It does not require a vote on a meeting to consider the use of one (consider these points) although all shareholders must sign and approve for them to become valid. This is the first attempt to link trade policy instruments – in particular the trend towards the “regionalization” of trade beyond WTO multilateral rules – to political votes. This link between the ATRs and the UNGA vote is new to both political scientists and international trade experts. This is unexpected because trade agreements are not discussed within UNGA and – with the exception of a few recent questions posed by the Second Committee of the UN General Assembly [vi] [vii], which deals with economic and financial issues – it rarely raises trade policy issues and leaves it to the WTO and UNCTAD. This explanatory and empirical presentation has a normative impact on some of the most fundamental debates in corporate law. Thus, understanding shareholder agreements imposes two essential distinctions in corporate law: that control of the board of directors should be accompanied by fiduciary duties, while the exercise of contractual rights should not take place, and that shareholders negotiate discretionary “residual rights”, while other stakeholders, such as creditors, protect themselves contractually. The extensive use of contractual rights by shareholders requires us to review the type of control on both fronts. It also raises the fundamental normative question of whether it is desirable for shareholders to contractually redeploy exercise rights that are otherwise related to share ownership and the corporate charter. It turns out that this view is wrong.
I show that about 15 per cent of the companies that have gone public in the last six years have done so subject to a shareholders` pact. Shareholders are using these agreements to largely transform their rights. They are used, penetrating, to shrink on the composition of the board of directors. The vast majority of agreements confer appointment rights on certain shareholders, and more than half of them contain a contract to specifically coordinate certain or all parties to an agreement. The agreements are also used to enter into contracts between the shareholders and the company itself. In a significant minority of agreements, the company grants vetoes to certain shareholders over important company decisions, such as mergers, CEO layoffs or changing business lines. Other agreements waive the doctrine of enterprise opportunity, limit the portability of shares in a variety of possibilities, or mandate arbitrations of claims. Most worrying is that, in most agreements, the company commits to indefinitely supporting certain candidates on the shareholder`s board of directors by listing candidates and using its best efforts to select candidates. The content of these agreements therefore departs, in several respects, from what we also know about the company`s partner contracts. The second contribution of the article is empirical.
To the extent that you exist, the popular opinion about shareholder agreements is that they are common in private companies, but private companies are the dark matter of the corporate universe – important, but difficult to study empirically. On the other hand, in state-owned enterprises, it is assumed that shareholder agreements play a trivial or non-existent role. If most decisions are made, when the owners, who together hold more than 50% of the shares, agree on an application at a meeting (perhaps to approve the bonuses of the directors), then this request is supported independently of the opinions of the others.