Valeur actionnariale vs. sociétale | Page 3

Dans « Beware of the Panacea of Stakeholder-friendly Corporate Purposes », le professeur Marco Ventoruzzo propose une critique sévèrement de l’ouverture de la gouvernance d’entreprise aux parties prenantes (Oxford Business Law Blog, 13 avril 2020). À réfléchir…

Extrait :

In this short essay (…), I take issue with the relevance and effectiveness of ’corporate purpose’ as a form of private ordering (eg, as a bylaws provision), or in other sources of soft-law (self-regulation in corporate governance codes, declarations of business associations, etc). I challenge whether these are, in fact, effective tools to induce greater commitment toward stakeholders.

(…) My possible disagreement with Mayer and other similar approaches and initiatives—or, more precisely, with a possible reading of these approaches and initiatives—lays in the excessive trust and emphasis that has been reserved to formulas concerning the purpose of the corporation and their possible consequences. Mayer argues that the corporate contract should include a reference to stakeholders and general social interests beyond value for shareholders, suggesting that this simple trick would have a meaningful impact on business conduct.

(…) The reasons are obvious.

First, these formulas are so broad, vague and ephemeral that they cannot possibly represent a compass for corporate action; they cannot provide meaningful guidance for virtually any specific corporate decision that implies a (legitimate) tradeoff between the interests of different stakeholders. Also, as precedents show, these formulas can be used even less to invoke the violation of directors’ duties and their liability. This conclusion is inevitable because the very essence of the agency relationship, the crucial function of a director or executive, is exactly mediating and balancing the different and often conflicting interests that converge on the corporation in an uncertain and evolving scenario. The idea of constraining the necessary discretion of directors within the boundaries of a simple purpose declaration is no better than the idea of writing in the contract with a painter that her work must be a masterpiece. Such an attempted shortcut to real value is self-evidently flawed.

Second, multiplying the goals and interests that directors must or can pursue, if it can have any effect at all, by definition increases their flexibility and discretion and makes it easier to justify, ex ante and ex post, very different choices. Without being cynical, from this perspective it is not surprising that these formulas are often welcomed, if not sponsored, by business associations and interest groups linked to managers, executives and entrenched shareholders.

Third, self-regulation and private ordering are often a way to avoid or delay the adoption of more stringent statutory or regulatory provisions. The former might be more or less effective, but they might also create an illusion of responsibility. The risk of putting too much trust into the beneficial consequences of these formulas is a disregard for more biting mandatory provisions, which may be necessary to avoid externalities and other market failures.

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Le Code civil chinois a été adopté le 28 mai 2020. Il ne rentrera en vigueur qu’au 1er janvier 2021. Deux articles ont attirés mon attention dans une perspective de responsabilité sociétale, articles qui concerne le régime des For-Profit Legal Person (section 2). En substances, voici ce que précisent lesdits articles :

Les actionnaires ne doivent pas intenter à l’intérêt de la personne morale ou à celui des créanciers.

Les entreprises assument une responsabilité sociale.

Order of the President of the People’s Republic of China (No. 45)
The Civil Code of the People’s Republic of China, as adopted at the 3rd Session of the Thirteenth National People’s Congress of the People’s Republic of China on May 28, 2020, is hereby issued, and shall come into force on January 1, 2021.
President of the People’s Republic of China: Xi Jinping
May 28, 2020
Civil Code of the People’s Republic of China
(Adopted at the 3rd Session of the Thirteenth National People’s Congress of the People’s Republic of China on May 28, 2020)

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• Article 83

An investor of a for-profit legal person shall not damage the interests of the legal person or any other investor by abusing the rights of an investor. If the investor abuses the rights of an investor, causing any loss to the legal person or any other investor, the investor shall assume civil liability in accordance with the law.
An investor of a for-profit legal person shall not damage the interests of a creditor of the legal person by abusing the independent status of the legal person and the limited liability of the investor. If the investor abuses the legal person’s independent status or the investor’s limited liability to evade debts, causing serious damage to the interests of a creditor of the legal person, the investor shall be jointly and severally liable for the legal person’s debts.

• Article 86

In business activities, a for-profit legal person shall comply with business ethics, maintain the safety of transactions, receive government supervision and public scrutiny, and assume social responsibilities.

Merci à mon collègue, le professeur Bjarne Melkevik, de cette information.

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Gavin Hinks revient de manière intéressante sur un rapport récemment publié par Sustainability Board Report mettant en lumière l’ouverture des grandes entreprises américaines à leurs parties prenantes : « Covid-19 pandemic ‘has accelerated shift to stakeholderism’ » (Board Agenda, 1er juin 2020).

Pour accéder au rapport commenté : ici.

Extrait :

There have been many claims that stakeholder capitalism is the future for business, particularly since the beginning of the Covid-19 crisis.

But one group says it now has evidence that stakeholder priorities are beginning to take root, driven by the pandemic. The Sustainability Board Report (SBR), a not-for-profit campaign group, has looked at disclosures from the world’s largest 100 companies to find examples of stakeholder-led decision-making. The report says it found good evidence that a shift towards “stakeholderism” is under way, with 37% of the firms examined revealing “specific corporate action” to respond to stakeholder interests since the advent of Covid-19.

Caution is needed here. The group has no pre-pandemic data for comparison. However, it remains confident that its findings reveal pro-stakeholder moves that were non-existent until recently.

(…) The SBR looked at policies disclosed affecting employees, customers, suppliers and community. The biggest pandemic response appears to have been directed at communities, with 71% of firms disclosing specific action. Johnson & Johnson, for instance, announced a $300m programme aimed at frontline workers.

Customers were the next largest group to receive support, from 37% of firms; employees from 28%; and suppliers seemingly receiving scant support from just one in ten (11%) of the companies checked.

(…) There has even been much speculation that Covid-19 would do much to give the movement energy, given that shutdowns and infection caused companies to reflect much more about their relationship with employees, customers and the wider public. In March, Harvard professor Bill George wrote in Fortune magazine: “If there is any consequence resulting from the Covid-19 pandemic, it’s the acceleration of the shift to stakeholder capitalism away from companies’ singular emphasis on shareholders.”

However, the SBR concedes that the data may support one claim that companies cynically use stakeholder capitalism as a PR tool to help cover business as usual. The fact that employees and communities are the greatest focus for “stakeholder” policies means companies could be using it to cover their concern with “perception and reputation”.

“One could conclude that some companies continue to pay lip service to stakeholderism while fundamentally maintaining a short-term profit orientation,” it says.

Evidence may be building but there is some way to go before it can be said that stakeholderism is a permanent fixture of business. Agitation by investment managers may help, but many managers will struggle to see how they will juggle conflicting interests.

That said, the confluence of drivers is perhaps greater now than at any time since the end of the Second World War. More recently, stakeholder capitalism was—and remains—part of the fight against climate change. Business will be called upon to remain at the forefront of that campaign until long after Covid-19 is under control. Stakeholder capitalism is likely to remain a focus of that effort.

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Les entreprises et les banques canadiennes semblent avoir fait le choix de la RSE et des parties prenantes comme l’illustre cet article : « Canadian companies can care about more than profit, and could pay a price if they don’t «  (Financial Post, 3 juin 2020).

Extrait :

It is not the first time a leader with a fiduciary responsibility waded into the public discourse. In January, Michael McCain, chief executive of Maple Leaf Foods Inc., used Twitter to criticize the White House for creating geopolitical conditions that led to Iran’s military destroying a Ukrainian airliner carrying more than 170 people, including 55 Canadian citizens and 30 permanent residents.  

(…) Corporate stances on environmental, social and political issues are becoming more common. And in Canada, a change to corporate law last year freed executives of some companies to expand their mandates beyond simply maximizing shareholder returns without fear of legal reprisal.

(…) “Companies and investors are beginning to recognize that what happens out there in the real world is arguably even more important than what happens on their spreadsheets and terminals,” said Kevin Thomas, chief executive of the Shareholder Association for Research and Education, a not-for-profit group focused on responsible investing. 

The responses by the heads of some of Canada’s biggest companies to the protests in the United States, as well as their various attempts to assist customers during the coronavirus pandemic, come as companies are also embracing more “stakeholder” capitalism, wherein the raison d’être for firms is more than just returning cash to shareholders. 

(…) Stakeholder capitalism was the theme of this year’s World Economic Forum’s gathering in Davos, Switzerland, where one of Masrani’s peers, Royal Bank of Canada chief executive Dave McKay, was in attendance. 

“As trust in governments wanes, and the complexity of society’s problems grows, companies are charting their own course on environment, social and governance issues, to maintain public confidence in business and ensure the prosperity of communities that business serves,” McKay wrote in January. 

On Tuesday, McKay published a post on LinkedIn stating he was “personally outraged at the senseless and tragic deaths in the U.S., which are clearly symptomatic of ongoing racial discrimination and injustice, and I know we are not immune to it in Canada.”

A year ago, Parliament passed legislation that amended the Canada Business Corporations Act (CBCA), which lays out the legal and regulatory framework for thousands of federally incorporated firms, to spell out in greater detail how directors and company officers could meet their legal responsibility to “act honestly and in good faith with a view to the best interests of the corporation.”

The updated law states that directors and officers may consider shareholders, as well as employees, retirees, creditors, consumers and governments when setting corporate strategy. The law also now states that both the environment and “the long-term interests of the corporation” can be taken into consideration.

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Encore un papier sur le fameux « purpose » du droit des sociétés par actions. C’est le professeur Edward Rock qui s’y attaque dans un article intitulé « For Whom is the Corporation Managed in 2020?: The Debate over Corporate Purpose » (European Corporate Governance Institute – Law Working Paper No. 515/2020, 1er mai 2020).

Résumé :

A high profile public debate is taking place over one of the oldest questions in corporate law, namely, “For whom is the corporation managed?” In addition to legal academics and lawyers, high profile business leaders and business school professors have entered the fray and politicians have offered legislative “fixes” for the “problem of shareholder primacy.” In this article, I take this debate to be an interesting development in corporate governance and try to understand and explain what is going on. I argue that, analytically and conceptually, there are four separate questions being asked. First, what is the best theory of the legal form we call “the corporation”? Second, how should academic finance understand the properties of the legal form when building models or engaging in empirical research? Third, what are good management strategies for building valuable firms? And, finally, what are the social roles and obligations of large publicly traded firms? I argue that populist pressures that emerged from the financial crisis, combined with political dysfunction, have led to the confusion of these different questions, with regrettable results.

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