bhullar Bros Ltd，其关系破裂，促使兄弟俩和他们的儿子进行谈判，以分割公司资产。事后，被告碰巧出售了财产，并通过自己的公司Silvercrest收购了该财产。因此，问题在于董事是否有责任收购该财产。
In lieu with Boardman decision, the court at first instance held that the defendants were in breach of their duty due to the nature of the no-conflict rule lies in the fiduciary position[63]. In other words, the defendants in Bhullar would be accountable to the fiduciary position disregarding the fact that the information of the property was obtained in their private capacity.
作为Boardman裁决的替代，初审法院认为，由于无冲突规则的性质在于受托人的地位，被告违反了他们的义务。换言之，布拉尔的被告将对信托地位负责，而不考虑财产信息是以其私人身份获得的事实。
However, the Court of Appeal took the otherwise direction and examine on the issue of whether the director could acquire the opportunity pending to a negotiation. Their Lordships referred to dissenting judgment of Lord Upjohn in Boardman[64] who remarked that conflict could be avoided ‘if the situation cannot reasonably be regarded as likely to give rise to a conflict of interest’ [65]. This test dictates that a potential conflict arises if the opportunity is within the scope of business of the company and it does not depend on the ‘maturing business opportunity’[66] but on the idea of a reasonable man determining through the facts the case if there was a real possibility of conflict. Hence, it would not depend on the assumption to treat all opportunity as belonging to the company to determine the conflict. In this instance, it was viewed that the property would have been valuable to increase the Company’s commercial value thus the opportunity would falls within it’s existing business line.
然而，上诉法院作出了相反的指示，并审查了董事是否可以在谈判之前获得机会的问题。他们的领主提到了博德曼中厄普约翰勋爵的不同判决，他指出，“如果不能合理地认为该情况可能引起利益冲突”，冲突可以避免。该测试表明，如果该机会在公司的业务范围内，则可能发生冲突，并且该冲突不取决于“成熟的商业机会”，而是取决于一个理性的人通过事实确定是否存在冲突的真实可能性。因此，确定冲突不取决于将所有机会视为属于公司的假设。在这种情况下，有人认为，该房地产对于提高公司的商业价值是有价值的，因此，该机会属于其现有的业务范围。
Moreover as the defendants were still ‘carrying on business namely as the director of the company… in that capacity they were in a fiduciary relationship with the company’[67], there was a real sensible possibility of conflict when the directors have converted the opportunity to themselves.
此外，由于被告仍在“经营业务，即作为公司董事……以该身份，他们与公司存在信托关系”，当董事们将机会转换为自己时，存在着真正合理的冲突可能性。
The judgment in Bhullar was said to embrace the American approach of the ‘line of business test’[68]. Gower for instance has observed that this is a notable decision because the Court of Appeal has supported the scope of business test in identifying the corporate opportunity[69]. This test empowered that an opportunity if embraced ‘fundamental knowledge, practical experience and ability to pursue, which, logically and naturally, is adaptable to its business … it may be properly said that the opportunity is in line of the corporation’s business’[70]. Therefore so long as there is commercial value to the company, the director cannot pursue the opportunity.
据说，布勒案的判决采纳了美国的“业务线测试”方法。例如，高尔观察到，这是一个值得注意的决定，因为上诉法院支持确定公司机会的业务范围测试。这项测试授权，如果包含“基本知识、实践经验和追求能力，这在逻辑上和自然上都适合其业务……可以恰当地说，机会符合公司的业务”。因此，只要公司有商业价值，董事就不能追求机会。
Despite the above,in O’Donnell v Shanahan, the Court of Appeal took the otherwise approach[71]. In short, the salient facts involve a claim against the former directors for acquiring a property, which might have been purchased by the company. The court at first instance found that there was no possibility of conflict because the company’s business was providing financial and advisory services, thus property investment would not have fallen within its business line[72]. The Court of Appeal has furthered that the scope of business is only confined to partnership because its agreement could determine the scope of the partnership’s business and the fiduciary duties. Hence the test adopted in Aas v Benham should be departed[73]. Instead, it was viewed that the opportunity to acquire the property was known to the director during their capacity as directors of the company. Thus the no profit rule was applicable based on the facts, and the directors had triggered the no conflict rule when they have acted upon the opportunity. As such, the lower court’s decision was reversed.
尽管如此，在O'Donnell诉Shanahan案中，上诉法院采取了另一种方式。简言之，突出的事实涉及对前董事的索赔，因为他们收购了公司可能购买的财产。初审法院认为不存在冲突的可能性，因为该公司的业务是提供金融和咨询服务，因此房地产投资不属于其业务范围。上诉法院进一步指出，业务范围仅限于合伙企业，因为其协议可以确定合伙企业的业务范围和信托责任。因此，Aas v Benham中采用的试验应予以取消。相反，据认为，董事在担任公司董事期间就知道有机会获得该财产。因此，基于事实，无利润规则是适用的，董事在对机会采取行动时触发了无冲突规则。因此，下级法院的裁决被推翻。
Based on the decision in O’Donnell, it is evident that the Court of Appeal declined to refer to test of business line for the scope of corporate opportunity[74]. It was commented the test is difficult to determine the company’s business line and it would further defer the directors from gaining the opportunity[75]. Referring to the approach in Bhullar, it does not form flexibility in determining the scope of opportunity[76] but in fact it was a ‘stricter version of the line of business test’[77]. This is because the defendants in Bhullar were a mere passer-by when they come across the opportunity[78]. Furthermore the opportunity to purchase the land was not presented to the company. The company was neither interested nor pursuing the property especially since the directors have decided to part ways thus the company has no legitimate interest with the opportunity[79]. The business line test has compelled to limit the self-interest of the director by considering all opportunity as commercially attractive to preclude from the director from exploiting it. It would not make sense as now opportunity are not only confined to the company’s current business line but to encompass what it would be interested in the future. As such this is a grey area that was left unresolved as opposed to the certainty in the strict approach.
根据O'Donnell案的判决，上诉法院显然拒绝在公司机会的范围内参考业务线测试。有人评论说，测试很难确定公司的业务线，这将进一步推迟董事获得机会。参考Bhullar中的方法，它在确定机会范围方面没有形成灵活性，但事实上它是“更严格的业务线测试版本”。这是因为布拉尔的被告在遇到机会时只是一个路人。此外，没有向公司提供购买土地的机会。公司既没有兴趣也没有追求该财产，特别是因为董事会已决定分道扬镳，因此公司对该机会没有合法利益。业务线测试通过将所有机会视为具有商业吸引力来阻止董事利用这些机会，从而限制了董事的自身利益。这是没有意义的，因为现在的机会不仅局限于公司当前的业务线，而且还包括它未来感兴趣的内容。因此，这是一个尚未解决的灰色区域，而不是严格方法中的确定性。
vii. Avoiding Conflict of Interest 避免利益冲突
Given the nature of the law, it is clear that director will be caught under Sc 175 if he had appropriated any opportunity. The basic preposition in Regal/Boardman has been reaffirm under Sc 175(2) where it states that ‘it is immaterial whether the company could take advantage of the property, information or opportunity’. Going back to the assessment, director cannot escape Sc 175 by virtue that a fiduciary is required to ‘serve his master with good faith and fidelity’[80]. This formulation was argued by Worthington as ‘an orthodox fashion’ [81] as the CA has not provided basic guideline of whether the opportunity is rightfully belonging to the company.
鉴于法律的性质，很明显，如果董事挪用任何机会，他将根据第175条被逮捕。Regal/Boardman中的基本介词已在章节175（2）中被重新确认，其中指出“公司是否能够利用财产、信息或机会并不重要”。回到评估，董事无法逃脱Sc 175，因为受托人必须“以诚信和忠诚服务于其主人”。沃辛顿认为这种表述是“正统的方式”，因为CA没有提供机会是否属于公司的基本准则。
Nevertheless, the harsh effects of the rules are mitigated with the introduction of Sc 175(4). It is not within the essay to discussed on how to escape liability but the only way the director could exploit the opportunity if the situation cannot be regarded to give rise to a conflict[82] or alternatively the matter has been given authorization by the company[83].
尽管如此，通过引入Sc 175（4），规则的恶劣影响得以缓解。本文不讨论如何逃避责任，而是讨论如果情况不能被视为引起冲突，或者该事项已获得公司授权，董事可以利用该机会的唯一方式。
(a) Sc 175 (4)(a)
Firstly, Sc 175 (4)(a) requires the element of reasonableness to decide whether there is conflict[84]. Generally it provides an alternate answer to Sc 175(2) whereby if the director could usurp opportunity in their private capacity. This provision has used the similar phrase used by Lord Upjohn thus it has been suggested that this provision has referred to the scope of business test[85]. It appears that the law has codified both the majority and dissenting decision in Boardman where Sc 172(2) embraces the duty to avoid conflict and Sc 175(4)(a) provides situation that is unlikely to consider a conflict of interest[86]. Thus Sc 712(4)(a) is an ideal struck of balance between the strict and flexible rule because the court could adopt a broad or a wide view in defining opportunity as whether it fall within the business line[87].
首先，第175（4）（a）条要求合理性要素来决定是否存在冲突。一般来说，它提供了对Sc 175（2）的另一种回答，即董事是否可以以其私人身份篡夺机会。本条款使用了厄普约翰勋爵使用的类似短语，因此有人认为本条款提及了业务测试范围[85]。法律似乎已经编纂了《博德曼法案》中的多数裁决和异议裁决，其中第172（2）条包含避免冲突的义务，第175（4）（a）条规定了不太可能考虑利益冲突的情况。因此，Sc 712（4）（a）是在严格规则和灵活规则之间取得平衡的理想选择，因为法院可以采取广泛或宽泛的观点来定义机会是否属于业务范围[87]
However the lack of clarity begs the question of whether under Sc 175 (4)(a) would applies after the company’s unbiased rejection. Brenda viewed that Sc 175 (4)(a) was negatively expressed because it fails to clarify what circumstances that would qualifies under this provision[88]. Indeed only certain situation allows one to reasonably decide if there is a rise of conflict. For instance if the company’s articles of association has provides an exemption clauses to address situation of conflict of interest[89]. Brudney and Clark had commented that the element of impossibility in the test would ultimately lead to ‘an inevitable results will be to permit the diversion’[90]. This is especially so when the court needs to ascertain company’s line of business, which is wide and could stretched to the future scope of the business.
然而，缺乏明确性引发了一个问题，即根据第175（4）（a）条的规定，在公司被无偏见地拒绝后是否适用。布伦达认为，第175（4）（a）条的表述是负面的，因为该条未能澄清哪些情况符合本条款的规定。事实上，只有在特定的情况下，人们才能合理地决定是否会出现冲突。例如，如果公司的公司章程规定了豁免条款，以解决利益冲突的情况。Brudney和Clark评论说，测试中的不可能因素最终将导致“不可避免的结果将是允许转移”。当法院需要确定公司的业务范围时尤其如此，该业务范围很广，可能延伸到未来的业务范围。
Alternatively Lim has suggested that directors could exploit the opportunity from the time of the company’s rejection. He illustrated this point with the reference to Peso case and argued that the reason why the court was convinced that there is no exploitation because the company has formally authorized the rejection and the interested directors had only took up the opportunity in a reasonable time after the company’s rejection[91]. By virtue of this, it can be suggested that a director must mitigate all consideration such as whether the company has given actual authorization where one would perceive to be reasonable possibility of conflict before taking the opportunity[92]. However it is unclear whether Lim’s suggestion can be a mere speculation as there are no current attempts and authorities to clarify Sc 175 (4)(a).
或者，Lim建议董事可以利用公司被拒绝时的机会。他以比索案为例说明了这一点，并辩称，法院之所以确信不存在剥削，是因为公司已正式授权拒绝，且相关董事仅在公司拒绝后的合理时间内抓住了机会。因此，可以建议董事必须减轻所有考虑因素，例如公司是否已给予实际授权，如果在抓住机会之前认为存在合理的冲突可能性。然而，目前尚不清楚Lim的建议是否仅仅是一种猜测，因为目前没有任何尝试和当局澄清Sc 175（4）（a）。
(b) Sc 175(4)(b):Authorization
Moving on to Sc 175(4)(b), one could pursue the corporate opportunity if he has obtained the board authorization. Contrasting this with Sc 175(4)(a) where the issue of clarity has yet to be attempted in UK[93], Sc 175(4)(b) embodies the common law approach for company approval that there is no breach of conflict of duty. Thus it has been commented that Sc 175(4)(b) is arguably the better exception[94] as it provides certainty to act as an effective the defense mechanism to avoid conflict of interest.
转到第175（4）（b）条，如果获得董事会授权，可以寻求公司机会。与《公司法》第175（4）（a）条（英国尚未尝试明确性问题）相比，《公司法》第一七五（4）（b）条体现了公司批准的普通法方法，即没有违反义务冲突。因此，有人评论说，Sc 175（4）（b）可以说是更好的例外，因为它提供了确定性，可以充当有效的辩护机制，以避免利益冲突。
Prior to CA, the importance of gaining authorization was explained in Bhullar that ‘the existence of the opportunity was information which it was relevant for the company to know, and it follows that the appellants were under a duty to communicate to the company’[95]. The common law has implied that the failure to inform the company about the opportunity is a breach of duty. As explained by Armour that the rule of conflict interest does not concern on returning the profits to its entitlement but rather it encourage the responsibility of disclosure[96]. In light of this the preposition for authorization under Sc 175(4)(b) impose that the director is under a duty to disclose his conduct to the company. Such was the position in Fassihi, where the Court of Appeal held that the managing director was under a positive duty to disclose the benefits deriving from the opportunity[97]. The failure to disclose would amounts to a conflict of interest.
在CA之前，Bhullar解释了获得授权的重要性，即“机会的存在是公司了解的相关信息，因此上诉人有义务与公司沟通”。普通法暗示，未将机会告知公司即为违反义务。正如Armor所解释的，利益冲突规则并不涉及将利润返还其应有权利，而是鼓励披露责任。有鉴于此，Sc 175（4）（b）中授权的前置词规定，董事有义务向公司披露其行为。这就是Fassihi案的情况，上诉法院认为总经理有义务披露从该机会中获得的利益[97]。不披露将构成利益冲突。
Under this provision directors could avoid conflict of interest by gaining authorization from the board[98]. It is highlighted that it is a loose term to attach the director for a duty to disclose the interest[99]. This is true as the purpose of disclosure is not for the director to relief himself from the liability, but to prevent the abuse of trust vested upon them. Thus maintaining the ‘integrity of trusting relationship’ is the source of obligation[100]. Likewise the claim on conflict of interest against Theo Paphitis was dropped because the boards were fully aware and given the authorization before he could engage on the opportunity in purchasing La Senza[101].
根据该条款，董事可以通过获得董事会的授权来避免利益冲突。需要强调的是，赋予董事披露权益的义务是一个松散的术语。这是事实，因为披露的目的不是为了免除董事的责任，而是为了防止滥用赋予董事的信任。因此，维护“信任关系的完整性”是义务的来源。同样，针对西奥·帕菲蒂斯的利益冲突索赔也被撤销，因为董事会在他有机会购买拉森扎之前已经充分意识到并获得了授权。
It is highlighted that the concept of authorization works differently for private and public company. In the case of private company, the article of association could either permit or refused to grant authorization[102]. If it is former, the director could gain authorization of the conflicted matter[103].
有人强调，授权的概念对私营和上市公司的作用不同。对于私人公司，公司章程可以允许或拒绝授予授权。如果是前者，董事可以获得冲突事项的授权。
As for public company, Sc 175(6) provides that a simple majority is required to authorize the conflict matter. Firstly, its article of association must expressly allow the directors to access to the opportunity[104]. The next phrase involving the voting procedure where interested directors are not allowed to vote on the conflicted matter[105]. It is caution that the meaning of ‘interested director’ is not provided; nevertheless it is safe to assume that it is referring to the director who is actively interested to purse the conflicted matter. Such was the approached in Regal whereby the court held that the authorization by the directors is not valid as it was the fiduciary themselves who have authorized the opportunity to acquired Amalgamated shares. This would act as a safeguard because there is a risk of gaining approval from the board. As highlighted by Gower that there is an underlying interest in a culture of easy conflict approval’[106]. There is a risk of collusion amongst the directors who happens to share a close relationship with the interested directors. This could seen in Enron where the board of directors have approved a number of proposals for its Chief Financial Officer to acquired the opportunity on behalf of the company and profited at the company’s expense[107]. This is to remind and alert the directors who are voting that they are subjected to a duty to act in the best interest of the company and personal benefits should be avoided[108].
至于上市公司，Sc 175（6）规定，授权冲突事项需要简单多数。首先，其公司章程必须明确允许董事获得该机会。下一个短语涉及投票程序，其中有利害关系的董事不得就冲突事项投票。请注意，未提供“相关董事”的含义；然而，可以放心地假设，它指的是积极有兴趣获取冲突事项的董事。在Regal案中，法院认为董事的授权无效，因为是受托人自己授权了收购合并股份的机会。这将起到保护作用，因为有获得董事会批准的风险。正如高尔所强调的，在容易产生冲突的批准文化中存在潜在利益“。与相关董事关系密切的董事之间存在串通风险。这可以在安然公司中看到，董事会批准了一系列建议，让首席财务官代表公司获得机会，并从公司的费用中获利。这是为了提醒和提醒正在投票的董事，他们有义务为公司的最佳利益行事，应避免个人利益。
Another issue arouse as to whether authorization from the shareholders are more appropriate. It was provided in Regal where the judges had referred to Lord Russell that acquiring votes from shareholders would constitute a valid authorization. Perhaps this is because the voting procedure would pose a limitation especially to a sole proprietor company. As seen in Goldtrail Travel Ltd v Aydin where the court held that the director is unable to acquire the opportunity by virtue of SC 175(6) as he is the sole proprietor of the said company[109]. Despite that it is unclear whether the common law position will be referred. Furthermore it was submitted by the Company Law Review Steering Group (CLRSG) that getting the authorization from the shareholders should be avoided as it is against the idea that the board of directors making decision for the company[110]. This was supported by Enriques and others who voiced that this can reduce cost of having a annual meeting which is also time consuming as the process involving the discussion would put the opportunity at the risk of lost[111].
另一个问题是股东授权是否更合适。《富豪》中规定，法官曾向罗素勋爵提及，从股东那里获得投票权将构成有效授权。也许这是因为投票程序会造成限制，特别是对独资公司。如Goldtrail Travel Ltd v Aydin案中所述，法院认为，由于董事是该公司的独资经营者，因此根据SC 175（6）的规定，董事无法获得该机会。尽管如此，仍不清楚是否会提及普通法立场。此外，公司法审查指导小组（CLRSG）提出，应避免获得股东的授权，因为这与董事会为公司决策的想法背道而驰。Enriques和其他人对此表示支持，他们表示，这可以降低召开年会的成本，这也是一项耗时的工作，因为讨论过程可能会失去机会。
Conclusion 结论
Even with the codification of director’s duties under the CA, the common law approach will be largely influential in guiding the court to determine if there is a conflict of interest should the director acted upon the opportunity. Despite there are attempts to narrow down the interpretation of opportunity, nevertheless the codification of the CA has endorsed the strict approach taken in Regal/Boardman. Perhaps this is driven with the fear that director, as trustee would abuse their position for their personal interest. Thus the strict formulation is necessary ‘to maintain its vigour in the new setting.‘[112]
即使《公司法》对董事的职责进行了编纂，普通法方法仍将在很大程度上有助于指导法院确定如果董事利用该机会行事，是否存在利益冲突。尽管有人试图缩小机会的解释范围，但CA的编纂已经认可了Regal/Boardman采取的严格方法。也许这是因为担心董事作为受托人会为了个人利益滥用其职位。因此，严格的表述是“在新环境下保持活力”所必需的。
However it should be noted that the decision in Regal and Boardman were prompted by the fact where it was difficult to ascertain the intention of the directors. In this sense, the significant in Regal/Boardman cannot be justified in this modern context. Hence to mitigate this vigor, the CA has acknowledged that directors are allowed to act on the opportunity only if there is authorization. In doing so, it has clarified that a corporate opportunity is available to the directors.
MBA Essay范文提到应注意的是，Regal和Boardman的决定是由于难以确定董事的意图。从这个意义上讲，富豪/董事会成员的重要性在现代背景下是不合理的。因此，为了缓解这种活力，CA已经承认，只有在获得授权的情况下，董事才可以根据机会行事。在这样做的过程中，它澄清了董事可以获得公司机会。本站提供各国MBA Essay代写或指导服务，如有需要可咨询本平台。