Corporate Board: Role, Duties & Composition / Volume 16, Issue 2, 2020

PIERCING THE CORPORATE VEIL IN

VARIOUS JURISDICTIONS – PRINCIPLED
OR UNPRINCIPLED?
Badar Mohammed Almeajel Alanazi *
* Law Department, College of Science and Humanities Studies, Shaqra University, Saudi Arabia
Contact details: Shaqra University, Riyadh Province, P.O. Box 33 Shaqra 11961, Saudi Arabia

Abstract

How to cite this paper: Alanazi, B. M. A. The principle of limited liability of a company has been
(2020). Piercing the corporate veil in various
uniformly adopted by developed countries. In order to ensure a
jurisdictions – Principled or unprincipled?
Corporate Board: Role, Duties and fair balance, the courts agree on occasion to „pierce‟ or „lift‟ the
Composition, 16(2), 47-53. corporate veil, which involves imposing liability on the mother
https://doi.org/10.22495/cbv16i2art4 company for actions of its subsidiary or individual
shareholders, directors, and other involved persons for actions
Copyright © 2020 The Author
of the company. In this regard, there have been several studies
This work is licensed under a Creative arguing the legal issues associated with the limited liability of a
Commons Attribution 4.0 International company and piercing the corporate veil such as Schall (2016)
License (CC BY 4.0).
https://creativecommons.org/licenses/by
and Michoud (2019). This paper compares current veil-piercing
/4.0/ practices in three jurisdictions: the UK, the US, and Australia in
order to outline the advantages and limitations of the
ISSN Online: 2312-2722 approaches taken by the courts in each country as well as to
ISSN Print: 1810-8601
identify best practices in terms of veil piercing. For that
Received: 08.04.2020 purpose, an analytical approach to the examination of the
Accepted: 30.06.2020 relevant legal rules, principles, and court cases has been
adopted in undertaking the present paper. The paper comes up
JEL Classification: M10, G30, G38
DOI: 10.22495/cbv16i2art4
with a number of specific suggestions and recommendations for
improving the regulatory role in regard to the subject of
piercing of the corporate veil.

Keywords: Corporate Personality, Veil Lifting, United Kingdom,

Australia, United States

Authors’ individual contributions: The Author is responsible for all

the contributions to the paper according to CRediT (Contributor
Roles Taxonomy) standards.

Declaration of conflicting interests: The Author declares that there is

no conflict of interest.

1. INTRODUCTION Yet, the approaches to piercing the veil in both cases

are not uniform across jurisdictions. For instance,
The invention of the legal concept of the corporate the courts in the UK take a rather unprincipled
veil was seen by many as one of the greatest approach to lift the veil, which contributes to an
achievements in the history of the economy The ever-expanding list of circumstances that constitute
principle of limited liability of a company has been exceptions to the principle of separate corporate
uniformly adopted by developed countries, with legal personality (Schall, 2016; Michoud, 2019).
major multinational companies consisting of several Similarly, the approach of Australian courts was
subsidiaries in different states rising in power famously summarised by Rogers AJA from the New
(Spotorno, 2018; Mujih, 2017). In order to ensure a South Wales Court of Appeal as having “no common,
fair balance, the courts agree on occasion to „pierce‟ unifying principle, which underlies the occasional
or „lift‟ the corporate veil, which involves imposing decision of courts to pierce the corporate veil”
liability on the mother company for actions of its (Briggs v. James Hardie & Co Pty Ltd, 1989). On the
subsidiary or individual shareholders, directors, and other hand, the US is one of few jurisdictions which
other involved persons for actions of the company. follow a set of uniform theories when deciding

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 Corporate Board: Role, Duties & Composition / Volume 16, Issue 2, 2020

whether the veil should be lifted, including the based his decision to lift the veil on the justification
instrumentality theory, the alter ego theory, and the that “the purpose of it was to enable [Mr. Gilford],
recently formed business enterprise theory (Tsang, under what [was] a cloak or sham, to engage in
2014). The approaches in those three jurisdictions business which, on consideration of the agreement
will be compared in the current paper with the aim (…) was a business in respect of which he had a fear
of extrapolating useful lessons and best practices that the plaintiffs might intervene and object”
for future decisions of the courts in each of them. (Gilford Motor Co. Ltd v. Horne, 1933). In both cases,
Hence, the structure of this paper as follows. the judgements appear to have been taken somehow
Section 2 elaborates on the approach of the UK ad hoc, bearing in mind the fairness of the potential
jurisdiction by assessing court cases on lifting the outcomes for both parties. In particular, the courts
corporate veil. Section 3 investigates the Australian in Daimler and Gilford appear to have been at a loss
approach regarding piercing the corporate veil. for a unified rule which would be sufficiently broad
Section 4 converses about the situation in the US. in scope to apply to both situations.
Section 5 provides lessons for the future and best The obvious advantage of this unprincipled
practices from the three jurisdictions in relation to approach applied by the courts in Daimler and
piercing the corporate veil. Section 6 presents a Gilford is that it allows the judges to carefully
summary and conclusions. consider the potential consequences of each
individual decision for future cases, as well as to
2. CASE BY CASE ASSESSMENT – LIFTING THE VEIL contemplate the impact of the decision they are
IN THE UK about to take on the economy. This flexible
approach further enables judges to ensure that
The approach taken by UK courts to lifting the justice is achieved in each individual case, similarly
corporate veil can be described as a largely to the manner in which the law of equity enables
unprincipled assessment of the individual them to avoid rigid common law principles in other
circumstances of each case (Hannigan, 2013). areas of the UK law, where following such principles
Guidance on the situations in which the courts will would lead to an unfair outcome of the case.
decide to lift the veil can be drawn from previous However, the absence of unified principles or
cases (Lee v. Lee’s Air Farming Ltd, 1961; Chandler v. theories on lifting the veil contributes to a
Cape plc, 2011; Ord v. Belhaven Pubs Ltd, 1998; significant lack of clarity of the law in this area,
Creasey v. Breachwood Motors Ltd, 1992; Re FG which makes it impossible for companies,
(Films) Ltd, 1953). However, such guidance should by shareholders, directors, creditors, and other
no means be perceived as an exhaustive list of interested parties to predict the likely outcome of a
conditions leading to the lifting of the veil. In the decision.
past, the courts agreed to impose liability on The complexity of the law in this area resulting
company shareholders due to a statutory provision, from the lack of a principled approach can be
such as s. 213 of the Insolvency Act of 1986 which especially observed in cases involving the liability of
refers to fraudulent trading conducted within the a parent company for actions of its subsidiaries. At
company (Insolvency Act of 1986). The veil was also one point, the courts shed doubt on whether a group
lifted in Daimler Co. Ltd v. Continental Tyre and of companies can be considered as a single business
Rubber Co. (Great Britain) Ltd (1916) to recognise the unit in the case of Adams v. Cape Industries plc
German citizenship of company shareholders in (1990), only to take that decision back over twenty
times of war when s. 1 of the Trading with the years later in Prest v. Petrodel Resources Ltd (2013).
Enemy Act of 1914 prevented “enemy trading” In Chandler v. Cape plc (2012) the court even went
(Trading with the Enemy Act of 1914; Tunstall v. as far as to impose liability on a parent company for
Steigmann, 1962). Similarly, the UK courts were in the negligence of a subsidiary which was no longer
the past prepared to lift the veil where the company in existence, and which lead to its employees
was clearly set up as a sham or a façade used to developing asbestosis; only to subsequently claim in
commit fraud. In Gilford Motor Co. Ltd v. Horne His Royal Highness Okpabi v. Royal Dutch Shell Plc
(Gilford Motor Co. Ltd v. Horne, 1933) this was done (2018) that claimants were not able to demonstrate
where a former employee sought to avoid the that a parent oil company owned a duty of care to
non-solicitation clause in his contract of the victims of leaks from the pipes owned by its
employment by operating through the vehicle of a subsidiary as part of a joint venture with certain
company (Jones v. Lipman, 1962; Re Darby, ex parte Nigerian companies. The regular changes of the law
Brougham, 1911). in this area significantly lower its predictability, to
The approach of the courts in the above cases the extent that some began to question whether the
was not based on any principles. When reaching previously accepted grounds for lifting the veil, such
their decisions the courts reviewed the as the promotion of justice, are still applicable
circumstances of each case individually and (Spotorno, 2018). Because of those limitations, it is
proposed justifications for their decisions which not hard to doubt whether the current unprincipled
were based largely on the judges‟ analysis of the approach to lifting the corporate veil in the UK
nature of the vehicle of a company embedded in the should be changed.
previous case law. For instance, in Daimler Lord
Parker justified the lifting of the veil in the “enemy 3. INDIVIDUAL RULES OR UNIFIED PRINCIPLES? –
trading” case by stating that “the acts of a PIERCING THE VEIL IN AUSTRALIA
company‟s organs, its directors, managers, secretary,
and so forth, functioning within the scope of their The approach to piercing the corporate veil in
authority, are the company‟s acts” (Daimler Co. Ltd Australia has been criticised by many for lacking a
v. Continental Tyre and Rubber Co. (Great Britain) principled basis (Anderson, 2009). As in case of the
Ltd, 1916). Similarly, in Gilford Lord Hanworth MR UK, it is possible to point out circumstances in

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which Australian courts have in the past decided to veil, the common law rules prior to codification
lift the veil. But in Australia, at least some of the resembled an extent the randomness of the current
rules in this area were codified, therefore increasing legal rules in this area in the UK. Despite this, the
the predictability of the law. For instance, company availability of the organic theory as well as the
directors might be required to pay a penalty agency principle granted the courts an opportunity
determined by the court if they contravened the civil to recourse to set guidelines when assessing whether
penalty provisions specified in Part 9.4B of the the corporate veil should be lifted in particular cases
Corporations Act of 2001 (Corporations Act of – even if such guidelines where not always clear.
2001). Similarly, several other statutes impose on The organic theory and the agency principle
company directors civil and/or criminal liability for were the only attempts of Australian courts to
actions related to taxation (Income Tax Assessment provide a more principled basis to their decisions.
Act of 1936), health and safety (Occupational Health Those attempts related strictly to situations
and Safety Act of 2000; Workplace Health and Safety involving lifting of the veil to impose liability on
Act of 1995; Occupational Health, Safety and Welfare directors. In other types of veil-lifting cases, no
Act of 1986; Occupational Health and Safety Act of principles were used in judges‟ decisions, although –
2004), trade practices (Trade Practices Act of 1974) similarly to the UK – it is possible to identify certain
and environmental protection (Environment situations in which the courts in the past decided to
Protection and Biodiversity Conservation Act of impose liability for the company‟s actions on
1999; Hazardous Waste (Regulation of Exports and individuals. For instance, Australian courts are eager
Imports) Act of 1989; Environment Protection Act of to pierce the veil in cases involving closely held
1997; Protection of the Environment Operations Act companies that is companies with one or two
of 1997; Waste Management and Pollution Control individuals who are both shareholders and directors
Act of 1998; Environmental Protection Act of 1994; (Freedman, 2000). The justification for such piercing
Environmental Management and Pollution Control is that in closely held companies shareholders
Act of 1994). Prior to the codification, the piercing of typically do not require limited liability in order to
the veil to impose liability on company directors was encourage them to invest in the company (Freedman,
determined by the so-called organic theory and the 2000). The courts were also prepared to lift the veil
principle of agency (Lennard’s Carrying Co. Ltd v. where the company committed fraud, in order to
Asiatic Petroleum Co. Ltd, 1915). According to the enable the involuntary tort creditor to obtain justice
theory, the actions of a director are perceived as (Freedman, 2000). However, none of the decisions in
actions of the company, since a company cannot act relation to closely held companies or corporate tort
or think by itself (Tesco Supermarkets Ltd v. were based on any specific principles. Rather, the
Nattrass, 1971; H L Bolton (Engineering) Co. Ltd v. T J judges focused on their reasoning on providing
Graham & Sons Ltd, 1957). However, the agency justice to the victims in the specific cases and, at
principle typically protects directors from liability best, considering policy consequences.
for the company‟s actions based on the assumption Finally, Australian law on lifting the veil
that they act as agents of the company which acts as between parent companies and subsidiaries is
the principal (Meridian Global Funds Management significantly clearer than the UK law in this area. The
Asia Ltd v. Securities Commission, 1995). The courts are only prepared to pierce the veil if the
question for the courts when deciding whether to vehicle of a corporate group was used for fraud or
pierce the veil is, therefore, whether the director as as a façade (i.e. to protect the parent company from
an agent committed any wrongful acts when acting a legal obligation), or where the control of the parent
on behalf of the company (Standard Chartered Bank company over the subsidiary‟s actions is sufficiently
v. Pakistan National Shipping Co., 2002). strong to conclude that the parent company is
The above distinction between the organic directly liable for actions of the subsidiary (Kluver,
theory and the agency principle was a tool used by 2005). Lack of any specific principles applicable in
the courts prior to codification in order to introduce such cases enables judges to consider the
a set of principles to this complex area of law. circumstances of each case individually, whereas the
However, the use of those „tools‟ was never presence of those loose guidelines on the previous
uniformly accepted by all courts, which is why the situations which justified veil-lifting ensures a
law in this area prior to codification remained certain degree of predictability of the law. Yet, the
unclear. For example, in Standard Chartered Bank v. presence of specific legal principles would empower
Pakistan National Shipping Co. (2002) Lord Hoffman the judges to make decisions in such circumstances
proposed that “just as an agent can contract on faster and more efficiently.
behalf of another without incurring personal
liability, so an agent can assume responsibility on 4. STRICT THEORIES AND CONSISTENT
behalf of another (…) without assuming personal APPROACHES – THE CASE OF THE US
responsibility” (Standard Chartered Bank v. Pakistan
National Shipping Co., 2002). Due to this dispute Contrary to the approaches taken by the courts in
between the courts on the nature of the agency the UK and Australia, the US courts approach the
principle and the role of the organic theory in problem of veil piercing from a more principled
assessing liability in veil-lifting cases, this area of perspective. There are two key theories applied by
law was not exactly based on clear principles. As the US courts in cases involving lifting of the
such, it was not until the law was codified that corporate veil: 1) agency theory and
company directors, legal professionals, and the 2) instrumentality/alter ego theory. The advantage
courts found the law more predictable and the rules for the judges of using such theories is that each
clearer. In that sense, despite the attempt of the theory contains a clear test composed of several
Australian courts to provide a more principled basis conditions which serve as guidance, allowing the
to the cases involving the lifting of the corporate judges – at least to an extent – to standardise

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decisions in all cases involving veil piercing. This, in and justice (Berkey v. Third Avenue Railway
turn, significantly increases the predictability of the Company, 1926)”.
law, although perhaps not quite to the extent that Despite the appeal of relying on one of the
such predictability is achieved through codification. above doctrines when deciding in veil-lifting cases
For example, the instrumentality/alter ego doctrine the US courts on occasion depart from those set
proposes that corporate veil can be pierced where principles, which could perhaps be seen as evidence
the factual circumstances indicate that a company is that even the principled approach to piercing the
a mere instrumentality, i.e. an alter ego of an veil requires a certain level of flexibility in order to
individual (People v. Clauson, 1964; Giblin v. Murphy, ensure justice. For instance, in Kinney Shoe Corp. v.
1983; United States v. Elgin Joliet & E. Ry. Co., 1936; Polan (1991) the sole owner of a company was
United States v. South Buffalo Ry. Co., 1948; United personally sued for the money outstanding on a sub-
States v. Milwaukee Refrigeration Transit Co., 1905). lease taken by that company. Although in theory, the
The doctrine includes the following three conditions existence of the corporate veil should have sheltered
which must be met in order for the veil to be lifted: the owner from the debts of the company, the
1) there is a unity of the interests of the shareholder judges decided to lift the veil due to the fact that the
and the company, 2) there was a wrongful or company never held any corporate meetings or
inequitable action taken by the company, and 3) the appointed any elected officers. The court decided
harm suffered by the party seeking to pierce the veil that the company was merely a „shell‟ for the
is a reasonably foreseeable result of the company‟s owner‟s actions, which could be deduced from the
action (Zaist v. Olson, 1967; Wholesale and Retail fact that simple standard corporate formalities were
Food Distribution Local 63 v. Santa Fe Terminal not preserved. In particular, Chapman J. opined that
Services, Inc., 1993). The first condition is satisfied separate legal personality of a company should be
where there is “such unity of interest and ownership ignored “when it is urged with an intent not within
that the separate personalities of the corporation its reason and purpose, and in such a way that its
and owners cease to exist” (Dietel v. Day, 1972; retention would produce injustices or inequitable
Employer’s Liability Assurance Corp., Ltd. v. John H. consequences” (Kinney Shoe Corp. v. Polan, 1991).
Barr, John H. Barr Marketing Company, and Tom The reasoning of Chapman J. in Kinney strongly
Barr, Appellants v. Heaton LUNT and Virgil Lunt, resembles the reasoning of the UK courts in cases
copartners dba Heaton Lunt & Son, Appellees, 1957; involving the use of a company as a fraud, including
Gatecliff v. Great Republic Life Ins. Co., 1991; Walker Gilford. The fact that Chapman J. considered it
v. Southwest Mines Dev. Co., 1938; Great Am. Duck necessary to step away from the agency and the
Races, Inc. v. Intellectual Solutions, Inc., 2013), instrumentality/alter ego theories highlights the
whereas the second condition is met where importance of allowing the courts to follow a more
“upholding the corporate entity and allowing for the flexible approach to veil-piercing, particularly in
shareholders to dodge personal liability for its debts cases where following a traditional doctrine would
would sanction a fraud or promote an injustice” lead to injustice. Therefore, perhaps a combination
(Automotriz del Golfo de California v. Resnick, 1957). of the „laissez-faire‟ approach used by the courts in
The application of the above rules provides the the UK and Australia as well as the principled
courts with a structure for their decision-making approach of the US courts would ensure that veil-
that unifies and standardises the reasoning of the piercing cases are always decided both efficiently
courts behind their decisions related to lifting the and fairly.
corporate veil. Equally, it enables judges to consider
the individual circumstances of each case when 5. LESSONS FOR THE FUTURE – BEST PRACTICES
applying the conditions in the test. Yet, the presence FROM THE THREE JURISDICTIONS
of a standardised common law test posits certain
challenges that are typically addressed by the law of The subject of piercing of the corporate veil has in
equity, i.e. the potential that in some situations the the past attracted significant attention from the
strict application of the rules might render an unjust academic world in different countries due to the
decision. Still, the application of equitable principles overall lack of clear rules which would prescribe
is not always available and, given that litigations when this remedy should be granted by the courts.
involving the lifting of the corporate veil are the Lifting of the veil is an equitable remedy that is used
most popular commercial litigations in the US, this at the courts‟ discretion. However, the lack of clear
exposes many parties to potential injustice. rules on when the courts can do so in the three
Nevertheless, in cases where the application of the jurisdictions discussed earlier in this paper
instrumentality/alter ego theory is not sufficient to constitutes a major setback of the commercial legal
ensure a fair outcome of the case, recourse to the justice system. The existence of a separate legal
agency theory might fulfil that purpose. In personality of a company has significant “overall
particular, the agency theory formulated in the case benefits to society and constitutes a justifiable and
of Berkey v. Third Avenue Railway Company (1926) desirable feature of corporate and tort law”
proposes that the veil should be lifted in (Bergkamp & Pak, 2001). As such, the decision of the
circumstances where “the dominion may be so courts to lift the veil should be based on well-
complete, interference so obtrusive, that by the formulated rules which would provide the judges
general rules of agency the parent will be a principal with clear guidance on when the veil should be lifted
and the subsidiary an agent” (Berkey v. Third Avenue as well as a certain level of flexibility to depart from
Railway Company, 1926). Although this formulation the rules where they would clearly produce injustice.
of the agency theory appears to be clear, the courts It is difficult to imagine that this effect can be
have over the years disputed its application in cases achieved through the common law, regardless of
where control is less obtrusive, instead of whether the courts would rely on pre-existing
encouraging the application of the tests on “honesty doctrines or principles in making their decisions.

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The existence of such doctrines or principles cases in three jurisdictions: the UK, Australia, and
provides the courts with a uniform test which they the US. The above discussion revealed that the UK
can apply in veil-piercing cases, which significantly and Australian courts use a similar approach to
increases the predictability of the law in this area. piercing the corporate veil, whereby the
This is clearly required in order to ensure a stable circumstances of each individual case are reviewed
and prosperous business environment within the by the judges with the aim of identifying whether it
state. However, the doctrines established in the US would be fair and just to lift the veil in that
might not be easily replicated in the UK or Australia, particular case. In addition, the Australian
neither are they completely effective in ensuring the parliament codified several key provisions with
smooth operation of the law, given the need of the regards to lifting the veil to impose liability on
courts to depart from them in cases such as Kinney. company directors, which significantly increased the
Perhaps the most effective way to achieve this predictability of the law in this area. However, the
aim in the three jurisdictions would be through the largely unprincipled approach used by the courts in
codification of the law, in the same manner, that the both jurisdictions contributes to significant
Australian parliament codified the rules on piercing complexity and confusion in this area of law. The
the veil to impose liability on company directors. approach adopted by the US courts involves reliance
Such an approach would undoubtedly be on two key doctrines: the agency doctrine and the
significantly easier to implement in the US where the instrumentality/alter ego doctrine which provides
courts have already set out the veil-piercing theories. the judges with tests applicable to various types of
The standardisation of this area of law in all three cases involving piercing of the corporate veil. Such
countries should be considered of high importance an approach is more efficient and predictable than
given the number of cases considered by the courts the unprincipled approach applied in the UK and
in commercial disputes every year. Moreover, leaving Australia, but it is not without limitations. Decisions
this area without codification poses the risk that it such as that in the case of Kinney demonstrate that
will become even more complex if the courts the application of even the most advanced theories
continue changing their approaches to veil-lifting in in this area cannot guarantee a just result of the
the future. The setting out in the legislation of even case due to the complexity of some of the cases
the most basic rules on veil piercing would prevent involving limited liability. It is recommended that
that process by encouraging the courts to work the codification of the law in this area would
within the prescribed boundaries of the statutory constitute a significant improvement of commercial
provisions. Equally, it could prevent veil-lifting cases law in all three jurisdictions. However, the codified
from arising in the first place by clearly informing rules would have to be formulated in a manner that
company shareholders and directors of the would allow the courts for certain departures from
consequences of certain wrongful actions that they the set rules where the interests of justice would
could potentially commit on behalf of the company require it.
for their personal finances. In other words, putting It is clear from cases and academic studies that
relevant legislation in place would act as a deterrent the law relating to piercing the veil is insufficient
for the individuals or corporate entities behind the and disoriented. As well, corporate lawyers have
company, therefore increasing the security of any exercised much effort in trying to figure out the
creditors in cases involving lifting of the veil to instances in which a court can pierce the corporate
impose financial liability on an individual or a parent veil (Prest v. Petrodel Resources Ltd, 2013). It is
company. Codification is particularly important with undoubtedly said that a regulatory reform needs to
regards to cases involving lifting the veil to impose consider the effectiveness of the current liability
liability on parent companies in order to emphasise imposed on the limited liability of a company.
the importance of corporate groups taking However, having an accountability mechanism for
responsibility for their subsidiaries. Due to the misconduct or malpractice of separate legal
increasing growth of multi-national corporate personality is imperative for the maintenance of
groups with significant powers, the position of public confidence and prosperity in the business.
corporate employees is progressively worsening. For that reason, it is important to hold the persons
Codification is particularly necessary in order to entrusted with market regulation accountable and be
avoid the confusion in tort cases involving able to discipline them if the need arises. It
employees, such as that present in the UK cases of recommended that academic researchers have an
Adams and Chandler. important role to support regulators in order to
implement effective enforcement strategies
6. CONCLUSION (Tomasic, 2001) Hence, the law should strongly
interfere in the corporate veil of the company‟s
Piercing the corporate veil continues to be a limited liability to provide protection for all involved
protective measure against the abuse of separate parties from unfair practices. Equally important, the
legal personality. In other words, it can be need for on-going research and studies is significant
considered as one of the legal responses to the in order to find out the best applicable approach
potential abuse(s) of limited liability. This paper that can be applied in corporate veil-piercing and
compared the reasoning of the judges in veil lifting develop laws in this area.

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