Anatomia della "relazione fiduciaria" tra amministratori e azionisti privi del diritto di voto: ragioni di un insuccesso negli Stati Uniti e in Italia

Raffaele, Federico (2013) Anatomia della "relazione fiduciaria" tra amministratori e azionisti privi del diritto di voto: ragioni di un insuccesso negli Stati Uniti e in Italia. Tesi di Dottorato, LUISS Guido Carli, Department of Law > PhD Program in Law and Economics, tutor: Gian Domenico Mosco and Gustavo Visentini, p. 296. [Doctoral Thesis]

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This paper purports that the fiduciary relationship between shareholders and directors is the key for (understanding) corporate governance. In order to demonstrate the fundamental importance of such element, we first develop a comprehensive and innovative theory of fiduciary relationship: in our view, its main characteristic, which distinguishes it from (other) contractual relationships, is that the fiduciary is responsible for the selection and the ensuing management of the beneficiary's interests. Remedies, in turn, are necessary to ensure that the decisions of the fiduciary will be consistent with the interests of the beneficiary. Damages (and disgorgement) for conflict of interests are only one of the two ways by which the effectiveness of fiduciary duties is guaranteed: the right to dismiss the fiduciary, indeed, is the ultimate sanction enabling control of the fiduciary by the principal. The paper then applies this model to the corporate scenario. In such a peculiar environment (i.e. that of listed companies), the most important tool that the beneficiary (i.e. the shareholders, residual claimants) has to protect himself against the fiduciary (i.e. the management) abusing his power is the right to vote (for appointment and termination). Therefore, given that companies are allowed to issue nonvoting shares, the analysis is finally devoted to understanding why a rational investor should buy such shares, being his fiduciary relationship with the directors altered, The paper, thus, compares the history, the financial implications, and the substantive law of a particular kind of nonvoting shares issued in the US and in Italy: the preferred and the so-called “savings” shares ("azioni di risparmio"). However, we show that empirical data confirm that such instruments are not successful. This suggests that voting rights are, for a variety of reasons, much more appealing to investors when they decide to risk their money in the market. It is our belief, and conclusions, that both preferred and "savings" shares are not popular because they alter the physiological fiduciary relationship between shareholders and directors in the corporate context.


Bibliografia: pp. 263-294.

Item Type: Doctoral Thesis (PhD)
Research documents and activity classification: LUISS PhD Thesis
Divisions: Department of Law > PhD Program in Law and Economics
Thesis Advisor: Mosco, Gian Domenico and Visentini, Gustavo
Additional Information: Dottorato di ricerca in Diritto ed economia (XXV ciclo), LUISS Guido Carli, Roma, 2013. Relatori: Prof. Gian Domenico Mosco, Prof. Gustavo Visentini.
Uncontrolled Keywords: Fiduciary Relationship. Diritto di voto. Azioni di risparmio. Preferred Shares.
MIUR Scientific Area: Area 12 - Law > IUS/04 Commercial Law
Deposited by: Chiara Annulli (admin)
Date Deposited: 09 Apr 2013 11:47
Last Modified: 22 Apr 2015 00:14


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