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Sunday, Jul 14th 2024

The ACP Legal Association

  • OHADAC and ACP Legal

    The partisans of this project, called OHADAC (Organisation for the Harmonisation of Business Law in the Caribbean), decided to meet within the framework of the association ACP Legal, to help interested Caribbean States to implement the project.

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  • OHADAC in brief

    This brochure has been published by the ACP Legal Association.

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OHADAC Texts

Summary

DRAFT OHADAC MODEL LAW OF COMMERCIAL COMPANIES

Article 33

Principle of non-liability

Unless otherwise agreed, the parent company of a group of companies shall not be held individually liable for any obligations undertaken or any debts incurred by any of its subsidiaries.

Article 34

Exception to non-liability

Without prejudice to the provisions of the previous article, the parent company shall be liable as principal debtor in respect of the creditors of its subsidiaries, where the competent judicial authority has established an abuse of the principle of independent legal personality of the subsidiaries.

Article 35

Abuse of legal personality

1. An abuse of legal personality shall be deemed to have been constituted, and therefore the principle of non-liability of the parent company shall be excluded, where the independent legal personality of its subsidiaries is used for the evasion of statutory provisions in order to infringe public policy, or to commit fraud to the detriment of the rights of shareholders or third parties.

2. In order to take legal action against any abuse of legal personality, the complainant party shall have the obligation to demonstrate before the competent judicial authority, in compliance with any applicable procedural rules, the effective use of a subsidiary company as an instrument to achieve the objectives mentioned in the previous paragraph.

3. Indications of abuse of legal personality within a group of companies shall arise from the determination of some of the following situations, among others:

  1. The parent company’s assets cannot be distinguished from its subsidiary’s assets.
  2. Undercapitalization of the subsidiary.
  3. The parent company assumes and performs the obligation to pay the salaries of the employees of the subsidiary, and to cover other expenses, losses and debts corresponding to the subsidiary, on a habitual and continuous basis.
  4. The opening and use of a single bank account for all the companies of the group.
  5. Common interests and pooling of assets among the companies of the group.
  6. The habitual granting of financing and inter-group security that does not comply with the requirements set out in article 32 hereof.
  7. Transfers of assets and funds in breach of the relevant procedural requirements and without a well-founded basis.
  8. The sharing of executive or management personnel among various companies of the group, and the holding of combined meetings of the boards of directors.
  9. The inducing of creditors to negotiate with the group as a single entity, thereby creating confusion in the minds of the creditors.

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EXPLANATORY NOTE.pdf

Draft OHADAC model law of commercial companies.pdf