Gouvernance

Gouvernance objectifs de l'entreprise Responsabilité sociale des entreprises Valeur actionnariale vs. sociétale

Des droits à de la responsabilité : la perspective de la société change

Beau papier de la professeure Jennifer Hill de l’Université Monash : « The journey from corporate rights to corporate responsibilities » (blog ECGI, 8 février 2022). Ce billet souligne une chose : la société ne doit pas être pensée qu’en termes de droits, mais aussi de responsabilité !

Extrait

A burgeoning understanding of the meaning of ‘responsible capitalism’, however, considers that it involves something more than the mere avoidance of deception or fraud in the pursuit of profit-making. Just over 30 years ago, Professor Phillip I. Blumberg noted that much of the historical debate surrounding corporate personality in the United States had centred on the issue of the rights accorded to corporations, particularly constitutional rights. Questions of this kind have by no means disappeared—one only needs to think of the well-known 2014 Hobby Lobby decision, in which the U.S. Supreme Court determined that business corporations constitute ‘persons’ with a right to claim a statutory religious exemption. Nonetheless, according to Professor Blumberg, the new frontier of modern corporate law and governance would not be about rights, but rather about corporate responsibilities and about how to ensure accountability for corporate actions.

(…) This is by no means the first time in legal history that corporations have been perceived as playing a significant public role. After all, from at least the 17th century, U.K. royal chartered corporations, which provided the foundation for U.S. corporate law, had quasi-public roots and were seen as bodies approved by the State to act in the national interest.  By the time that Berle and Means published their classic corporate law treatise in 1932, the authors regarded the corporation as a profoundly ambiguous body, which could be interpreted as falling under public or private law. And during the early 1970s, a period of great political upheaval and environmental concern, members of the Rockefeller Foundation’s board of trustees considered that American corporations ‘must assert an unprecedented order of leadership in helping to solve the social problems of our time’.

Growing calls for ‘responsible capitalism’ serve as a reminder that corporate governance is not static; nor is it exclusively a private law problem about misalignment of interests between shareholders and managers. A second problem is the danger that corporate conduct may result in negative externalities that harm society. As a number of recent scandals, including those examined by a high profile 2019 Royal Commission in my own country, Australia, have demonstrated, incentives designed to address problems of corporate performance can exacerbate harm to stakeholders or society as a whole, by creating perverse incentives for corporate misconduct or unethical behaviour.

‘Responsible capitalism’ represents a significant shift in the direction of modern corporate governance. It will involve an increased focus on society’s expectations of corporations, particularly in an era marked by a cascading series of global financial, environment and health crises. It will also entail recalibration of incentives and regulatory techniques to ensure corporate accountability. There may be broad agreement that capitalism needs to become more ‘responsible’. However, the devil will be in the detail and the feasibility of establishing credible incentives and credible metrics. The dangers of ‘greenwashing’ and malleable environmental metrics in executive pay represent significant hurdles to achieving the goals of ‘responsible capitalism’.

À la prochaine…

devoirs des administrateurs Gouvernance Nouvelles diverses

L’importance d’un procès-verbal

Peu de personnes se penchent sur le rôle crucial du procès-verbal des CA. Pourtant, ce document est plus que jamais important notamment en termes de responsabilité des administrateurs (on ne le rappellera jamais trop !). Or, voici qu’Ed Zimmermann en traite – sous un angle juridique en analysant la jurisprudence du Delaware – dans un article intitué « Did It In The Minutes: In Favor of More Detailed Startup Board Minutes for Important Décisions » (Forbes, 10 septembre 2015).

Qu’en retenir ? Je vous propose les extraits suivants…

We don’t typically advise boards to be Dickensian in approaching minutes, but do advise that board minutes reflect two things: first, that the board raised and considered the relevant questions, and second, that the board actually understood the transaction and its implications in the context of the broader market.

(…) Chief Justice Strine’s biting prose underscore that board members not only must press for answers, but the important factors the board considered when making material decisions should be reflected in the minutes.

(…) Board members should each review the minutes and approve them.  We too frequently see board members attempting to rubber stamp the minutes. At my law firm, we generally appreciate receiving edits or comments, as those typically demonstrate a heartening level of board-level engagement.  I say generally, because there are definitely times when a board member with a self-interested ax to grind provides detailed and self-serving comments geared toward effectuating what he wished had transpired rather than helping to correct inaccuracies.

The minutes shouldn’t be sloppy or a court may later find them unreliable.  Minutes should accurately reflect the attendee list for the meeting, even referencing those attendees who aren’t board members.

À la prochaine…

Ivan Tchotourian