objectifs de l’entreprise | Page 5

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)

Extrait :

• 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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C’est sous ce titre que les professeurs Gatti et Ondersma amène à une réflexion critique sur l’ouverture de l’objectif des entreprises à la théorie des parties prenantes : « Can a Broader Corporate Purpose Redress Inequality? The Stakeholder Approach Chimera » (4 mars 2020).

Extrait (tiré de l’entrevue suivante « Can a Broader Corporate Purpose Redress Inequality? » :

Our paper also rebuts the premise that shareholder primacy is a key contributor to economic stagnation and inequality. To be sure, shareholder primacy may have contributed to concentration and monopsony in labor markets, excessive executive compensation, the decline in workers’ prerogatives, and tax cuts. But so might the stakeholder approach. Note that a stakeholder approach can hardly fix the central drivers of stagnation and inequality. Globalization, technology, and education cannot be addressed by corporate boardrooms alone. Similarly, collective action dynamics suggest that we cannot expect boards to retreat from further concentration. Experiences with constituency statutes and the battles between large corporations and organized labor tell us that boards won’t improve worker protections without regulation. Implementing legislative or regulatory measures would be much more effective in addressing stagnation and inequality than would be a change in corporate purpose.

In fact, stakeholderism is likely counter-productive. It would give corporations both a sword and a shield with which to defend the status quo.

First, managers and directors can play offense by expanding lobbying efforts, purportedly in the interest of all stakeholders, thus risking corporate capture of the reformist agenda. Second, corporations can deploy stakeholderism defensively by arguing that no direct regulation is needed.  Like others, we take a cynical view of the Business Roundtable’s Statement on Corporate Purpose and Martin Lipton’s “New Paradigm,” which includes regulatory preemption as an express purpose. Meanwhile, a switch to a stakeholder approach would require diverting momentum for change into significant political capital in order for it to be adopted – and once adopted, enshrined in against further change.  Thus, the pursuit of a stakeholder approach would deplete time, energy, and resources necessary to pass reforms to reduce inequality, such as tax, antitrust, and labor measures – precisely the changes most likely to meaningfully distribute power and resources to employees and other weaker constituents.

The Covid-19 pandemic exacerbates this concern.  As many businesses cannot survive without government aid, some have accepted conditions for receiving bailout money, primarily with respect to stock buy-backs and dividend payouts. We speculate that, at some point, businesses might find it convenient to simply offer, in exchange for further government relief, a formal adoption of a stakeholder approach in their charter.  This would preempt more onerous restrictions while preserving the status quo.

As disastrous as the current economic situation is, it also offers a rare opportunity to rethink and possibly reset certain policies. There is little choice but to depart from the tradition of tinkering with corporate governance and instead identify more effective tools to address inequality (mainly in labor, antitrust, and tax laws). This will undoubtedly require greater collaboration across fields and disciplines.

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Martin Lipton, William Savitt et Karessa L. Cain ont publié sur le Harvard Law School Forum on Corporate Governance un intéressant papier intitulé : « On the Purpose of the Corporation » (27 mai 2020).

Extrait :

The growing view that corporations should take into account environmental, social and governance (ESG) issues in running their businesses, and resistance from those who believe that companies should be managed solely to maximize share price, has intensified the focus on the more fundamental question of corporate governance: what is the purpose of the corporation?

The question has elicited an immense range of proposed answers. The British Academy’s Future of the Corporation Project, led by Colin Mayer, suggests that the purpose of the corporation is to provide profitable solutions to problems of people and planet, while not causing harm. The Business Roundtable has articulated a fundamental commitment of corporations to deliver value to all stakeholders, each of whom is essential to the corporation’s success. Each of the major US-based index funds has also expressed their views about the purpose of the corporations in which they invest, which, considered collectively, can be summarized as the pursuit of sustainable business strategies that take into account ESG factors in order to drive long-term value creation. On the other hand, the Council of Institutional Investors, some leading economists and law professors, and some activist hedge funds and other active investors continue to advocate a narrow scope of corporate purpose that is focused exclusively on maximizing shareholder value. The Covid-19 pandemic has brought into sharp focus the inequality in our society that, in considerable measure, is attributable to maximizing shareholder value at the expense of employees and communities.

For our part, we have supported stakeholder governance for over 40 years—first, to empower boards of directors to reject opportunistic takeover bids by corporate raiders, and later to combat short-termism and ensure that directors maintain the flexibility to invest for long-term growth and innovation. We continue to advise corporations and their boards that they may exercise their business judgment to manage for the benefit of all stakeholders over the long term.

As the pandemic disrupts settled expectations and provokes fresh perspectives, we believe it is critical to the vitality of our economic system for corporations—and the asset managers and investors who hold their shares—to recognize that ESG and stakeholder purpose are necessary elements of sustainable business success, and to engage on a regular basis to rationalize their views as to governance and stewardship. The roadmap for this shared understanding is elaborated in The New Paradigm: A Roadmap for an Implied Corporate Governance Partnership Between Corporations and Investors to Achieve Sustainable Long-Term Investment and Growth, which we developed for the World Economic Forum in 2016.

These imperatives lead us to a simple formulation of corporate purpose:

The purpose of a corporation is to conduct a lawful, ethical, profitable and sustainable business in order to create value over the long-term, which requires consideration of the stakeholders that are critical to its success (shareholders, employees, customers, suppliers, creditors and communities), as determined by the corporation and the board of directors using its business judgment and with regular engagement with shareholders, who are essential partners in supporting the corporation’s pursuit of this mission.

This conception of purpose is broad enough to apply to every business entity but at the same time supplies clear principles for action and engagement. The basic objective of sustainable profitability recognizes that the purpose of for-profit corporations is to create value for investors. The requirement of lawful and ethical conduct ensures minimum standards of corporate social compliance. Going further, the broader mandate to take into account corporate stakeholders—including communities, which is not limited to local communities, but comprises society and the economy at large—directs boards to exercise their business judgment within the scope of this broader responsibility. The requirement of regular shareholder engagement acknowledges accountability to investors, but also shared responsibility with shareholders for responsible long-term corporate stewardship.

Fulfilling this purpose will require different approaches for each corporation, dependent on its industry, history, governance and other factors. We expect that board committees—focusing on stakeholders, ESG issues and the stewardship obligations of shareholders—may be useful or even necessary for some companies. But for all the differences among companies, there is an important unifying commonality: corporate action, taken against the backdrop of this view of corporate purpose, will be fully protected by the business judgment rule, so long as it reflects the decisions of unconflicted directors acting upon careful deliberation.

Executed in this way, stakeholder governance is more consistent with a value-creation mandate than the shareholder primacy model. Directors and managers enjoy broad authority to act for the corporate entity they represent, over the long term, balancing its many rights and obligations and taking into account both risks and opportunities, in regular consultation with shareholders. Directors will not be forced to act as if any one interest trumps all others, with potentially destructive consequences, but will instead have latitude to make decisions that reasonably balance the interests of all constituencies and operate to the benefit of the sustainable, long-term business success of the corporation as a whole.

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