normes de droit

Alors que le colloque du SASE va bientôt avoir lieu à Berkeley aux Etats-Unis, je reviens aujourd’hui sur ce que j’avais présenté au colloque qui s’était tenu en 2014 à Chicago : “Enterprise” and Lawyer’s view: By by Irresponsibility and Welcome in a New Area ».

Accédez au diaporama : PPT SASE 2014 version anglaise

Voici le résumé de cette intervention :

As institutions corporations and enterprises are the basis of capitalism and the subject of great interest for legal studies. Beyond regulation, the inherent nature of corporations raises sensitive legal questions, indeed, since its first appearance in the 18^th century. Inspired by economic and financial sciences, legal theories incorporate corporations to contracts (referred to as “aggregate theory”), a private government (referred to as “artificial theory”) and an autonomous entity (“entity theory” or “doctrine de l’entreprise” in Continental Europe). It is indeed argued that incorporating corporations to a simple nexus of contracts has been the subject of great attention since the 1970s, provided that none of the above theories have definitely won unanimity in law, as seen by a comparative reading of the Canadian, American and European jurisprudence. Corporate governance rules clearly demonstrate such incorporation. In its essence, however, the contractual analysis regards the corporation as a means to serving private interests whereby the liability schemes are limited to protecting the supplier of capital. The contractual analysis’s vision is indeed restricted, and it summarizes its goals, to the sought-after maximization of the corporation’s shareholders value. At the heart of the corporation’s issues lies the financial aspect. Within this framework, non-financial concerns appear far away and are dealt with as simple externality that poses management problems. Nonetheless, the corporation’s activities are bearing an economic power that is today seen as ever increasingly significant and its financial and non-financial consequences should be the basis of further thinking. Yet, Canadian law has engaged into this pathway. On the one hand, Canadian corporate law has experienced a profound re-assessment through the Supreme Court of Canada’s decisions in Peoples (2004) and BCE (2008). Far from being a strict contractual reading of the corporation, these decisions have shed light on the importance of different paradigms such as corporate social responsibility and the stakeholders’ theory. Indeed, new incorporated corporate concepts have reshaped the way the corporation is perceived and its relationship with the environment. On the other hand, Canadian competition law attempts at integrating social concerns into its political sphere. In 2013, the Supreme Court of Canada has allowed the commencement of proceedings by indirect purchasers by way of a class action (see cases of Pros-sys, Sun-Rype and Infineon). Case law contemplates limiting the negative impact of anti-competition practices implemented by multinational corporations. The objective is to reinstate an economic balance as between corporations and its clients. The consumer is indeed called upon to play a protective role in the market in addition to the Canadian Competition authority’s competence. As affirmed by the Canadian Competition Tribunal in the decision of Visa/Master Card certain competition disputes between merchants are of common interest. Thus, the public should be made aware of the difficulties met by the businesses in the market. In light of the recent Canadian case law standpoint, it most certainly raises questions about the role that competition policies play within the corporation’s economic activities framework. This paper suggests showing the current legal positions of Canadian corporations and its competition law framework, in addition to putting them into perspective with  their US and European counterparts. In addition to demonstrating their convergence in favor of a more social concern, we stand for the proposition that corporations, as has been defined by the jurist, does not only form a contract. Indeed, it is an institution that carries responsibilities as against its own environment.

À la prochaine…

Ivan Tchotourian