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Enforcing Shareholders’ Duties

Edited by Hanne S. Birkmose, Professor, Department of Law, Aarhus University, Denmark and Konstantinos Sergakis, Senior Lecturer in Law, University of Glasgow, UK
A heavily debated topic, the evolution of shareholders’ duties risks the transformation of the very concept of shareholder primacy, crucially associated with shareholder rights. Offering a distinctive and comprehensive examination of both current and forthcoming enforcement mechanisms in the area of shareholder duties, this timely book provides an exhaustive analysis of the many issues related to these mechanisms, and considers the ongoing challenges surrounding their implementation.
Extent: 320 pp
Hardback Price: $150.00 Web: $135.00
Publication Date: 2019
ISBN: 978 1 78811 486 8
Availability: In Stock
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  • Business and Management
  • Corporate Governance
  • Law - Academic
  • Arbitration and Dispute Resolution
  • Corporate Law and Governance
  • Finance and Banking Law
A heavily debated topic, the evolution of shareholders’ duties risks the transformation of the very concept of shareholder primacy, crucially associated with shareholder rights. Offering a distinctive and comprehensive examination of both current and forthcoming enforcement mechanisms in the area of shareholder duties, this timely book provides an exhaustive analysis of the many issues related to these mechanisms, and considers the ongoing challenges surrounding their implementation.

Enforcing Shareholders’ Duties is unique in critically challenging the revised Shareholder Rights Directive as well as other legal provisions. Adopting a holistic view of the possible enforcement issues shareholders may face in company law, it argues for a measured approach in the design of such enforcement mechanisms and for a careful consideration of the effects of a legal interventionist approach. Astute and engaging chapters provide arguments and recommendations for future regulatory initiatives aimed at ensuring shareholders will remain incentivised to invest in companies, whilst still assuming their responsibilities.

Students and researchers with an interest in financial and corporate law, particularly from a policy and governance angle, will find this book an important resource. Its focus on the emerging agenda surrounding the enforcement of shareholders’ duties ensure it is also highly relevant for legislators, policymakers, and practitioners.
‘The great financial crisis of 2008 led the EU to rethink the relationship between listed companies and shareholders. Institutional investors have been requested to play a stewardship role in listed companies
as well as banks, and to force management to take a more long-term view. Enforcing Shareholders’ Duties offers the first comprehensive analysis on the enforcement of these new obligations, examining the key issue as to whether jurisdictions should choose private, public or “social” enforcement, or a combination thereof, and to what extent? This book will be of great interest to institutional investors, companies, policymakers and academics, not just in the EU, but also worldwide.’
– Pierre-Henri Conac, University of Luxembourg

‘The imposition of engagement and/or fiduciary duties upon shareholders, whether institutional or controlling ones, is a relatively new phenomenon in most jurisdictions, the implications of which for corporate law can hardly be overestimated. This volume fills an important gap in the literature by focusing on the law in action of shareholder duties. Its rich and insightful chapters give the reader a refined, nuanced and comprehensive understanding of the challenges and ramifications of the policies underlying the imposition of shareholder duties.’
– Luca Enriques, University of Oxford, UK

‘The role of shareholders is paramount in corporate governance, and their duties are underexplored. This important book makes a crucial contribution to rethinking the different ways in which shareholders’ obligations may be made operational in corporate law – with implications that must concern all scholars, policymakers and practitioners in this area.’
– Wolf-Georg Ringe, University of Hamburg, Germany
Contributors: A. Anand, H.S. Birkmose, J. Borg-Barthet, I.H.-Y. Chiu, M. Gargantini, E. Howell, C. Malberti, M. Neville, J. Payne, C. Puskas, K. Sergakis, K.E. Sørensen, C. Teichmann, C. van der Elst, C.A. Witting, L. Wolff





Contents:

Foreword
Takis Tridimas

PART I: The Contours of Enforcement
1. Legal and Economic Rationales for Shareholder Duties and their Enforcement
Anita Anand and Christopher Puskas

2. Duties Imposed on Specific Shareholders Only, and Enforcement Implications
Hanne Birkmose

3. Shareholder Engagement Duties: The European Move beyond Stewardship
Christoph Van der Elst

PART II: The Sources of Enforcement
4. Contractual Enforcement of Shareholders’ Duties
Corrado Malberti

5. Private vs Public Enforcement of Shareholder Duties
Iris Chiu

6. Legal vs Social Enforcement of Shareholder Duties
Konstantinos Sergakis

PART III: Sanctioning Shareholders’ Duties
7. Enforcing shareholder duties through suspension of the exercise of voting rights
Karsten Sørensen and Mette Neville

8. Financial Sanctions for breach of shareholders’ duties
Jennifer Payne and Elizabeth Howell

9. The Basis of Shareholder Liability for Corporate Wrongs
Christian A. Witting

PART IV: Barriers to Enforcement
10. Barriers to Shareholder Identification and Entitlement
Matteo Gargantini

11. Barriers to the Enforcement of Shareholders’ Duties Flowing from Primary EU Law
Christoph Teichmann and Lothar Wolff

12. Jurisdictional Barriers to Enforcement
Justin Borg-Barthet

Index