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Troels Michael Lilja

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Den grimme ælling, der aldrig blev en svane

– Hvordan kom det hertil for iværksætterselskaberne (IVS)?

Troels Michael Lilja

The Danish entrepreneur company (IVS) was introduced in 2014 to avoid a boom of Danish branches of foreign companies while phasing out the »company with limited liability« (s.m.b.a.). In April 2019, the opportunity to establish new entrepreneur companies was abolished but no alternative to branches of foreign companies was introduced. A historical view on the legal development of minimum capital requirements for the private limited companies in Europe, Scandinavia and Denmark is given with focus on the Danish development. The opportunities for Danish entrepreneurs after Act 445/2019 are presented, especially with a focus on the opportunities through companies in Greenland and the Faroe Islands, since both have introduced the IVS; Danish entrepreneurs can do business through such companies without registering a branch in Denmark. Finally it is discussed whether the minimum capital requirements in the Nordic countries will disappear in the future. It is recommended that the Nordic governments should work for a harmonization of the minimum capital requirements for private limited companies, if they want to maintain a high requirement on minimum capital in the future.

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Troels Michael Lilja

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Troels Michael Lilja, Cecilie Elgaard Christensen, og Malene Høj Hansen

The article examines the scope of minority protection with focus on the prohibition of majority abuse in the Danish Companies Act’s general clauses. The analysis shows that shareholders in close corporations are to some extend obliged to act with loyalty towards each other. This is due to the nature of the firm that stipulates an underlying implicit agreement, which is covered by the contractual duty of loyalty. However, the duty of loyalty is not stated in corporate law and is neither clarified in accompanying case law, which creates an uncertain position for the minority. The general clauses only include qualified types of abuse that constitute an »obvious« and »unjust« benefit. Even though »unjust benefit« is limited by the duty of loyalty, the literal interpretation is inconsistent with the purpose of the clauses, as they aim to protect the minority from hidden discrimination. In general, the minority has a low incentive to prosecute the majority for suspected majority abuse, as the chances of winning is low due to the difficult burden of proof, as well as the litigation costs. Thus, the majority has a high incentive to commit abuse, as the risk of lawsuit is low, and the majority only risks having to pay litigation costs and a compensation equal to his profit gained from the abuse.