Structures juridiques

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Purpose et revitalisation du droit des sociétés

La professeure australienne Rosemary Teele Langford offre un bel article relayé par l’Oxford Business Law Blog : « Purpose-Based Governance and Revitalisation of Company Law to Facilitate Purpose-Based Companies » (18 septembre 2020).

Extrait :

The permissibility of corporations pursuing purposes other than profit has been the subject of debate for a number of years. This debate has intensified recently with proposals from bodies such as the British Academy and the Business Round Table (as discussed in previous OBLB posts) to allow or mandate the adoption of purposes by corporations. The challenges posed by COVID-19 have also focused attention on corporate purpose. In addition, there is increasing demand for appropriate vehicles for the conduct of social enterprises and other purpose-based ventures. At the same time, purpose is central to governance in the charitable sphere. In two recent articles I critically analyse the role of purpose in Australian company and charity law and demonstrate revitalisation of the law to facilitate adoption of, and governance centred on, purpose.

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The second article, ‘Use of the Corporate Form for Public Benefit – Revitalisation of Australian Corporations Law’, provides extended detail on relevant aspects of the company law regime and focuses more closely on particular issues that arise in the facilitation of purpose-based companies. These include the application of directors’ duties in the context of such companies, with particular focus on the application of the duty to act in good faith in the interests of the company where companies have multiple purposes. This in turn has relevance for the drafting of appropriate constitutional provisions. Other issues arise in relation to standing and enforcement, departure from purposes and signalling. The focus of analysis is on the for-profit corporate form given that it is uncontroversial that other corporate forms (such as companies limited by guarantee) can be used for charitable and not-for-profit purposes. 

In this respect, experience from the UK and US can provide helpful insights in the revitalisation of Australian law. In particular, scholarly analysis of the issues arising from these overseas legislative regimes, and suggested solutions, are invaluable in determining the application of directors’ duties to purpose-based companies and in framing appropriate constitutional provisions. Although changes to the law are not necessary to enable companies to adopt purposes, these lessons from other jurisdictions that have legislated to allow for special-purpose companies are therefore instructive in revitalising Australian law. 

This analysis demonstrates that revitalisation of Australian law to allow purpose-based companies is feasible. In fact, it is opportune. This in turn allows company law to be attuned to practical and conceptual developments in the corporate sphere and more broadly. Such revitalisation does not require a fundamental shift, particularly given the malleability of directors’ duties. Indeed, given that the origins of the corporate form were connected with public ends, this evolution of the corporate form, and the attendant adaption of directors’ duties, are a natural adaptation rather than a radical reformulation. 

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