Cyprus: Duties Of Directors Under Cyprus Law

DUTIES OF DIRECTORS UNDER CYPRUS LAW

According to Cyprus Companies Law (Cap.113), every public company must have at least two directors whereas a private company must have at least one director (s.170).

Cap. 113 further prescribes that every company shall have a secretary and a sole director, provided that a single person can execute both roles only in the case of a private company where a sole shareholder can be the sole director and also the secretary. (s.171)

Under section 174 of the Law, the acts of a director shall be valid notwithstanding any defect that may afterwards be discovered in his appointment or qualification.

There is a fiduciary relationship between directors of a company and their company which imposes specific duties on them. Courts have over the years construed these general duties. In addition to these, directors have also a great number of statutory duties.

GENERAL DUTIES

Fiduciary Duty

A director owes a duty to the company to act bona fide, meaning in good faith in the best interests of the company. This duty is commonly called the "fiduciary duty" of directors. The core of this duty is that the directors must act to promote the success of the company, taking into consideration both the short-term and long-term interests of the shareholders. In order to adequately execute this duty, directors must be loyal. In other words, they must act in the way they consider, in good faith, would be most likely to promote the success of the company for the benefit of its members. This gives directors considerable leeway, but if they establish their honest belief to that effect, then necessarily there must be some evidence that they actually considered the matter.

In considering whether a director did act bona fide in the interests of the company, the question can be asked in terms of whether an intelligent and honest director could in the whole of the circumstances reasonably believe the transaction to be for the benefit of the company. In order for a director to decide whether or not an act is promoting the success of the company, he examines the objectives of the company as set by the members of the company.

It is of outmost importance that directors must while exercising their fiduciary duties act in accordance with the company's constitution (such as the articles of association) and exercise their powers only for the purposes allowed by law. The payment of a dividend when there are insufficient profits to permit distribution is an illustration of a breach of this duty.

Independent judgment

This obligation to exercise independent judgment does not restrict directors' ability to take advice or rely on advice nor does it require the director himself to be independent. This obligation merely refers to the unfetter discretion of directors, namely that directors can neither bind themselves to vote in a particular way in a future board meeting, nor, with the consent of the company, limit their discretion in relation to the exercise of their powers.

The duty to exercise independent judgment is not infringed by a director acting in a way authorized by the company's constitution. If a director considers in good faith that it is in the interests of the company for a transaction to be entered into and carried into effect, then he or she may restrict his or her powers to exercise an independent judgment by agreeing to act in a particular way to achieve this.

Loyalty and conflicts of interests

Duty to avoid a conflict of interest is one of directors' fiduciary duties.

It is a long-established equitable rule precluding a fiduciary/director from entering without consent into engagements in which he has or can have a personal interest conflicting or which may conflict with the interests of those whom he is bound to protect

The no-conflict rule refers to the exploitation of property, information or opportunity of which a director became aware at a time when he was a director of a company. This duty applies whether the conflict is between 'interest' and 'duty' ie between the direct or indirect interests of a director and the interests of the company and his duty to advance those interests and/or where there is a conflict or possible conflict between 'duties' (for example where a director is a director of two or more companies and has a separate duty to advance the interests of each company).

Not only directors must not place themselves in a position of a conflict or possible conflict, but also in case they find themselves in such a position, they must regulate or abandon the conflict.

Disclosure

Directors have the duty to disclose any, direct or indirect, interest in general meeting. However, they do not have to account for an interest if they are allowed to have that interest by the company's constitution, or the interest has been disclosed to the Board and approved by the company in general meeting.

Apart from these, a director in order to be is a good fiduciary, must act fairly as between the members of the company.

Duty to exercise skill and care

In addition to their fiduciary obligations, directors should be subject to duties of care and skill appropriate to the modern commercial world, bearing in mind the increased emphasis on higher standards of corporate governance. In general, the breach of the duty gives rise to liability for negligence; however it is important to note that directors are rarely sued for negligence in the management of a company's affairs.

Enforcement of the duty of care and skill takes place when the company goes into insolvent liquidation or administration where a liquidator or administrator may consider it worthwhile to pursue a director for wrongful action or decision. If in the course of a winding up of a company, it seems that directors knew or ought to know that the company has no reasonable possibility of paying and nevertheless, they did nothing to cease the company from being credited, then they may become personally liable for that credit as per section 307(v) and 312 of the Companies Law. In this case, directors can avoid the liability if they show that they have taken "every step with a view to minimizing the potential loss to the companies' creditors as they ought to have taken".

Standard of care, skill and diligence

All directors of the company are collectively responsible for company's affairs, but equally directors' duties are 'personal and inescapable' duties, and so within that collective responsibility each director must meet the appropriate standard of care, skill and diligence. The standard of care, skill and diligence that is required is that of a reasonably diligent person who has taken on the office of director, set in the context of the functions undertaken, with that objective minimum standard capable of being raised in the light of the particular attributes of the director in question. For example, if a director is a professional person, such as a chartered accountant, is required to meet the standard expected from a reasonably diligent director carrying out the functions carried out by him in that company and having that personal attribute. This interpretation of the duty of care was set out in Re D' Jan of London Limited [1993] B.C.C. 646. It is commonly known as the "objective" or "benchmark" test of what "the reasonable man" would expect of a director in particular circumstances. If a director has a specific skill or level of expertise, then he or she must exercise that skill in addition to the "benchmark" test.

STATUTORY DUTIES

The statutory duties of directors are enforced by the Companies Law, Cap. 113, Income Tax Laws, VAT, Customs & Excise legislation, Health and Safety and Environmental legislation.

As far as Companies Law is concerned, directors have various duties to the company, its shareholders and public. To start with, directors must be registered as per s.192. The amount of shares or debentures which are held by them must also be stated in the register (s. 187). In case of transfer of shares in a company, directors must take all reasonable steps to secure that particulars with respect to the payment made to him as compensation for loss of office, including the amount thereof, are disclosed (s. 185). In addition to this, directors have the duty to disclose any direct or indirect interests, if any, which arise under a contract or a proposed contract with the company (s.191). Directors' salaries, pensions, compensations and/or loans offered to them by the company must be transparent and hence, included in any accounts of a company laid before it in general meeting (s. 188 and s. 189). Directors must make a statement in lieu of prospectus to be delivered to registrar of companies upon company ceasing to be private company (s. 31), make contracts following the formalities of s. 33 and sign documents which require authentication as per the provisions of s. 37. Regarding the publication of prospectus, directors are obliged to draft same according to the formalities of ss. 38 and 39. Moreover, directors must execute transfer of shares taking into consideration pre-emptive rights and the procedural formalities stated in s.71 to s.82, such as the issuance of both the certificates of shares and the certificates of all debenture stock allotted or transferred within two months after the allotment.

Further to these duties, directors must keep books of account available for inspection (s.141) and make a complete set of financial statements in accordance with the International Accounting Standards (s.142). They must attach to the financial statements a report in relation to the status and the foreseeable development of the company affairs, as well (s. 151). Any alteration or initial drafting of books of account, papers and securities must be made with due consideration since in winding up, any mistakes in these documents may give rise to personal liability under s. 308. Last but not least, in case directors make a petition to the Court for winding up, they must comply with the procedures of s.213 and contribute the assets of the company in accordance with s.207.

Transparency in financial reporting

It is worth mentioning that directors must keep books of account an financial statements open for inspection at least for a period of six years and in a place within the Republic of Cyprus. If a director does not comply with this duty, then he or she is liable for committing a criminal offence, the penalties of which range from a default fine to 2 years imprisonment. Moreover, he or she will have to compensate the company with an amount equal to the loss occurred by his or her breach of duty.

TO WHOM ARE THE DUTIES OWED?

Directors owe their general duties to the company and not to the shareholders, individually or collectively, nor do they owe any duties directly to the company's creditors, individually or collectively. However, the shareholders may specifically appoint the directors as their agents in any matter, of course, in which case the directors will owe them the fiduciary duties arising from that agency relationship.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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