Page 211 - Albanian law on entrepreuners and companies - text with with commentary

compensation there. The claimants sought to enforce the claims in England, where Cape had
its head office and considerable assets. The English Court of Appeal held that the awards
could not be enforced in England against Cape even though one of the defendants was a
subsidiary of Cape’s and despite the fact that the group had been restructured in order to avoid
liability. That strict interpretation of the separation of companies in a group situation
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compares with different jurisdictions such as India, 198 China and Ghana 200 in which the
courts have discretion to pierce ‘when it is just and in the public interest to do so’ and recently
the UK jurisprudence has found a way to soften the Cape doctrine. While “Recent UK
Supreme Court decisions have confirmed the courts’ highly restrictive approach to veil
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piercing. Under indirect liability schemes, the parent company is held liable based on its
own wrongdoings through the use of the concept of duty of care. 202 Such a duty of care was
203
recognised by the UK Court of Appeal in Chandler v Cape plc. In this case, the parent was
held liable in negligence where its subsidiary’s employees were exposed to asbestos. Key to
the decision was the fact that the parent had assumed responsibility to the employee in
question to advise or ensure that the employee had a safe system of work, and therefore owed
a duty of care to the employees of its subsidiary.” 204 Recently environmental damages
wreaked by large groups have been reflected in jurisprudence in Finland 205 and
Brazil, 206 which aims to hold a parent liable whenever damages are caused to the quality of the
environment. 207 Many of these regulations or cases turn on the connections between the
damage inflicted by the parent and the subsidiary. It is clear that this is a key aspect of the
Albanian law.

198 There are several specific circumstances that can justify veil piercing, as well as a broad residuary ground, see S.
Deva, ‘Sustainable Business and Indian Company Law: A Critical Review’, sect. VII.
199 Art. 20 CL c.f. art.218 CL, c.f. J. Luo and L. Tian, ‘A Study on Sustainable Companies in the P. R. China’, sect. 7.1.
The notion of enterprise liability can also be extended to foreign company’s investing in Chinese companies, even
though the situation with joint ventures is still unclear.
200 P. Schwartz, ‘Developing States and Climate Change: Solutions in Company Law?’, sect. 6.3, p. 37. Pertinent
examples are in relation to the fulfilment of certain requirements of the GCC– also s180 (3).
201 Prest v Petrodel Resources Ltd [2013] UKSC 34 and VTB Capital plc v Nutritek International Corp [2013] UKSC 5
202 Since it is based on a wrongful act made by the parent no exception to the limited liability and separate legal
personality is needed
203 Chandler v Cape plc [2012] EWCA Civ 525
204 Anker-Sørensen, Linn, Parental Liability for Externalities of Subsidiaries: Domestic and Extraterritorial Approaches
(October 7, 2014). University of Oslo Faculty of Law Research Paper No. 2014-36; Nordic & European Company Law
Working Paper No. 14-06. Available at SSRN: http://ssrn.com/abstract=2506508 or
http://dx.doi.org/10.2139/ssrn.2506508
205 A parent company’s environmental liability is regulated in the Environmental Protection Act, Act on Compensation
for Environmental Damage and Environmental Damage Insurance Act. The direct environmental liability is found in § 7
(1) (2) addressing anyone ‘comparable’ to the person carrying out the environmental damage, c.f. J. Mähönen,
‘Sustainable Companies mapping paper on company law issues: Finland’, sect. 4.1.1 and 4.1.3.
206 Federal Bill No. 6938/81 Art. 14(1) and Federal Bill No. 9605/98 Art. 4; see also Art. 50 in Civil Code (general rule
of piercing the veil), c.f. V. Vizziotti, E. Wendling, L. Vaz Ferreira and O. Quirico, ‘Sustainable Companies under
Brazilian Regulation: A Substantive and Procedural Overview’, sect. C.1.
207 Anker-Sørensen, Linn, Parental Liability for Externalities of Subsidiaries: Domestic and Extraterritorial Approaches
(October 7, 2014). University of Oslo Faculty of Law Research Paper No. 2014-36; Nordic & European Company Law
Working Paper No. 14-06. Available at SSRN: http://ssrn.com/abstract=2506508 or
http://dx.doi.org/10.2139/ssrn.2506508

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