COVID-19 et corporate law

Sur l’Oxford Business Law Blog, le professeur Luca Enriques publie une synthèse bien intéressante à celles et ceux qui cherchent à faire le point sur les conséquences de la COVID-19 sur le droit des sociétés par actions : « GCGC/ECGI Global Webinar Series – Extreme times, Extreme Measures: Pandemic-Resistant Corporate Law » (22 avril 2020).

Extrait :

These are exceptional times. Almost everywhere, policymakers are taking exceptional measures. Most of these measures are in the domains of public health, public finance and public law. Among the latter, of great relevance to corporate governance are the rules broadening governments’ powers to authorize large share block purchases (eg, in Germany and Italy). Even stronger proposals are being aired, and in some cases already adopted, in the direction of injecting public funds into companies in exchange for equity (Germany), if not of nationalising businesses altogether (France).

But some incursions into private law have also been made. This is especially true with regard to insolvency (or bankruptcy) law, as documented by Aurelio Gurrea Martinez. Some of the bankruptcy law-related measures intervene to change rules that ordinarily apply in the vicinity of insolvency and are therefore at the boundary between insolvency and corporate law. For instance, a number of countries are discussing whether to review directors’ duties in the proximity of insolvency (eg, the UK and New Zealand: see Licht) or have already done so (eg, AustraliaSpain and Germany). 

Similarly, some of the jurisdictions still providing for the ‘recapitalize or liquidate’ rule (which requires directors to promote a recapitalization of the company, convert it into an unlimited liability partnership or liquidate it, if net assets fall below a given threshold), such as SpainItaly and Ecuador, have chosen to suspend its application during the crisis. Finally, in Italy rules on the subordination of shareholders loans have also been suspended.

This post asks the question of whether company law rules not specifically dealing with companies in the twilight zone should also be tweaked to face the emergency. One obvious focus are rules dealing with how general meetings must be held (see eg the UK and Italy). Such rules may be at odds with social distancing provisions wherever they don’t allow for virtual meetings or forms of collective representation of the shareholders. But one can think more broadly about how corporate law should be amended in order to avoid economic rather than viral contagion and keep companies afloat in these exceptional times. Below are some general considerations to guide policymakers’ choices in this area, followed by examples of temporary corporate law interventions for the emergency. This post concludes with some thoughts about how to prepare for a similar emergency in the future.

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Ce contenu a été mis à jour le 30 mars 2022 à 5 h 49 min.

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