Convergence in Shareholder Law

Capa
Cambridge University Press, 20 de dez. de 2007
On the one hand, it can be argued that the increasing economic and political interdependence of countries has led to the convergence of national legal systems. On the other hand, advocates of the counterhypothesis maintain that this development is both unrealistic and unnecessary. Mathias M. Siems examines the company law of the UK, the USA, Germany, France, Japan and China to see how this issue affects shareholder law. The author subsequently analyses economic and political factors which may or may not lead to convergence, and assesses the extent of this development. Convergence of Shareholder Law not only provides a thorough comparative legal analysis but also shows how company law interconnects with political forces and economic development and helps in evaluating whether harmonisation and shareholder protection should be enhanced.
 

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2 Actions against resolutions of the general meeting
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the claim will be dismissed436 By contrast the requirement for
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decisive that in the US and the UK no pure
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III Convergence and artificial convergence
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2 The public choice theory
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This relates to the behaviour of politicians25 Politicians too do
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nonstatutory regulations also differ according to the activity of the
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requirements are very high so that the official capital market
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actual enforcement of law80 and the importance of the capital
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articles of association as this reveals some general insights on
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2 Shareholder agreements
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V Conclusion
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2 The shareholder as member of an association or parliamentarian
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or drawing value from the undertaking through dividends The
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2 Profit realization while remaining in the company
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distributable profits are available management can actually be forced to
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set to grow since interim dividends naturally follow from the
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name an alternative buyer or acquire the shares itself Art
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relaxed and in 2001 on the US model almost entirely
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protectionforprofitswouldbesufficientSomestudieshavedemonstrated
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essential participatory and creative rights as coowner of the company126
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shown that no significant relationship can be established between
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2 Modes of shareholder voting
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3 Shareholder involvement prior to the general meeting
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efficiently Yet the danger is that unregulated proxy voting may
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account239 forcing management to face criticism and questions from
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Shareholders with shares in several companies thus cannot personally
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investors there may be conflicts of interest if as well
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III The informed shareholder
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the effectiveness of the right to vote the right to
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parliamentarian For the investor who has to overcome rational
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everywhere and shareholders in public companies would be adequately
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Moreover even among public companies one has to distinguish between
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exercise of their rights voice or exit Here no trend
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shareholders and the capital market to be able to react
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4 Anonymity of the influential shareholder
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I The deciding shareholder
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As a result at least for public companies variations through
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management The same applies to the agency theory In a
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system While it is generally said that with blockholdings management
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independent members but not for instance the CEO then that
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to prevent the power ofdismissal which in France is possible
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the specific historical legislator may not have had a particular
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for manoeuvre How far this is permissible has not yet
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a resolution ofthe acquiring companys general meeting98 The reason for
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accordingly as a rule be reached only if a sale
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2 The necessary majority of shareholders
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Act 106 ChinCA148 This is probably the consequence of
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with public companies shareholder protection through decisionmaking
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I will not go into all the facets of these
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most directors are promoted employees Accordingly they see themselves
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All in all thus the classical distinction between shareholder and
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may considerably hamper a takeover of control Again prior decisions
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expense of profitability For comprehensive oversight accordingly a
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governance is also based on purely factual circumstances The
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Fifthly such procedural and typified measures need not necessarily be
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c Leaving the company
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Directive there are comparable provisions for listed companies triggered
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other countries studied here have not capitulated to the possibilities
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mandatory law internal monitoring mechanisms supervisory measures
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3 The influence of interest groups
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is at least also a reflection of economic circumstances subsection
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Nonetheless the importance of the OECD Principles should not be
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and cosmopolitan culture20 This decline in local differences with
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enhanced competition can lead only to a radical liberal model
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2 Changes in legal cultures
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communicate with lawyers and firms from various countries and to
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particularly likely here since the social circumstances that condition legal
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rather than further deregulation of the international economy is allegedly
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possibilities are a worldwide phenomenon the same legal challenges arise
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international level the new capital accord Basel II112 will speed
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or all the firms individual economic assets asset deal122 Additionally
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listing in the US have meant that the number ofnew
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the target company prefer domestic shares and thus make the
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Irrespective of this question an increasing number of firms listing
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IV Approximation of shareholder structures
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in the late 1970s dispersed holdings came to prevail reasons
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companies without dispersed holdings so conversely there are also ones
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a purely private system may be risky in continental Europe
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Despite all of this the effect of this strong path
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discussed in this section it may be that firms can
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establishing provisions on minimum capital for pseudoforeign
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here the situation in the US can be a model
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objectives international undertakings influence law in the direction of
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Moreover legislators are mostly not prevented from modelling their
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investors77 that shareholders indeed also directly value particular legal
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shareholder interests For instance the US model was marked in
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so that an approximation to the best law would be
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companies are privatized state enterprises personal relations exist
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3 Competition for shareholders
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in the quality oftheir law In other respects too the
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hard Additionally the mode of operation will vary between different
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the financial interests of the investment decision worthy of legal
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on international exchanges12 On the other hand it is to
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they can take up the proxies offers via the Internet
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will continue to be rational to set a moderate quorum
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76 some topics are politically controversial
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2 The protected shareholder
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the law and cooperation among legislators seem not unlikely In
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law and is therefore bound by it4 For convergence developments
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Substantively in view of the demands that public companies and
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to escape its influence This primacy of politics has particular
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minimum standards Thus uniform provisions would seem better
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II Convergence from below
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Part III above this may be either through pressure namely
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c Convergence through congruence
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4 Conclusion
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increasing relevance of the shareholder as investor Shareholders can in
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IV Conclusion
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For instance in favour of the ownership analogy is the
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With the more technical provisions on the shareholder as such
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approximations in economic policy company and shareholder structures
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