{"title":"Sustainable Decision Making and Directors Duties","authors":"Mieke Olaerts","doi":"10.54648/eucl2023017","DOIUrl":"https://doi.org/10.54648/eucl2023017","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":"211 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: A. Seretakis: Regulating Hedge Funds in the EU. Wolters Kluwer, 2022.","authors":"Mariia Domina","doi":"10.54648/eucl2023015","DOIUrl":"https://doi.org/10.54648/eucl2023015","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":"254 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762236","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, the author addresses the development of the board observer in Dutch companies. The board observer is a relatively new phenomenon in the Dutch context (unlike Anglo-Saxon jurisdictions). In recent years, an increase has been noted in the Netherlands in the use of board observers. Basically, the board observer is a person who, as an agent and on behalf of an investor (most of the time), attends and observes board meetings and therefore receives a significant amount of information that is useful for the investor to stay up to date about the financial and operational health of the portfolio company. The author describes the motives to make use of an observer, both from the perspective of the investor and the (board of the) company. Also, the position of a board observer within the corporate governance of the company is discussed, as well as issues of confidentiality. Finally, the author addresses different authorities that can be granted to the board observer. For lawyers and other legal practitioners, it might be useful to advocate for detailed, contractual arrangements, since the board observer has no legal basis in Dutch law. Board observer, corporate governance, Johannesburg Stock Exchange, investors, information rights, confidentiality, authorities, contracts, private equity, venture capital, advisory rights
{"title":"The Development of the Board Observer in Dutch Companies","authors":"Wilbert Peters","doi":"10.54648/eucl2023016","DOIUrl":"https://doi.org/10.54648/eucl2023016","url":null,"abstract":"In this article, the author addresses the development of the board observer in Dutch companies. The board observer is a relatively new phenomenon in the Dutch context (unlike Anglo-Saxon jurisdictions). In recent years, an increase has been noted in the Netherlands in the use of board observers. Basically, the board observer is a person who, as an agent and on behalf of an investor (most of the time), attends and observes board meetings and therefore receives a significant amount of information that is useful for the investor to stay up to date about the financial and operational health of the portfolio company. The author describes the motives to make use of an observer, both from the perspective of the investor and the (board of the) company. Also, the position of a board observer within the corporate governance of the company is discussed, as well as issues of confidentiality. Finally, the author addresses different authorities that can be granted to the board observer. For lawyers and other legal practitioners, it might be useful to advocate for detailed, contractual arrangements, since the board observer has no legal basis in Dutch law. Board observer, corporate governance, Johannesburg Stock Exchange, investors, information rights, confidentiality, authorities, contracts, private equity, venture capital, advisory rights","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The recently enacted Corporate Sustainability Reporting Directive is a cornerstone of the European Union’s policy to achieve a sustainable economy, environment, and society. Under this Directive, companies are required to disclose a substantial amount of information on the impact of climate change and global warming, including sustainability matters relating to the company’s activity and information on the impact of the company activity on the environment and people. Nevertheless, the practical implementation of these sustainability-related disclosure obligations will encounter significant obstacles, most notably the wide scope of reporting. In particular, the reporting company bears the burden of disclosing material information on impacts, risks and opportunities connected to not only its own operations but also the operations of its direct and indirect business relationships in the upstream and downstream value chain. Such disclosure is expected to involve information produced by different, often distant sources, making information gathering efforts very difficult and endangering the quality of the information disclosed. In this reporting process, the company is even expected to engage with its stakeholders across its value chain. This article offers insights into these challenges and sheds light on the role that Blockchain technology may play in improving data quality and management in businesses that operate global, multilayer supply chains. corporate sustainability reporting, materiality, information disclosure, supply chain management, Blockchain
{"title":"Corporate Sustainability Reporting and Blockchain","authors":"Alexandros Seretakis, Félix E. Mezzanotte","doi":"10.54648/eucl2023018","DOIUrl":"https://doi.org/10.54648/eucl2023018","url":null,"abstract":"The recently enacted Corporate Sustainability Reporting Directive is a cornerstone of the European Union’s policy to achieve a sustainable economy, environment, and society. Under this Directive, companies are required to disclose a substantial amount of information on the impact of climate change and global warming, including sustainability matters relating to the company’s activity and information on the impact of the company activity on the environment and people. Nevertheless, the practical implementation of these sustainability-related disclosure obligations will encounter significant obstacles, most notably the wide scope of reporting. In particular, the reporting company bears the burden of disclosing material information on impacts, risks and opportunities connected to not only its own operations but also the operations of its direct and indirect business relationships in the upstream and downstream value chain. Such disclosure is expected to involve information produced by different, often distant sources, making information gathering efforts very difficult and endangering the quality of the information disclosed. In this reporting process, the company is even expected to engage with its stakeholders across its value chain. This article offers insights into these challenges and sheds light on the role that Blockchain technology may play in improving data quality and management in businesses that operate global, multilayer supply chains. corporate sustainability reporting, materiality, information disclosure, supply chain management, Blockchain","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":"161 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762571","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial: Editorial European Company Law June 2023","authors":"Bastiaan Kemp","doi":"10.54648/eucl2023014","DOIUrl":"https://doi.org/10.54648/eucl2023014","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44099006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Against the background of Index listed companies, for example the Paris Stock Exchange (Euronext) CAC 40 ESG Index, New York (NY) Stock Exchange iShares Core MSCI World UCITS ETF Index and the Johannesburg Stock Exchange (JSE) Equity Fund or Index, this article will review similarities in ESG metrics disclosures relevant to each index and whether a stock exchange could rate an index for ESG compliance without making use of an external rating company, for example MSCI. This article also discusses the method used by MSCI to rate listed companies for ESG compliance and whether asset or fund managers could rate their investment portfolios independently from a stock exchange. In this regard, three asset managers – BNP Paribas, Blackrock and Old Mutual – are examined for similarities in their ESG rating processes. In addition, this article explains whether the above stock exchanges are using the same ESG metrics or not. Paris Stock Exchange, New York Stock Exchange, Johannesburg Stock Exchange, ESG, asset manager index, asset manager ESG compliance, ESG rating, United Nations Sustainable Stock Exchanges Initiative
{"title":"ESG Metrics Disclosures for Index-Listed Companies in Paris, New York and Johannesburg","authors":"N. Kilian","doi":"10.54648/eucl2023012","DOIUrl":"https://doi.org/10.54648/eucl2023012","url":null,"abstract":"Against the background of Index listed companies, for example the Paris Stock Exchange (Euronext) CAC 40 ESG Index, New York (NY) Stock Exchange iShares Core MSCI World UCITS ETF Index and the Johannesburg Stock Exchange (JSE) Equity Fund or Index, this article will review similarities in ESG metrics disclosures relevant to each index and whether a stock exchange could rate an index for ESG compliance without making use of an external rating company, for example MSCI. This article also discusses the method used by MSCI to rate listed companies for ESG compliance and whether asset or fund managers could rate their investment portfolios independently from a stock exchange. In this regard, three asset managers – BNP Paribas, Blackrock and Old Mutual – are examined for similarities in their ESG rating processes. In addition, this article explains whether the above stock exchanges are using the same ESG metrics or not.\u0000Paris Stock Exchange, New York Stock Exchange, Johannesburg Stock Exchange, ESG, asset manager index, asset manager ESG compliance, ESG rating, United Nations Sustainable Stock Exchanges Initiative","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47245916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
After 10 years of delay, in November 2022 the EU passed the Directive on improving the gender balance among non-executive directors of companies listed on stock exchanges. This Directive imposes a 40% quota in respect of the underrepresented gender for listed company boards in the EU. The aim is to diversify corporate boardrooms and thereby boost economic growth and gender equality (among other objectives). In this paper I look at the mechanisms of the Directive and consider their practical effect and potential impact. I also ask whether the Directive has missed an opportunity to make a more tangible difference to gender equality by failing to effectively consider executive director diversity. I reach the conclusion that the Directive, as drafted, might have been suitable 10 years ago but is not necessarily today. The changes of the last 10 years threaten to mean the Directive becomes obsolete before its pre-destined end date in 2038. boardroom diversity, gender equality, quota, directors, company law, corporate governance, European Union
{"title":"The EU Directive on Women on Boards","authors":"Eleanore Hickman","doi":"10.54648/eucl2023013","DOIUrl":"https://doi.org/10.54648/eucl2023013","url":null,"abstract":"After 10 years of delay, in November 2022 the EU passed the Directive on improving the gender balance among non-executive directors of companies listed on stock exchanges. This Directive imposes a 40% quota in respect of the underrepresented gender for listed company boards in the EU. The aim is to diversify corporate boardrooms and thereby boost economic growth and gender equality (among other objectives). In this paper I look at the mechanisms of the Directive and consider their practical effect and potential impact. I also ask whether the Directive has missed an opportunity to make a more tangible difference to gender equality by failing to effectively consider executive director diversity. I reach the conclusion that the Directive, as drafted, might have been suitable 10 years ago but is not necessarily today. The changes of the last 10 years threaten to mean the Directive becomes obsolete before its pre-destined end date in 2038.\u0000boardroom diversity, gender equality, quota, directors, company law, corporate governance, European Union","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46805455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Appraisal remedies offer a withdrawal right to minority shareholders who are confronted with midstream-changes in a company. This form of minority protection is a hot topic in (European) company law especially since the introduction of appraisal remedies in the Cross Border Mobility Directive. This article deals with an underexposed risk to this form of minority protection in private companies, namely the impact of the payment of the compensation for the withdrawing shareholder on the financial position of the company. Just as any other distribution, the payment of the compensation could endanger the solvency and liquidity of the company. This is not only relevant for the company creditors but also the remaining shareholders. I will elaborate on this risk and how remedies for creditor protection can temper it. This article argues that this risk will, however, only seldomly occur as the impact on the financial position of the company will have a deterrent effect on the underlying transaction. The most plausible situations in which this risk will occur are ‘do or die’ transactions and the scenario of irrational behaviour of shareholders. For these scenarios, means of creditor protection are needed. Appraisal remedies, withdrawal of shareholders, private companies’ minority protection, creditor protection
{"title":"The Impact of Appraisal Remedies on the Financial Position of the Private Company","authors":"Olivier Roodhooft","doi":"10.54648/eucl2023011","DOIUrl":"https://doi.org/10.54648/eucl2023011","url":null,"abstract":"Appraisal remedies offer a withdrawal right to minority shareholders who are confronted with midstream-changes in a company. This form of minority protection is a hot topic in (European) company law especially since the introduction of appraisal remedies in the Cross Border Mobility Directive.\u0000This article deals with an underexposed risk to this form of minority protection in private companies, namely the impact of the payment of the compensation for the withdrawing shareholder on the financial position of the company. Just as any other distribution, the payment of the compensation could endanger the solvency and liquidity of the company. This is not only relevant for the company creditors but also the remaining shareholders. I will elaborate on this risk and how remedies for creditor protection can temper it.\u0000This article argues that this risk will, however, only seldomly occur as the impact on the financial position of the company will have a deterrent effect on the underlying transaction. The most plausible situations in which this risk will occur are ‘do or die’ transactions and the scenario of irrational behaviour of shareholders. For these scenarios, means of creditor protection are needed.\u0000Appraisal remedies, withdrawal of shareholders, private companies’ minority protection, creditor protection","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44754962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, we start by describing the treatment of the participative loans under the Spanish recapitalize or liquidate rule and the potential problems of EU Law conformity of said framework. Under this light, we analyse the European rules on the serious loss of capital and try to conclude with an explanation of the concept of net assets, as relevant for such framework. Net assets, Legal Capital Doctrine, Serious Loss of Capital, Subscribed Capital
{"title":"The Concept of Net Assets for the Purposes of the Serious Loss of Capital Framework as Set Forth in the European Capital Maintenance Rules","authors":"Diogo Pessoa","doi":"10.54648/eucl2023009","DOIUrl":"https://doi.org/10.54648/eucl2023009","url":null,"abstract":"In this article, we start by describing the treatment of the participative loans under the Spanish recapitalize or liquidate rule and the potential problems of EU Law conformity of said framework. Under this light, we analyse the European rules on the serious loss of capital and try to conclude with an explanation of the concept of net assets, as relevant for such framework.\u0000Net assets, Legal Capital Doctrine, Serious Loss of Capital, Subscribed Capital","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47512881","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial: CSRD and CSDD: How the Sustainability Regulatory Evolution Impacts on Sustainable and Green Investments","authors":"Pierre de Gioia-Carabellese, Letizia Macrì","doi":"10.54648/eucl2023010","DOIUrl":"https://doi.org/10.54648/eucl2023010","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47656839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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