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Objective to Subjective Test: Piercing the Veils of Corporate Members in Companies Groups

  

  However, from an economic point of view, what should be borne in mind is that the integrated business strategy in a company group which aims to maximize the interests of the company group as a whole, or more commonly speaking, of the parent company, at the cost of subsidiary, seems to be a main reason why the subsidiary is established. Even in conglomerate group, i.e. groups of diversified business[5], the advantages of common business are obvious such as access to cheaper resources of production supplied by a subsidiary. Therefore, no illegality can be found even partly the interests of the subsidiary have been sacrificed for the benefits of group as a whole. Nor the outside bona fide parties to subsidiaries are left naked without protection since the subsidiaries are set up lawfully with adequate capitalization and apparent information disclosure. Otherwise, adoption of single unit argument is likely to put the shareholder of the subsidiaries in a difficult situation.


  

  Then, if the argument I advanced from the economic aspect had been wrong, we can, along with the alerting remarks of Goff LJ in Bank of Tokyo Ltd v Karoon [1987][6], go to the legal point of view, ''the concept of group as a single economic entity found no support as an independent basis on which the corporation veil might be lifted.''[7] The law will not concentrate upon the economically functional organization of a group; as for judges, the holding company is some kind of artificial shareholder, same as a natural citizen to a limited company, to the subsidiary. As a consideration at the process of discretion of the judge, the business realities do make influences, nevertheless only to an unimportant extent which finally always turn to ''the wording of particular statutory or contractual provisions''.[8] As the Court in Cape said, ''To the layman at least the distinction between the case where a company trades itself in a foreign country and the case where it trades in a foreign country through a subsidiary, whose activities it has power to control, may seem a slender one.'' The judges'' sympathy, possessing an obvious feature, with the claimants'' single entity argument, simultaneously shows two sides of a coin: the non-application of the argument on an independent basis as well as the fact that it did influence His Lordship[9]. Therefore, it was criticised by the House of Lords in Woolfson v Strathclyde DC.[10] It has to be admitted that ''the wording of a particular statute or document may justify the court in interpreting it so that a parent and subsidiary are treated as one unit at any rate for some purpose. However, beyond that it was unwilling to go.''[11]



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