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The Legal Structure of Enterprises (Corporate Governance)

Par : Type de matériel : TexteTexteLangue : français Détails de publication : 2002. Ressources en ligne : Abrégé : Corporate governance as a normative concept appears to be directly linked to economic globalization to the extent that it fits all internationally operating enterprises equally, that it is recommended by international institutions, and that it corresponds to the interests and responsibilities of international investors, in particular institutional investors interested in the primacy of stockholder value. This paper analyzes the meaning and importance of the concept of corporate governance by examining first the international spread of the principles of corporate governance, and second the limits to the influence the concept may exercise on the rules and practices of national corporate law. As regards first the international acceptance of the principles of corporate governance, a distinction is made between, on the one hand, the voluntary introduction of corporate governance, in particular by way of establishing professional standards and codes of conduct or through the recommendation of public authorities or trade associations, and, on the other, by mostly national rather than European legislative action. In general, the latter only transforms existing or desirable best practices into legal rules, but in some regard also takes legislative leadership, e.g., as regards the division of control within a corporation or transparency in the remuneration of board members. Finally, principles of corporate governance may be imposed or enforced through regulatory action, in particular by the agency in charge of regulating the stock market or the courts when they rule on matters of corporate organization or responsibility. Second, as regards the factors limiting general acceptance of the principles of corporate governance, these may be of an economic nature, such as the high concentration of stock ownership in continental Europe, or they may be of a political nature, such as principled resistance to liberal capitalism. In legal terms, however, the principal limitations are due to divergent national concepts of the role and function of enterprises in that they may combine in different ways the interests of stockholders with those of labor, e.g., by a variety of forms of codetermination, or with the protection of the environment or other societal interests. In addition, principles of corporate governance are less easily accepted by corporations whose stock is not listed on the stock market. In sum, corporate governance is a hallmark of globalization given the considerable effect of harmonization and of enhancements in the efficiency of corporate structures. Yet, there remains a degree of diversity of rules and behaviors within the various national systems.
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Corporate governance as a normative concept appears to be directly linked to economic globalization to the extent that it fits all internationally operating enterprises equally, that it is recommended by international institutions, and that it corresponds to the interests and responsibilities of international investors, in particular institutional investors interested in the primacy of stockholder value. This paper analyzes the meaning and importance of the concept of corporate governance by examining first the international spread of the principles of corporate governance, and second the limits to the influence the concept may exercise on the rules and practices of national corporate law. As regards first the international acceptance of the principles of corporate governance, a distinction is made between, on the one hand, the voluntary introduction of corporate governance, in particular by way of establishing professional standards and codes of conduct or through the recommendation of public authorities or trade associations, and, on the other, by mostly national rather than European legislative action. In general, the latter only transforms existing or desirable best practices into legal rules, but in some regard also takes legislative leadership, e.g., as regards the division of control within a corporation or transparency in the remuneration of board members. Finally, principles of corporate governance may be imposed or enforced through regulatory action, in particular by the agency in charge of regulating the stock market or the courts when they rule on matters of corporate organization or responsibility. Second, as regards the factors limiting general acceptance of the principles of corporate governance, these may be of an economic nature, such as the high concentration of stock ownership in continental Europe, or they may be of a political nature, such as principled resistance to liberal capitalism. In legal terms, however, the principal limitations are due to divergent national concepts of the role and function of enterprises in that they may combine in different ways the interests of stockholders with those of labor, e.g., by a variety of forms of codetermination, or with the protection of the environment or other societal interests. In addition, principles of corporate governance are less easily accepted by corporations whose stock is not listed on the stock market. In sum, corporate governance is a hallmark of globalization given the considerable effect of harmonization and of enhancements in the efficiency of corporate structures. Yet, there remains a degree of diversity of rules and behaviors within the various national systems.

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