Normes d’encadrement | Page 2

Une belle comparaison entre les droits étatsuniens et chinois à propos des droits d’inspection des actionnaires dans : R. Huang et R. Thomas, « The Law and Practice of Shareholder Inspection Rights: A Comparative Analysis of China and the U.S. », European Corporate Governance Institute – Law Working Paper No. 499/2020.

Extrait :

Shareholder inspection rights allow a shareholder to access relevant documents and records of their company, so as to address the problem of information asymmetry inherent in the corporate form, and facilitate monitoring of the operation of the company and, if necessary, the bringing of further action for remedies.

In the United States (U.S.), all states have now codified shareholder inspection rights, albeit with some significant differences amongst them. Drawing upon overseas experiences such as the U.S. law, China has introduced the regime of shareholder inspection rights, but with some important adaptions made to its local environment. By providing access to relevant information, inspection rights have the potential to serve as an effective mechanism to deal with different types of agency problems in the company: not only the manager–shareholder conflict that is the most serious agency problem in the U.S., but also the conflict between majority and minority shareholders which mainly plagues the corporate governance system in China.

However, due to institutional differences, variations may exist between the two jurisdictions as to how inspection rights are structured and enforced. In our recent article, we thus compare shareholder inspection rights in China and the U.S. (that is mostly represented by Delaware, the preeminent corporate law jurisdiction in the U.S.), both in terms of the law on the books and the law in practice.

(…) Overall, we find that shareholder inspection rights play an important role in both the Chinese and US legal systems. While Chinese corporate governance and American corporate governance face different sets of agency cost problems, improved shareholder monitoring creates important benefits in both of them. There exist, however, some important differences in the structure and enforcement of the inspection rights regime between the two jurisdictions, which can be largely explained by reference to their different contexts of political economy.

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Nouvelle intéressante en droit des sociétés par actions américain : la Cour suprême du Delaware a rendu une décision récemment (Marchand v. Barnhill) qui porte sur les devoirs des administrateurs en matière de surveillance institutionnelle et de mise en place d’un système de contrôle des risques (voir l’actualité sur Skadden).

Résumé :

On June 18, 2019, in Marchand v. Barnhill, 212 A.3d 805 (Del. 2019), the Delaware Supreme Court issued an important decision reaffirming the obligation that directors of Delaware corporations make good faith efforts to implement and monitor a risk oversight system. In Marchand, the Supreme Court reversed the Court of Chancery’s dismissal of a stockholder derivative suit seeking damages pursuant to alleged Caremark claims, which are difficult to plead and prove.¹ Specifically, the Supreme Court held that, at the pleading stage, the plaintiffs had alleged facts sufficient to satisfy the high Caremark standard for establishing that a board breached its duty of loyalty by failing to make a good faith effort to oversee a material risk area, thus demonstrating bad faith.

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Intéressante information de The Advisor-s Edge concernant les agences de conseil en vote : « Updated: SEC addresses proxy voting concerns » (21 août 2019).

Extrait :

The U.S. Securities and Exchange Commission (SEC) set out its views on investment advisors fulfilling their proxy voting responsibilities. The guidance states that proxy voting advice constitutes a “solicitation” under federal rules and provides instructions on applying anti-fraud rules to proxy voting advice.

“Advisers who vote proxies must do so in a manner consistent with their fiduciary obligations and, to the extent they rely on voting advice from proxy advisory firms they must take reasonable steps to ensure the use of that advice is consistent with their fiduciary duties,” said SEC commissioner Elad Roisman, who led development of the new guidance.

“In addition, proxy advisory firms, to the extent they engage in solicitations, must comply with applicable law,” he noted.

Pour accéder au texte de la SEC : « Commission Guidance Regarding Proxy Voting Responsibilities of Investment Advisers » (17 CFR Parts 271 and 276)

Résumé :

The Securities and Exchange Commission (the “SEC” or the “Commission”) is publishing guidance regarding the proxy voting responsibilities of investment advisers under Rule 206(4)-6 under the Investment Advisers Act of 1940 (the “Advisers Act”), and Form N-1A, Form N-2, Form N-3, and Form N-CSR under the Investment Company Act of 1940 (the “Investment Company Act”).

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Passionnant article de Justin Fox sur la participation des salariés au CA des entreprises américaines. Dans son article « Why U.S. Corporate Boards Don’t Include Workers » (21 août 2018), Justin Fox met en avant deux facteurs (le juridique et le politique) pour expliquer cette non présence des salariés dans la culture américaine.

Extrait :

The U.S., it turns out, also used to have entities much like works councils, which went under names like “employee representation plans,” “company unions” and just plain “industrial democracy.” They came into vogue later than in Germany, but constituted a major movement from about 1915 through 1935, when Congress put a stop to them (which doesn’t sound like what Jensen and Meckling would call a “voluntary arrangement”). I cannot claim to be an expert on this history, but I do know a lot more about it than I did a few days ago, so here goes. (…)

This would seem to have gotten us pretty far from the question of why American corporate boards generally don’t include worker representatives. But I think there is a connection. Union officials have occasionally gotten seats on corporate boards in the U.S.: United Automobile Workers presidents Douglas Fraser and then Owen Bieber served on Chrysler’s board from 1980 to 1991 after Fraser’s lobbying helped Chrysler secure a government bailout in 1979-1980, and after the bailout of 2008-2009 the Chrysler and General Motors boards each included a representative of the UAW Retiree Medical Benefits Trust, which happened to have become the companies’ biggest shareholder. 5 Union and government-employee pension funds have also occasionally used their clout as shareholders to pressure managements that they see as anti-worker. And employee stock ownership plans and worker cooperatives (which got a boost from new legislation enacted this month) both give workers a say as owners.

But all of these seem quite different from the German setup, where rank-and-file workers are expected to be involved in company governance from the shop floor (or bank branch or research and development center) to the boardroom. What Warren has now proposed can be seen as a sort of very high level employee involvement program. Even if it doesn’t go anywhere (and I’m guessing it won’t, at least not any time soon), perhaps it can restart the discussion over whether we shouldn’t be encouraging other kinds of employee input too.

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Bonjour à toutes et à tous, la sénatrice Élisabeth Warren vient d’introduire un projet de loi très ambitieux (!) : le S.3348 – Accountable Capitalism Act.

Plusieurs points saillants ressortent de ce projet :

• La création d’un Office of United States Corporations.
• La possibilité de s’enregistrer auprès de cet organisme fédéral (alors que jusqu’à maintenant, rappelons-le, l’enregistrement se faisait auprès des États et notamment celui du Delaware).
• Les salariés représenteraient 40 % du CA.
• L’entreprise devrait poursuivre une mission sociétale.
• La redéfintion des devoirs des administrateurs et hauts-dirigeants.

Pour en savoir plus, lire cet article ici du The Guardian.

Extrait du projet de loi

SEC. 5. Responsibilities of United States corporations.

(a) Definitions.—In this section:

(1) GENERAL PUBLIC BENEFIT.—The term “general public benefit” means a material positive impact on society resulting from the business and operations of a United States corporation, when taken as a whole. (…)

(1) IN GENERAL.—The charter of a large entity that is filed with the Office shall state that the entity is a United States corporation.

(2) CORPORATE PURPOSES.—A United States corporation shall have the purpose of creating a general public benefit, which shall be—

(A) identified in the charter of the United States corporation; and

(B) in addition to the purpose of the United States corporation under the articles of incorporation in the State in which the United States corporation is incorporated, if applicable.

(c) Standard of conduct for directors and officers.—

(c) Standard of conduct for directors and officers.—

(1) CONSIDERATION OF INTERESTS.—In discharging the duties of their respective positions, and in considering the best interests of a United States corporation, the board of directors, committees of the board of directors, and individual directors of a United States corporation—

(A) shall manage or direct the business and affairs of the United States corporation in a manner that—

(i) seeks to create a general public benefit; and

(ii) balances the pecuniary interests of the shareholders of the United States corporation with the best interests of persons that are materially affected by the conduct of the United States corporation; and

(B) in carrying out subparagraph (A)—

(i) shall consider the effects of any action or inaction on—

(I) the shareholders of the United States corporation;

(II) the employees and workforce of—

(aa) the United States corporation;

(bb) the subsidiaries of the United States corporation; and

(cc) the suppliers of the United States corporation;

(III) the interests of customers and subsidiaries of the United States corporation as beneficiaries of the general public benefit purpose of the United States corporation;

(IV) community and societal factors, including those of each community in which offices or facilities of the United States corporation, subsidiaries of the United States corporation, or suppliers of the United States corporation are located;

(V) the local and global environment;

(VI) the short-term and long-term interests of the United States corporation, including—

(aa) benefits that may accrue to the United States corporation from the long-term plans of the United States corporation; and

(bb) the possibility that those interests may be best served by the continued independence of the United States corporation; and

(VII) the ability of the United States corporation to accomplish the general public benefit purpose of the United States corporation;

(ii) may consider—

(I) other pertinent factors; or

(II) the interests of any other group that are identified in the articles of incorporation in the State in which the United States corporation is incorporated, if applicable; and

(iii) shall not be required to give priority to a particular interest or factor described in clause (i) or (ii) over any other interest or factor.

(2) STANDARD OF CONDUCT FOR OFFICERS.—Each officer of a United States corporation shall balance and consider the interests and factors described in paragraph (1)(B)(i) in the manner described in paragraph (1)(B)(iii) if—

(A) the officer has discretion to act with respect to a matter; and

(B) it reasonably appears to the officer that the matter may have a material effect on the creation by the United States corporation of a general public benefit identified in the charter of the United States corporation.

(3) EXONERATION FROM PERSONAL LIABILITY.—Except as provided in the charter of a United States corporation, neither a director nor an officer of a United States corporation may be held personally liable for monetary damages for—

(A) any action or inaction in the course of performing the duties of a director under paragraph (1) or an officer under paragraph (2), as applicable, if the director or officer was not interested with respect to the action or inaction; or

(B) the failure of the United States corporation to pursue or create a general public benefit. (…)

(d) Right of action.—

(1) LIMITATION ON LIABILITY OF CORPORATION.—A United States corporation shall not be liable for monetary damages under this section for any failure of the United States corporation to pursue or create a general public benefit.

À la prochaine…

Ivan Tchotourian