IDEAS home Printed from https://ideas.repec.org/
MyIDEAS: Login to save this article or follow this journal

Droits à l'information des actionnaires et actions sociales des associés en France et Allemagne.. Considérations de droit comparé en relation avec les directives américaines

  • Alain Alcouffe
  • Christian Kalweit

Most recently, the focus of the increasingly broad discussion on corporate governance has been on the role shareholders play within the corporate governance system of stock companies. Applying a comparative approach, the present paper examines one of the legal institutions supporting the position of shareholders of large public corporations : the information rights. These rights have gained importance for many questions of corporate governance, e.g. for the formulation of shareholders’ derivative suits as an instrument to control the activities of executive as well as supervisory boards, a matter which has also found considerable academic interest. The determination of the respective legal positions of shareholders and other stakeholders to a large extent depends on how the interest groups to whom the corporation is obliged, put them into operation. Recently, France and Germany had to face some kind of backlog demand in that, in those interest of the competitiveness of corporations on the capital markets, the neglected interests of stockholders needed to be rediscovered and reactivated. As opposed to US-American law, under German and French company law information rights of stockholders typically are determined and specified by mandatory statutory rules. German company law – de lege lata – does not consider the stockholders to be “watchdogs of the law” having a general control function vis-à-vis the administration, but merely offers them the possibility of exercising certain membership rights. Consequently, information rights of stockholders do not amount to a comprehensive claim of the stockholders to be fully informed by the executive board nor does the executive board merely act as trustee of the stockholders. Rather, the objective of the information right is to put minority stockholders in a position to uncover opportunistic behaviour of major shareholders, and to prevent such behaviour by way of seeking injunctive relief and bringing suit for compensation or damages. Therefore, it is not to be expected that, by relying alone on shareholders making use of their rights, the capital market will become sufficiently informed and transparent. By contrast, in a model of corporate governance providing for informational investor protection, as is the case under US-American law, corporate information rights of stockholders do have a more important role to play. The nexus-of-contracts theory of the firm tries to construe corporations as a network of interlinked relationships of parties. This is why, due to a tradition of conceiving of stock companies as a contractual arrangement between shareholders, a shareholder primacy norm will meet with less opposition under Anglo-American law than under German company law. Instead of establishing mandatory rules of company law, the contract theory of the company trusts in the market mechanisms as a way to control the company. Moreover, by providing for the possibility of derivative suits akin to an actio pro socio, US-American law has strengthened the role of shareholders with respect to the control of the activities of the executive board. Obviously, information rights of stockholders will gain importance accordingly, since, in the absence of sufficient information, it would be difficult to successfully sue for damages in case of breach of duties of care or of duties of loyalty.

If you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.

File URL: http://www.cairn.info/load_pdf.php?ID_ARTICLE=RIDE_172_0159
Download Restriction: free

File URL: http://www.cairn.info/revue-internationale-de-droit-economique-2003-2-page-159.htm
Download Restriction: free

Article provided by De Boeck Université in its journal Revue internationale de droit économique.

Volume (Year): t. XVII, 2 (2003)
Issue (Month): 2 ()
Pages: 159-196

as
in new window

Handle: RePEc:cai:riddbu:ride_172_0159
Contact details of provider: Web page: http://www.cairn.info/revue-internationale-de-droit-economique.htm

No references listed on IDEAS
You can help add them by filling out this form.

This item is not listed on Wikipedia, on a reading list or among the top items on IDEAS.

When requesting a correction, please mention this item's handle: RePEc:cai:riddbu:ride_172_0159. See general information about how to correct material in RePEc.

For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Jean-Baptiste de Vathaire)

If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

If references are entirely missing, you can add them using this form.

If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.

If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.

Please note that corrections may take a couple of weeks to filter through the various RePEc services.

This information is provided to you by IDEAS at the Research Division of the Federal Reserve Bank of St. Louis using RePEc data.