Nordic & European Company Law Working Paper Series最新文献

{"title":"Sustainable Value Creation Within Planetary Boundaries—Reforming Corporate Purpose and Duties of the Corporate Board","authors":"Beate Sjåfjell","doi":"10.3390/su12156245","DOIUrl":"https://doi.org/10.3390/su12156245","url":null,"abstract":"Business, and the dominant legal form of business, that is, the corporation, must be involved in the transition to sustainability, if we are to succeed in securing a safe and just space for humanity. The corporate board has a crucial role in determining the strategy and the direction of the corporation. However, currently, the function of the corporate board is constrained through the social norm of shareholder primacy, reinforced through the intermediary structures of capital markets. This article argues that an EU law reform is key to integrating sustainability into mainstream corporate governance, into the corporate purpose and the core duties of the corporate board, to change corporations from within. While previous attempts at harmonizing core corporate law at the EU level have failed, there are now several drivers for reform that may facilitate a change, including the EU Commission’s increased emphasis on sustainability. Drawing on this momentum, this article presents a proposal to reform corporate purpose and duties of the board, based on the results of the EU-funded research project, Sustainable Market Actors for Responsible Trade (SMART, 2016–2020).","PeriodicalId":202300,"journal":{"name":"Nordic & European Company Law Working Paper Series","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127345254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Redefining Agency Theory to Internalize Environmental Product Externalities. A Tentative Proposal Based on Life-Cycle Thinking","authors":"Beate Sjåfjell","doi":"10.1017/9781108500128.005","DOIUrl":"https://doi.org/10.1017/9781108500128.005","url":null,"abstract":"This chapter challenges the shareholder focus of the mainstream use of agency theory, and explores the possibility of redefining agency theory. The aim is to investigate the potential of internalizing environmental externalities of products, although much will be relevant also to social and economic issues. \u0000This chapter deals with the corporation, the dominant legal form of doing business, including the development of new products, and of manufacturing and marketing them. Recent research has given us some insight into why corporations in aggregate behave in such an unsustainable way. The reductionist approach of the Chicago School of law-and-economics in this field has served to promote the detrimental social norm of shareholder primacy, where the primary – even the only – goal of corporations is to maximize returns for shareholders. The influence of these ideas and the legal myths they have contributed to creating, of corporations as the property of shareholders and profit maximization as the legal duty of boards, can hardly be overestimated. \u0000Agency theory, which in its mainstream version is one of the dominant theories underpinning much of the current understanding of corporate law and corporate governance, has value beyond its current mainstream use. In the current situation, however, agency theory, in the dominant but rather limited and overly shareholder-focused variant, lends support to the social norm of shareholder primacy, which encourages the externalization of environmental and social impacts. \u0000Redefining agency theory for corporate law, as a tentative proposal for an analytical tool to find out how to internalize the environmental externalities of products, is a response to these concerns. \u0000After the introduction, the chapter explaining the usefulness of agency theory in analysis of corporate law, and then discusses the problematic nature of the mainstream use of agency theory in this context. A tentative proposal for redefining agency theory is presented, before the chapter concludes with reflections on the necessity of such a new approach in the context of the convergence of crises that we face.","PeriodicalId":202300,"journal":{"name":"Nordic & European Company Law Working Paper Series","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114529996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pursuing CSR Policy in Groups of Undertakings – Insights from the Practices of Danish Groups","authors":"D. Szabó, K. Sørensen","doi":"10.2139/ssrn.2871030","DOIUrl":"https://doi.org/10.2139/ssrn.2871030","url":null,"abstract":"The first part of the paper briefly analyses how different CSR frameworks expect groups of undertakings to pursue their CSR policies. Several CSR frameworks as well as reporting laws, such as the recently adopted Non‐financial Reporting Directive (Directive 2014/95/EU), either presuppose or at least encourage that groups of undertakings should have a group policy. In addition, these instruments support the implementation of such policies throughout the group. Thereby they are essentially recommending increased control and monitoring within the group by the parent company, in order to ensure that parent companies, usually located in developed countries with higher environmental and social standards, are also driving compliance with the policies in the subsidiaries in jurisdictions with less developed legal systems.This approach is not without problems, which we examine in the second part of the paper. Firstly, the information needed for preparing consolidated reports may not be readily available, and it may be problematic to collect them from the subsidiaries. Secondly, regulation is normally not done with the specific aim of promoting integration within the group; quite the opposite: group law aims to protect legitimate interests that are suppressed in cases where the group is integrated. Implementing a group policy may therefore prove to be difficult, and even if it proves successful, it may trigger unwanted consequences, the ultimate one being that the parent company becomes liable for the violations of the group policies inflicted by the subsidiaries.The third part of the paper examines the practices of groups of undertakings navigating this narrow path between satisfying stakeholder expectations and incurring the unforeseen legal consequences of exercising control. We conduct this research by analysing consolidated management reports, consolidated non‐financial reports, and group CSR policies. We have chosen Danish groups for the analysis, because the Danish mandatory CSR reporting requirement, very similar in structure and requirements to the Non‐financial Reporting Directive, has for long been in effect in Denmark. In addition, Danish groups of undertakings have also been encouraged to accede to and comply with international CSR frameworks, which are also generally recommending the implementation of group policies. We investigate if the groups of undertakings have policies in place covering the behaviour of the entire group and dealing with one or more aspects of CSR. If they do have such policies in place, we further investigate how they are addressing intra‐group compliance mechanisms in their reports or policies. More specifically we examine to what extent they use reviews, whistle-blowing arrangements and structures to underpin the compliance throughout the group.Finally, the last part of the paper evaluates which of the practices adopted by the companies examined are likely to avoid the regulatory challenges pointed out in section two ","PeriodicalId":202300,"journal":{"name":"Nordic & European Company Law Working Paper Series","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117317483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Two Lessons in Company Law for Europe - The Scandinavian Experience of Harmonisation","authors":"J. Andersson, F. Westman","doi":"10.2139/ssrn.2151214","DOIUrl":"https://doi.org/10.2139/ssrn.2151214","url":null,"abstract":"The Scandinavian countries have traditionally cooperated in different legislative areas, although lately to lesser extent. One of the most important examples is the Contract Law in Denmark, Norway and Sweden from the early 20th century. Less well known is the cooperation in company law, which took place over a long period of time, resulting in similar company laws in Denmark, Finland, Norway and Sweden in the 1970-ties. While these laws showed a high degree of uniformity, the initially intended very high degree of uniformity was never obtained. More recent company laws have less similarity, but are still influenced by the laws from the 1970-ties.The experience in the Scandinavian countries illustrates particularly well the problems related to harmonisation of company law. Although the difficulties were alleviated by the fact that the program took place on small scale, with few countries involved, and with large similarities in cultural, social and political environment, did hardship several times turn set goals into dreams. The EU with its current 27 Member States and their differences, in similar aspects, have faced and will continue to face far greater problems in harmonising company law, as well as other areas of law. Some of those difficulties can be addressed easily, some may not be addressed that easily. We think that knowledge of the Scandinavian countries and their history in this respect can provide some guidelines for possible solutions for harmonization. Despite the cooperation in company law, the Scandinavian countries have adopted different regulatory strategies because of political and other factors. Significant differences have occurred in the extent and type of regulation used, but also between those countries that use one law for the regulation of companies and those that use, or have used, two laws for the regulation of companies.Over time the Scandinavian countries have illustrated several legal strategies for company regulation. We believe that the Scandinavian countries and their use of different regulatory strategies are interesting examples in the making of law. It is the intention of this article to test the rationality of the Scandinavian legislators’ strategies, whereby smaller companies are regulated. In section C, we will present the solutions taken by the Scandinavian legislators, in a historical perspective and reflect these against the Theoretical Optimal Solution presented in the next section B. It is the further intention to discuss different strategies for achieving harmonization of company laws, as such strategies have affected company laws of the Scandinavian countries.","PeriodicalId":202300,"journal":{"name":"Nordic & European Company Law Working Paper Series","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125724300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Minority Shareholder Protection in SMEs: A Question of Information Ex Post and Bargaining Power Ex Ante?","authors":"J. Andersson","doi":"10.2139/ssrn.1716828","DOIUrl":"https://doi.org/10.2139/ssrn.1716828","url":null,"abstract":"SMEs or, as they are called here, ‘close corporations’, differ in many respects from publicly traded companies. Shares in publicly traded companies have a regulated market which shares in SMEs do not have. Since there is no regulated market for the shares there is usually a lock-in effect in the sense that, in the absence of contractual terms or rules in company law or in the articles of association, (minority) shareholders cannot sell their shares because of the lack of a market or at least they cannot sell them on ‘fair terms’. Furthermore, I suggest that the historical theoretical assumption behind most of the rules in company law in general on protection of the minority is that minority shareholders should only have protection equivalent to their share of the voting rights and/or capital in the company. However, for efficiency reasons, I believe that most minority rules based on this assumption fail to achieve their purpose, namely the protection of the minority in close corporations. The reason for this is that any minority protection based on proportional protection will put the minority shareholders in a relatively weaker position than the proportional rights of those shareholders. To achieve the intended minority protection, I believe the following two conditions have to be met. First, where a particular transaction or event discriminates against a minority shareholder (or shareholders), protection for minority shareholders can only be achieved after the transaction or event, and only if the minority shareholders have access to information equal to or at least similar to a hypothetical perfect market situation (a perfect information position). Second, minority shareholders who do have access to information equal to or at least similar to a hypothetical perfect market situation will be in a bargaining position based on the same information. However, even with this information, minority shareholders will be at a bargaining disadvantage vis-a-vis majority shareholders. The reason is that the position of a minority shareholder in a close corporation, as reflected in the minority share of the voting rights and/or capital, is a bargaining disadvantage in itself. Only by strengthening the relatively weaker bargaining position of the minority shareholders after a discriminatory situation, but prior to negotiations between the minority shareholders and the majority shareholders to negate the discriminatory behaviour, will there be a solution that is proportional to the minority shareholders’ share of the voting rights and/or capital in the company (as well as others interests of minority shareholders in a close corporation, to the extent these can be protected by law). Hence, the minority shareholders’ weaker bargaining position has to be strengthened by minimum legal rules and a right to opt in to a higher level of protection in the articles of association.","PeriodicalId":202300,"journal":{"name":"Nordic & European Company Law Working Paper Series","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125784030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}