Einde inhoudsopgave
Towards Social and Ecological Corporate Governance (IVOR nr. 132) 2024/212
212 Aligning shareholder and board responsibilities.
mr. R.A.G. Heesakkers, datum 23-12-2023
- Datum
23-12-2023
- Auteur
mr. R.A.G. Heesakkers
- JCDI
JCDI:ADS944621:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
See section 7.3.2, nr. 197, for my recommendation in relation to the definition of durable success (bestendig succes).
See also for discussion about whether shareholders have an equal duty to exercise their governance rights in pursuit of sustainable success: Dutch Corporate Governance Code 2022, principle 4.4; also Assink 2019, p. 58-59; Assink & Timmerman 2019, par 3; Kemp 2015, par. 8.7; Oost 2019, p. 40; Olaerts 2017; and Kemp 2022; and section 2.3.2, nr. 25, above.
Cf. EU Directive on Long-term Shareholder Engagement, Consideration 14 & Article 3g.
Cf. EU Directive on Long-term Shareholder Engagement, Consideration 15.
See section 5.3.4, nr. 141, above.
In my assessment, all perspectives accommodate a form of shareholder stewardship, oriented towards either the strategic partners of the corporation, the corporation itself or the corporate ecosystem as a whole. Although the institutional and ecosystem perspectives do not provide explicit arguments for prioritizing shareholders in corporate governance, I do not see them proposing any principled objections against a form of shareholder governance. The underlying consensus seems to be that shareholder stewardship involves an alignment of shareholder responsibilities with the general responsibility of the board to encourage the durable success of the corporation with all stakeholder interests being taken into consideration. In adopting the earlier defined definition of success in terms of the larger interests of society and the ecosystems in which the corporation is embedded, such an alignment of responsibilities would transform shareholders into mutual partners of the board with a shared responsibility for ecosystem stewardship.1 Such allocation of responsibility to shareholders would require them to exercise their governance rights in pursuit of the interest of the corporation as a whole, explicitly diverging from the current legal notion of shareholders holding these rights in their own interest.2 Responsible shareholders would then be expected to provide critical reflection to the board in relation to how its strategy affects the larger social and ecological environment in which the enterprise operates.3
Through such an extension of shareholder responsibility, corporate governance may be able to leverage the unique capabilities of particularly large institutional investors to share insights and build networks of collaborative learning across sectors and problem domains.4 Ecosystem stewardship requires a general need for capacity-building at the level of corporate governance to understand the systemic properties of the enterprise as well as their implications for centralized interventions.5 Due to their professionalized and institutionalized nature, existing shareholders may be particularly well equipped to build such capacity for scientific understanding and self-assessment across corporations and industries. By thus including shareholders in ecosystem stewardship, boards may be further enabled to pursue social and ecological strategies which fit the needs and integrity of their environment. Meanwhile, shareholders maintain their key role in providing limits to board autonomy and preventing potential forms of corporate despotism. All in all, I therefore propose to articulate the following recommendation in relation to shareholder stewardship:
RECOMMENDATION 5 (SHAREHOLDER STEWARDSHIP): the legal rights and responsibilities of shareholders should be aligned with the general duty of the board to encourage the durable success of the corporation, orienting shareholder stewardship towards the needs and integrity of the larger social and ecological environment in which the corporation is embedded.