Equal Treatment Of Shareholders Research Articles

Rebuilding the Principle on Equal Treatment of Shareholders

주주평등원칙이란, 회사가 주주와의 법률관계에 있어서 주주가 가진 주식 수에 따라 평등한 취급을 해야 한다는 법리를 의미한다. 판례는 주주평등원칙을 회사와 주주 간 법률관계 전반에 걸쳐 광범위하게 적용하고 있고, 회사가 다른 주주에게는 인정되지 않는 우월한 권리나 이익을 특정 주주에게 제공하거나 이를 약속할 경우 그 제공 행위는 물론 약정까지도 효력을 상실시키는 강력한 법원칙으로 운용하고 있다. 주주평등원칙은 주주의 비례적인 주주권 행사와 관련하여 상법이 명확한 규정을 두고 있지 않는 경우 그 공백을 채워 넣는 긍정적인 기능을 수행하지만, 판례가 택하는 주주평등원칙은 투자 유치 등을 위해 특정주주에게 권리나 이익을 부여하는 것이 회사나 전체 주주의 이익에 부합하는 경우에도 이를 기계적으로 무효화시킨다는 점에서 그간 비판을 받아 왔다. 특히 2021년에는 투자계약에서 많이 활용되는 투자자의 사전동의권을 하급심이 주주평등원칙 위반을 이유로 무효로 본 반면, 지배주주의 각종 기회주의적 행동에 대해서는 막상 상법이 소액주주 보호 역할을 제대로 수행하지 못한다는 비판의 목소리가 커지면서, 주주평등원칙에 대한 판례의 입장이 과연 타당한지에 대한 문제의식이 커졌다. 본 논문은 주주평등원칙을 발전적으로 해체하고 재정립할 필요가 있음을 주장한다. 판례의 입장은 ① 주주인지 채권자인지에 따라 기계적으로 적용 여부를 결정한다는 점, ② 특정 주주에게 권리나 이익을 부여하는 것이 회사나 다른 주주들에게 제공하는 이익을 고려하지 않는다는 점, ③ 절차적 평등만 준수하면 결과적, 실질적으로 주주의 비례적 이익이 침해되더라도 이를 용인한다는 점, ④ 위반 시 회사법적 행위는 물론 당사자간 약정까지 효력을 상실시킨다는 점, ⑤ 해당 사안에 우선적으로 적용될 수 있는 구체적인 규정이 존재하는 경우에도 적용 범위가 모호한 주주평등원칙을 적용하여 예측가능성을 낮춘다는 점에서 변화가 필요하다. 주주평등원칙은 “주주는 회사와의 법률관계에서는 그가 가진 주식의 수에 따라 평등한 취급을 받아야 한다”는 판례의 정의를 출발점으로 삼아, 회사의 특정 주주에 대한 권리나 이익 부여가 다른 주주들의 주주권을 침해하는지 여부에 따라 그 법률 효과를 다르게 취급하는 형태로 재정립되어야 한다. ① 만일 회사가 특정 주주에게 우월한 권리나 이익을 부여하여 의결권이나 배당청구권과 같은 다른 주주들의 주주권이 침해되었다면 이에 대한 나머지 주주들 전원의 동의가 없는 한 주주평등원칙위반으로 그 효력을 상실시키는 것이 타당하다. ② 반면 이로 인하여 회사 이사회나 대표이사의 권한이 제한될 뿐 다른 주주들의 주주권이 직접적으로 침해되지 않고 다만 그 보유 주식의 가치가 하락한 경우라면 이를 무효로 하기보다는 주주의 비례적 이익을 고려하지 않은 회사 이사의 선관주의의무 위반 및 손해배상책임 문제로 접근하는 것이 타당하다. 그리고 이때의 심사기준은 회사가 주주들을 기계적으로 평등(equal)하게 대우하였는지가 아니라, 주주들을 공정(fair)하게 대우하였는지가 잣대가 되어야 한다. 본 논문은 주주평등원칙에 대한 판례의 태도를 심층적으로 분석하여 이를 발전적으로 해체하고, 주주권 침해 여부라는 기준에 따라 재정립하여 실무에서 실제 사안 해결에 활용할 수 있는 지침을 제공하였다는 점에서 의미를 갖는다.

General Principles of EU Corporate and Insolvency Law

Over more than forty years, the European Union (formerly the European Community) has enacted a large number of directives aimed at harmonising company law rules across Member States. Nevertheless, differences across Member States persist with regard to company law rules. Member States’ regimes share a core of fundamental features: shareholders are not liable for the company's debts; companies have a separate legal personality; and the capital investment is commodified through the vehicle of freely disposable shares. Beyond these fundamental elements, it is more uncertain whether other general principles, having legal relevance, exist throughout the EU. By looking at national company law regimes and EU harmonising directives, this work has isolated only two principles that seem sufficiently general, common, and fundamental. The first principle is the unrestricted powers of directors to act on behalf of the company: this principle is based upon the German tradition and has been extended to public companies of all Member States by the First Company Law Directive of 1968. The second principle is equal treatment of shareholders who are in the same condition: this is a general duty that all companies’ bodies should respect when they make decisions that affect shareholders. Such a principle, however, is not a rigid equality rule, as differentiated treatment might still be justified in the interest of the company. However, its status within case-law of the European Court of Justice it is still unclear: on the one hand, the Court has denied that this duty is a general principle of EU law, with the consequence that it only applies within the scope of the specific provisions entailing this rule; on the other hand, other decisions of the Court seem to follow an opposite logic. Concerning insolvency law, it is much more controversial whether general principles exist within the EU legal order. Insolvency proceedings are country-specific, as most of their rules have a re-distributive impact on a broad range of stakeholders of the company, such as employees, creditors, and customers. Therefore, insolvency regimes are strictly related to political balances and national social security policies. The only common denominator of Member States insolvency regimes seems to be the duty to treat creditors equally and respect pre-insolvency entitlement and creditor ranking. Nevertheless, there is also an intricate web of exceptions to this principle, which vary broadly across jurisdictions and aim at protecting specific classes of creditors.

The Chain Principle: Equilibrium Between a Regulatory Need and Its Effects

This article addresses the tension between the need to regulate takeovers activity through the chain principle, as to ensure minority shareholders protection and equal treatment of shareholders, and the adverse effects that may arise from that regulation. An explanation of how the chain principle is regulated in the United Kingdom and difficulties in applying the chain principle rules, particularly, to ascertain the chain price. Different possibilities Germany is offered and the Sky bid is presented as an example of the practical of how the chain principle could be designed are considered, namely regarding the most suitable method to ascertain the chain price and the most adequate entity to do it. The article ultimately concludes that the chain principle is a regulatory need because the mandatory bid rule could not be successfully achieved without the chain principle and that there is no perfect solution to find an equilibrium between the need to regulate the chain principle and its adverse effects, as rules enhancing the probability of an offer being made may have a negative impact on the premium value; while rules enhancing the premium value may have a negative impact on the probability of an offer being made. chain principle, mandatory bid, cascade offer, takeover regulation, minority shareholders protection, equal treatment of shareholders, market for corporate control, control, significance test, premium value

Report from the Netherlands: Recent Developments with Respect to Company Law in the Netherlands

chain principle, mandatory bid, cascade offer, takeover regulation, minority shareholders protection, equal treatment of shareholders, market for corporate control, control, significance test, premium value

Doxa of Shareholders and Owners: On the Threshold of Financialization

AbstractFollowing financialization, there has emerged an understanding of what it implies to be a shareholder based on the shareholder value perception. However, as this shareholder value perception spreads internationally, it clashes with traditional perceptions. In this paper, we apply the language developed by Bourdieu to a Swedish public debate on equal treatment of shareholders in connection with the reform of the Swedish market for corporate control. Using Bourdieu’s conceptual framework, we describe how a global development interacts with the persistence of national practices. We conclude that in Sweden, local institutional investors have allied themselves with international institutional investors to enhance their positions in the restricted field of Swedish corporate control. Shareholder value is then used by these local actors as an argument to strengthen their position. At the same time, some of the controlling shareholders depart from their traditional position as industrial entrepreneurs and embrace a more financial approach to ownership, thereby altering both the power constellations and the capital, in Bourdieu’s sense, of the field.

The Shareholderss Duty Not to Abuse Rights

The Shareholderss Duty Not to Abuse Rights

On the Principle of the Equal Treatment of Shareholders by utilizing the Class Shares

On the Principle of the Equal Treatment of Shareholders by utilizing the Class Shares

Implementation of corporate governance standards for company growth and development

Corporate Governance Standards (standards of corporation management) provide good grounds for effective implementation of key management principles, exercise of shareholders' rights and their equity stakes, equal treatment of shareholders, appropriate role of all other stakeholders in the manner of governance of a corporation, disclosure and transparency of information on company operation and appropriate role and responsibility of the boards established within the company. These standards are established on the basis of the Principles of Corporate Governance adopted by the Organization for Economic Cooperation and Development (OECD), and they are generally intended for use by developed corporations with a significant dispersion of ownership. Nevertheless, implementation of corporate governance standards was introduced also in the territory of Bosnia and Herzegovina, although in recent years, its capital markets (Sarajevo and Banja Luka) have been mainly trading in (short-term and long-term) debt securities issued by the Entity governments and, to a much lesser extent, in equity securities of incorporated state-owned enterprises. The aim of this paper is to show that implementation of corporate governance standards provides greater transparency in the operation of domestic listed companies, as well as a higher level of alignment of the domestic regulatory framework with the principles applied in the developed economies. This makes the domestic economic space more attractive for foreign investors, which implies that corporate governance standards directly support the growth and development of domestic companies and the economy as a whole. Basic scientific methods used to research the described issues include analysis methods (primarily the level of implementation of corporate governance standards in the country and its neighborhood), synthesis (in order to form conclusions about the effects of the attained corporate governance level) and comparison of solutions present in the practice of corporate governance in Bosnia and Herzegovina with the modalities present in its neighboring countries.

10.5937/zrpfns48-6669 = Equal treatment of shareholders

Equal treatment of shareholders is regulated in Art.269 of Company Act (2011) of Republic of Serbia. Equal treatment of shareholders means that all shareholders are to be treated equally under same circumstances. Obligation to treat all shareholders equally rests on all company bodies, predominantly general meeting. The standard whether an action violates the principle of equal treatment of all shareholders regarding the main rights of shareholders (such as voting right etc.) is the nominal value of shares, or the equal treatment per person regarding ancillary rights (such as right to speak in shareholders' meeting etc.). Any action deviating from this standard is unlawful if the unequal treatment is not justified on the facts. If the principle of equal treatment is violated by general meeting resolution, such resolution may be annulled by the court.

Higher Dividends (for Minorities) or Equal Treatment (of All Holders): What Do Financial Markets Like More?

Article 127-c TUF (Italy) - introduced by Legislative Decree of January 27, 2010, No 27 - permits that, notwithstanding Article 2350, paragraph 1, Italian Civil Code (stating that dividends must be distributed on a pro rata basis), articles of association of listed companies provide for a higher dividend to a shareholder who: a) has not exercised either directly, or through shareholder agreements, control or a dominant influence over the Company; b) may show continued holding of the Company’s stake for a certain period of time to be determined by the articles, but not less than one year. The higher dividend: c) cannot exceed 10% of the ordinary dividend paid to other shareholders (of the same class); d) may benefit shareholders who do not have holdings in excess of 0.5%, or a lesser amount specified in the articles; in case of holdings greater than 0.5%, the bonus can be paid only within such percentage. A similar rule is provided for in Germany (§ 60 AktG).The higher dividend rule can be appreciated - at least at first sight - as a reward for non-controlling shareholders to keep their investment, thus an incentive for non-speculative investment in listed companies. The same rule expressly makes an exception to the national rule (Article 2350, paragraph 1, Italian Civil Code) requiring compliance to the internationally renowned principle of pro rata sharing. The principle of equal sharing is considered a fundamental tool in corporate law, acting as a reward strategy which grants that agents (directors, or majority shareholders) do act in the interest of principals (all or minority shareholders) (Armour, Hansmann and Kraakmann). Some studies attempt to establish from the same argument a broader principle of equal treatment of shareholders (Brudney). This paper addresses the issue of whether it makes sense in an economic perspective to offer incentives to enhance stability of non-controlling shareholders in listed companies. Further, it analyzes the relevance of the higher dividend rule in light of both the pro rata sharing and the equal treatment rules: if the interests of some are better-off, those of others may be worse-off. Reasoning leads to understand whether financial market would prefer the higher dividend rule being opted in by the articles of listed companies, or would they better prefer equal sharing/equal treatment rules of all holders being kept. Also, the paper draw attention to the issue as to whether a similar rule could be foreseen in articles of non-listed companies, too.

Equal treatment of shareholders and European Union law Case note on the Decision “Audiolux” of the European Court of Justice

The European Court of Justice has recently issued a decision on the existence of a general principle of equal treatment of minority shareholders upon a transfer of control. According to the plaintiff, from certain specific acts of EU law (such as, among others, the mandatory bid rule provided for by the Takeover Directive) could be inferred the existence of a principle, according to which the person who purchases the control of a company should then offer to all other shareholders the same opportunity to sell their shares. The ECJ denied that such a principle can be inferred from specific provisions of derivative EU law beyond their scope of application. In addition, the ECJ has put in clear words that, in order to impose to the acquirer of corporate control a duty to purchase all outstanding shares, a specific legislative decision is required, with the aim to weight all involved interests.

Loyalty Dividend and the EC Principle of Equal Treatment of Shareholders

In this contribution Lennarts and Koppert–van Beek discuss two court decisions in the Netherlands on the plans of DSM corporation to introduce a so–called loyalty dividend for shareholders. The discussion takes place against the background of the principle of equal treatment of shareholders.

Testing share repurchases hypotheses: a conditional study

In the past 20 years share buybacks have experienced a tremendous growth. Yet, we still don’t have a clear understanding of this phenomenon, also because of limited samples available on these corporate decisions. This paper aims at testing the main hypotheses on buybacks drivers and effects by analyzing the impact of share repurchase announcements on the performance of companies listed on the Italian Stock Exchange, conditional and unconditional on the 1998 introduction of the Capital Market Reform. Our findings show that, by imposing more stringent rules on transparency and equal treatment of shareholders in buybacks operations, the change in regulation has increased the volume and frequency of share repurchases announcements. Analogously, the number of repurchasing companies has soared as well. Finally, market reaction to buybacks, as measured by abnormal returns and cumulative abnormal returns has consistently reversed switching from negative to positive long term CARs

Report of the High Level Group of Company Law Experts on Issues Related to Takeover Bids in the European Union

This document constitutes the High Level Group of Company Law Experts' first report, in conformity with the Group's terms of reference which were defined by the European Commission on 4 September 2001. The Group has been set up by the European Commission to provide independent advice in the first instance on issues related to pan-European rules for takeover bids and subsequently on key priorities for modernising company law in the European Union. The Group has been asked to consider the following three issues: - How to ensure the existence of a level playing field in the European Union concerning the equal treatment of shareholders across Member States; - The definition of the notion of an equitable price to be paid to minority shareholders; - The right for a majority shareholder to buy out minority shareholders (squeeze-out right). An important goal of the European Union is to create an integrated capital market in the Union by 2005. The regulation of takeover bids is a key element of such an integrated market. Currently there are many differences between the various Member States, in terms of such general and company specific factors. Annex [4] gives an overview of company specific barriers to takeover bids which are lawful or actually applied in the Member States and which the Group has reviewed.... This is what is generally referred to as the 'lack of level playing field' in the area of takeover bids in the European Union. In the light of available economic evidence the Group holds the view that the availability of a mechanism for takeover bids is basically beneficial. Takeovers are a means to create wealth by exploiting synergies and to discipline the management of listed companies with dispersed ownership, which in the long term is in the best interests of all stakeholders, and society at large. These views also form the basis for the Directive. This is not to say that takeover bids are always beneficial for all (or indeed any) of the parties involved. The mandate of the Group is to review whether and to what extent a level playing field for takeover bids should be created under company law in Member States. The Group acknowledges that any approach on this basis would leave the various general differences existing in Member States untouched. It believes, however, that its recommendations with respect to company law mechanisms and structures would, in addition to market driven changes, mark an important step forward in developing a general level playing field for takeover bids in the European Union. The Group believes that any European company law regulation aimed at creating a level playing field for takeover bids should be guided by two principles: 1. Shareholder decision-making In the event of a takeover bid the ultimate decision must be with the shareholders. They should always be able to decide whether to tender their shares to a bidder and for what price. It is not for the board of a company to decide whether a takeover bid for the shares in the company should be successful or not. This is not to say that the board has no responsibility at all in the context of a takeover bid. It is sometimes argued that allowing the board to frustrate a takeover bid can be justified as a means to help take into consideration the interests of shareholders and other stakeholders in the company, notably the employees. The Group rejects these views. Defensive mechanisms are often costly. Most importantly, managers are faced with a significant conflict of interests. Shareholders should be able to decide for themselves and stakeholders should be protected by specific rules (e.g. on labour law or environmental law). 2. Proportionality between risk-bearing capital and control In the Group's view, proportionality between ultimate economic risk and control means that share capital which has an unlimited right to participate in the profits of the company or in the residue on liquidation, and only such share capital, should normally carry control rights, in proportion to the risk carried. The holders of these rights to the residual profits and assets of the company are best equipped to decide on the affairs of the company as the ultimate effects of their decisions will be borne by them. This report will use the term 'risk-bearing capital' to refer to this concept. The holder of the majority of risk-bearing capital should be able to exercise control. Capital and control structures in a company which grant disproportionate control rights to some shareholder(s) should not operate to frustrate an otherwise successful bid for the risk-bearing capital of the company. The concept of risk-bearing capital used here does not include those preference shares which have no exposure to the surplus but only carry a limited right to distributions of profits and on liquidation.

Equal Treatment of Shareholders in Corporate Distributions and Reorganizations

Equal Treatment of Shareholders in Corporate Distributions and Reorganizations

Equal Treatment of Shareholders in Corporate Distributions and Reorganizations

Equal Treatment of Shareholders in Corporate Distributions and Reorganizations