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":null,"pages":null},"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}
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":null,"pages":null},"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}
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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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}
{"title":"Editorial: The World Is Changing","authors":"M. Olaerts, Bastiaan Kemp","doi":"10.54648/eucl2023004","DOIUrl":"https://doi.org/10.54648/eucl2023004","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41330228","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 German supply chain law ( Lieferkettensorgfaltspflichtengesetz, abbreviated: LkSG) which enters into force on 1 January 2023 is part of the developing legal framework for human rights in global supply chains. Like the French vigilance law, it represents a new generation of supply chain laws which impose mandatory human rights due diligence obligations. The LkSG requires enterprises to exercise a number of due diligence obligations – from conducting risk analysis to undertaking preventive measures or remedial actions. The law is based on public enforcement via a competent authority, the Federal Office for Economic Affairs and Export Control (BAFA). The BAFA monitors and enforces compliance with the due diligence obligations. Non-compliant enterprises can be fined with up to 800,000 Euros and, in some cases, up to 2% of the annual turnover. Whilst the LkSG is an important step towards achieving greater corporate sustainability, it also has limitations. It was a political compromise and, as such, it does not include a new civil liability for non-compliance. Moreover, by default, it only applies to the enterprise’s own business area and its direct suppliers, whereas indirect suppliers are only included where the enterprise has substantiated knowledge that an obligation has been violated. Supply chain law, Germany, Lieferkettensorgfaltspflichtengesetz, LkSG, business, human rights, home state laws, human rights due diligence, UN Guiding Principles
{"title":"Article: The German Supply Chain Law: A First Step Towards More Corporate Sustainability","authors":"Andreas Rühmkorf","doi":"10.54648/eucl2023003","DOIUrl":"https://doi.org/10.54648/eucl2023003","url":null,"abstract":"The German supply chain law ( Lieferkettensorgfaltspflichtengesetz, abbreviated: LkSG) which enters into force on 1 January 2023 is part of the developing legal framework for human rights in global supply chains. Like the French vigilance law, it represents a new generation of supply chain laws which impose mandatory human rights due diligence obligations. The LkSG requires enterprises to exercise a number of due diligence obligations – from conducting risk analysis to undertaking preventive measures or remedial actions. The law is based on public enforcement via a competent authority, the Federal Office for Economic Affairs and Export Control (BAFA). The BAFA monitors and enforces compliance with the due diligence obligations. Non-compliant enterprises can be fined with up to 800,000 Euros and, in some cases, up to 2% of the annual turnover. Whilst the LkSG is an important step towards achieving greater corporate sustainability, it also has limitations. It was a political compromise and, as such, it does not include a new civil liability for non-compliance. Moreover, by default, it only applies to the enterprise’s own business area and its direct suppliers, whereas indirect suppliers are only included where the enterprise has substantiated knowledge that an obligation has been violated.\u0000Supply chain law, Germany, Lieferkettensorgfaltspflichtengesetz, LkSG, business, human rights, home state laws, human rights due diligence, UN Guiding Principles","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42611364","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}
On 1–3 June 2022, the Common European Law on Investment Screening (CELIS) Institute organized its fourth annual conference ‘2022 CELIS Forum on Investment Screening’ (CFIS22). The Conference was held in Sweden, at Uppsala University. The CELIS Institute is an independent non-profit, non-partisan research enterprise dedicated to promoting better regulation of foreign investments in the context of security, public order, and competitiveness. It was set up in 2020 by Steffen Hindelang and J. Hillebrand Pohl, the convenors of this year’s conference, as a permanent successor to the ‘International Conference on a Common European Law on Investment Screening (CELIS)’, convened by Professor Hindelang and Andreas Moberg in 2019. The aim of CFIS 22 was to debate European investment screening on national security grounds from a strategic perspective on the theme ‘The Emerging Law of Investment Control in Europe: Screening, Sanctions and Subsidies’. CFIS was a major event which brought together, not just leading academic scholars, EU officials, national experts, diplomats, and policymakers, but also business leaders, think tankers, and representatives of the investment community and civil society, as well as the media from across Europe and beyond. The three-day event was generously funded by Riksbankens jubileumsfond, the Center for International Private Enterprise, the Swedish Institute of International Law, Datenna, Blomstein, and the Institute for Democracy Societas investment screening, foreign investments, CELIS, FDI, ESG, national security, public order, sovereign-driven investment.
{"title":"Article: Report on the CELIS Forum on Investment Screening","authors":"S. Hindelang","doi":"10.54648/eucl2023002","DOIUrl":"https://doi.org/10.54648/eucl2023002","url":null,"abstract":"On 1–3 June 2022, the Common European Law on Investment Screening (CELIS) Institute organized its fourth annual conference ‘2022 CELIS Forum on Investment Screening’ (CFIS22). The Conference was held in Sweden, at Uppsala University. The CELIS Institute is an independent non-profit, non-partisan research enterprise dedicated to promoting better regulation of foreign investments in the context of security, public order, and competitiveness. It was set up in 2020 by Steffen Hindelang and J. Hillebrand Pohl, the convenors of this year’s conference, as a permanent successor to the ‘International Conference on a Common European Law on Investment Screening (CELIS)’, convened by Professor Hindelang and Andreas Moberg in 2019. The aim of CFIS 22 was to debate European investment screening on national security grounds from a strategic perspective on the theme ‘The Emerging Law of Investment Control in Europe: Screening, Sanctions and Subsidies’. CFIS was a major event which brought together, not just leading academic scholars, EU officials, national experts, diplomats, and policymakers, but also business leaders, think tankers, and representatives of the investment community and civil society, as well as the media from across Europe and beyond. The three-day event was generously funded by Riksbankens jubileumsfond, the Center for International Private Enterprise, the Swedish Institute of International Law, Datenna, Blomstein, and the Institute for Democracy Societas\u0000investment screening, foreign investments, CELIS, FDI, ESG, national security, public order, sovereign-driven investment.","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45839687","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}
This article attempts to answer the question whether the distinction between public and private companies is still needed or whether it is outdated. The question will be answered from an EU perspective, while taking the Dutch legal system as a leading example. In the Netherlands, there was a huge time-gap between the introduction of the public company in 1811 and the introduction of the private company in 1971, 160 years later. This seems to justify the question whether we needed the private company at all. Public company, private company, minimum capital requirement, capital maintenance rules, bearer shares, registered shares
{"title":"Article: The Age-Old Distinction Between Public and Private Limited Liability Companies: Should It Stay or Should It Go?: A figment of academics’ imaginations","authors":"H. van Delft, S. Renssen","doi":"10.54648/eucl2023001","DOIUrl":"https://doi.org/10.54648/eucl2023001","url":null,"abstract":"This article attempts to answer the question whether the distinction between public and private companies is still needed or whether it is outdated. The question will be answered from an EU perspective, while taking the Dutch legal system as a leading example. In the Netherlands, there was a huge time-gap between the introduction of the public company in 1811 and the introduction of the private company in 1971, 160 years later. This seems to justify the question whether we needed the private company at all.\u0000Public company, private company, minimum capital requirement, capital maintenance rules, bearer shares, registered shares","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42455640","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}
On 13 October 2022, a broad amendment to the Polish Commercial Companies Code (KSH) entered into force. Under this amendment, the term ‘group of companies’ covers a controlling company and a subsidiary company or companies that are capital companies, following the resolution on participation in the group by a qualified majority of ¾ of the votes of the shareholders’ meeting of the subsidiary company. His means that the will of the companies participating in the group decides whether to apply this new regulation: it does not work ex lege, but ex contractu. binding instructions by a controlling company, groups of companies, interest of a group of companies and interest of a subsidiary company
{"title":"New Group of Companies Law in Poland","authors":"Aleksandra Sikorska-Lewandowska","doi":"10.54648/eucl2022025","DOIUrl":"https://doi.org/10.54648/eucl2022025","url":null,"abstract":"On 13 October 2022, a broad amendment to the Polish Commercial Companies Code (KSH) entered into force. Under this amendment, the term ‘group of companies’ covers a controlling company and a subsidiary company or companies that are capital companies, following the resolution on participation in the group by a qualified majority of ¾ of the votes of the shareholders’ meeting of the subsidiary company. His means that the will of the companies participating in the group decides whether to apply this new regulation: it does not work ex lege, but ex contractu.\u0000binding instructions by a controlling company, groups of companies, interest of a group of companies and interest of a subsidiary company","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":null,"pages":null},"PeriodicalIF":0.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42302665","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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