Einde inhoudsopgave
The Decoupling of Voting and Economic Ownership (IVOR nr. 88) 2012/1.2.2.2
1.2.2.2 Ownership Disclosure as a Communication Tool
mr. M.C. Schouten, datum 01-06-2012
- Datum
01-06-2012
- Auteur
mr. M.C. Schouten
- JCDI
JCDI:ADS593600:1
- Vakgebied(en)
Ondernemingsrecht / Rechtspersonenrecht
Voetnoten
Voetnoten
Mathias Siems, Convergence in Shareholder Law 135 (Cambridge University Press 2008).
Communication from the Commission to the Council and the European Parliament — Modernising Company Law and Enhancing Corporate Governance in the European Union A Plan to Move Forward, at 13, COM (2003) 284 final (May 21, 2003).
See Siems, supra note 141, at 135.
Id. at 132-47.
European Commission, supra note 44, at 19, 25.
For an overview, see Siems, supra note 141, at 132-44.
Id. at 138. For an overview of difficulties arising in the cross-border context, see Report by the Expert Group on Cross-Border Voting in Europe (2002) and Zetzsche, supra note 109, at 331. The European Association for Listed Companies (EALIC) bas pressed the European legislature to address this issue among other reasons because 'investors and issuing companies need to be able to identify key shareholders.' Letter from EALIC to the chaimian of the Committee on Legal Affairs of the European Parliament (Jan. 12, 2006), available at http://www.europeanissuers.eu. In the US, listed companies also experience difficulties in mapping their shareholder base; see Kate O'Sullivan, Who Owns Your Stock?, CFO Mag., Oct. 2007.
Report of the Conference Board Research Working Group on Hedge Fund Activism 22 (2008), available at http://ssm.com/abstract=1107027.
Another mechanism through which ownership disclosure can improve corporate governance is by providing a communication tool. Ownership disclosure can enable communication between the company and its shareholders, and among shareholders. This can be particularly valuable in firms with dispersed share ownership.
Knowing fellow shareholders enables shareholders to exchange thoughts, to agree among themselves and to effectively assert their rights.1 The ability for institutional shareholders to communicate prior to shareholder meetings is key if they are to play an important role in the governance of portfolio companies, as envisaged by the European Commission.2 But it may not always be easy to identify fellow shareholders.3 In many jurisdictions, shareholders will rely on ownership disclosure for this.
Communication between the company and its shareholders is also vital. In order for companies to effectively manage their investor relations, they need to have insight into their shareholder base.4 In fact, this was one of the reasons for the Commission to extend the scope of the disclosure rules to holders of derivatives granting access to voting rights.5 There are, of course, other means through which a company can trace the identity of its shareholders.6 For instance, in the case of registered shares or dematerialized bearer shares, the company may be able to track its shareholders down the chain of intermediaries. But in practice this may prove burdensome, in particular in the case of cross-border investments or separation of registered ownership from economie ownership.7 By contrast, an ad hoc disclosure obligation as imposed by the Transparency Directive puts the burden on the beneficial shareholder and thereby ensures timely disclosure of his interests.
In sum, while ownership disclosure in itself may be insufficient for a company to have a complete picture of its shareholder base, it can provide a meaningful contribution. This is evidenced by a survey among U.S. firms, which shows that 25% of respondents learned of activist investors' ownership though an SEC filing.8