| Popis: |
The present Article argues that the regulation of the shareholders’ preemptive right (i.e. the normative choice between a mandatory and a pure contractual approach) should be differentiated according the ownership structure. Therefore, legislators and Courts should introduce different rules for different kinds of companies. In order to support such conclusion, the Article first attempts to reassess the correctness of the traditional understanding of the interests protected by the shareholders’ preemptive right (“the preemptive right aims at protecting the voting rights and the financial rights of the existing shareholders”). In this framework, I explore the development of pre-emptive rights in different legal systems, taking into account the historical evolutions. Among the jurisdictions examined, a division between two different groups can be traced, those which rely on a (possibly mandatory) right (preemptive right) for shareholders’ protection and those that depend on other protection mechanisms (e.g. direct purchase of the new shares on the market; fiduciary duties). The first group consists of European countries, where the Second Company Law Directive imposes a mandatory preemptive right, however permitting some exceptions. Into the second category fall the United States and other countries whose corporate law was strongly influenced by American law (for example, Japan). The consequence deriving from this analysis is twofold. On the one hand, despite the prevalence in European countries of the mandatory approach to the preemptive right, such right is neither the only nor necessarily a superior way to protect the shareholders’ interests, since it fails to take into proper account other relevant interests. The rule of preemptive right is not the only protection mechanism, especially for listed companies. On the other hand, it can be used in close corporations. The regulatory choice concerning the shareholders’ pre-emption right should be adjusted to the underlying ownership structure, which by itself shapes the shareholders’ interests. The Article proceeds as follow. Part I focuses on the problem and on the different interests at play when a corporation raises its share capital. In Part II, I analyse and compare the European approach (“mandatory”) with the American one (“contractual opt-in”). In particular, I shed light on how the two different regulatory approaches to the preemptive right relate with the ownership structure (concentrated or not) of the corporation. I also underline the differences existing between the two approaches with regard to the scope of the protective effects caused by the preemptive right. I come to the conclusion that the two systems show a common feature, namely – in contrast to dominant understanding – that the preemptive right in listed companies serves mainly, if not exclusively, the purpose of protecting the existing shareholders’ financial (but not voting) interests. Under this assumption, in Part III I turn to other possible methods of protecting shareholders’ interests when the corporation raises its capital, instead of granting a preemptive right. |
