The Corporate Interest of Banking Institutions

by Andrea Sacco Ginevri

  

Abstract: This article explores the notion of the “corporate interest” of banking entities in light of the recent evolutions in thelegal framework (such as CRD IV, MIFID II and BRRD).

The analysis focuses on the specific rules and principles governing the structure and management of both private and public banks in the modern era, for the purpose of comparing their scope with the general provisions applicable to industrial corporations.

Thus, the identification of the banks’ corporate interest addresses any tentative solution for the conflict of interests’ issue in the banking field. In other words, once the banking corporate interest has been identified, all the different interests are likely to converge or collide with it, giving rise to the phenomenology of the conflict of interests. Therefore, the conflict of interests – being outside the internal process of selection of the corporate interest which guides the bank management – postulates a comparison between different positions, so that it requires a solution of the contrast deriving from the application of external criteria of prevalence defined by third and impartial authorities.

Summary: 1. Introduction. – 2. The corporate interest of the modern corporation: preliminary remarks. – 3. The corporate interest of the banking entities in light of the recent evolution of the applicable legal framework. – 4. Specific issues concerning listed banks. – 5. The conflict of interests’ issue.

1. The metamorphosis of the legislation concerning the organisation and management of financial institutions – emphasized by the last financial crisis [1] – justifies an updated investigation on the meaning of banks’ corporate interest, in light of both the specific regulatory provisions and the legal framework applicable to banking entities.

The evolution of the relevant legislative system shows an increasing institutionalization of the corporate governance of banks [2], aimed at strengthening the financial stability and prudent management of credit institutions, in response to a systemic crisis which has revealed signs of weakness in the entrepreneurial autonomy of credit institutions [3].

Such change of perspective has started, for companies with publicly raised capital, since after the crisis that has characterized the beginning of the new millennium (Enron, Worldcom, etc.) –with the enactment of the Sarbanes-Oxley Act of 2002 in the United States – and has continued, in response to the most recent financial turmoil (Lehman Brothers, etc.), with the Dodd Frank Act of 2010 in the United States, and the “CRD IV” [4], “MiFID II” [5] and “BRRD” [6] directives and relevant implementing regulations in the European Union.

By way of introduction, it has to be pointed out that credit institutions – although having specific and intrinsic features that justify a special regime including in terms of governance and corporate interest [7] – operate in market scenario, where the needs for financial stability and sound and prudent management of banks have to be balanced with the goals of the investors, typically interested in profits and (in case of significant investments) in the exercise of some form of influence on the company.

In such context the identification of the banks’ corporate interest becomes relevant, being such concept the guideline of any organizational and management decision as well as the benchmark to be taken into account in case of conflicting interests. In other words, only the definition of the main features of the banks’ corporate interest allows shareholders, managers and directors to understand if – during the activity of the bank – a specific interest should be considered as conflicting or convergent with the corporate interest or if it directly qualifies as corporate interest.

The relevance of such assessment depends on the circumstance that, comparing different elements of the same corporate interest, the “weighting rule” is the one used for the adoption of decisions of collective bodies (i.e. the majority principle). On the contrary, in comparing the corporate interest with other interests, the choice of the interest to be protected results from the application of the hierarchy established by the applicable laws and regulations.

In a nutshell, the identification of the main features composing the banks’ corporate interest is crucial in the current period of time, since it has been affected by the significant changes due to the recent evolution of the applicable legal framework.

2. In order to outline the corporate interest of banks, considering the particular business carried out by those entities and the financial regulation applicable to them, it should be recalled that, in several legal systems, the ideological juxtaposition between contractualism and institutionalism is still ongoing.

We have already pointed out the effects of this prospective analysis, highlighting how it becomes a primary factor At the beginning of the new millennium, the ability of corporations to raise funds on capital markets – expanding the range of products and solutions offered to potential investors in order to satisfy their specific needs – was considered a key factor for their development and growth. At that time, the interest of (large) corporations was generally recognized in the “shareholders’ value” formula.

However, shortly thereafter, the corporate interest of “closed corporations” – where relevance is mainly given to the interests of a limited number of subjects – has started to be distinguished from the corporate interest of “public companies”, whose organization and activity involve interests of a broad range of shareholders and stakeholders, as typically happens in banks. Therefore, law provisions governing public companies were characterized by a higher degree of strictness «in order to protect saving holders» [8].

It is also noted that, other than in close corporations where shareholders actively participate to the management and financing of the company [9], in public companies the shareholders usually tend to have a more passive role (so called “rational apathy”) not interested in governance rights with the consequence to be more exposed to the risk of abuses by the management.

Nevertheless, in both the abovementioned structures (close vs. open corporations), the joint-stock company emerges as the instrument for the most efficient management of a «permanently organized and expected to be long-lasting» enterprise [10]. Such endemic feature of the joint-stock company shall prevail over divergent and conflicting interests which might arise, as highlighted by the U.S. case law, that prevents the exercise of shareholders’ rights when they may expose the company to the risk of insolvency [11].

In addition, since joint-stock companies are managed by directors (who typically are not shareholders), the exercise of their powers shall in any case be required to be made in a way which is not prejudicial to the interest of the shareholders. In other terms, although it is not possible to define ex ante specific goals and targets in the management of a business – given that, in general terms, any interest pertaining to the company’s activity may become relevant – the interest of the shareholders shall limit and define a perimeter to the powers and action of the managerial body [12].

The shareholders’ interest [13], as a limit for managers’ activity, does not represent a clear border, taking into consideration the different positions (and therefore, the different interests) within the shareholders as a class. In this regard, shareholders can be classified as (a) industrial or financial, (b) long-term or short-term, (c) current or potential, (d) ordinary or belonging to special categories, (e) shareholders or “quasi-shareholders” (including both holders of equity financial instruments or transient corporate positions, such as in case of empty voting or encumbered shares) [14].

Shareholders can be, in turn, financial institutions representing further and multiple interests further up the corporate chain, giving rise to the phenomenon also known as the agency capitalism, which is now carefully studied in the overseas financial systems [15].

The balance between organizational and contractual components of the corporate phenomenon underlines that the main role of corporate activity leads to prefer corporate interests over the individual ones in case of conflict among them. Therefore, the goals of the corporation guiding the management decisions have not an abstract content but are affected by the evolving set of values imposed to the business first of all by the shareholders and then by the relevant economic context.

3. The considerations mentioned above shall take into account, in the banking sector, the new rules and principles on corporate governance defined by the recently enacted regulations (see, for instance, the guidelines of EBA and the recommendations of the Basel Committee on Banking Supervision) [16].

Such provisions intend to promote a sound and prudent management of banks which is in compliance with the whole economic system [17].

This perspective explains the progressive institutionalization of banks, whose autonomy has suffered material limitations in the name of, and to protect, general interests. To achieve this primary goal, the banking legal system has entrusted the management of credit institutions to high-level, qualified and independent top managers [18], therefore resulting in the “managerialization” of credit institutions which are now composed of corporate bodies having an adequate representation apt to reflect «a wide enough range of experiences» [19].

Also the procedures for the appointment of the corporate bodies of banks promote a stronger coordination between directors and shareholders, entrusting the directors with the task to identify the optimal quali-quantitative composition of the corporate bodies (together with the ideal profile of the candidates to each office) [20] and requiring the shareholders to submit and vote for candidates consistent with such optimal composition as defined by the same managing board.

The “institutionalist trend” of the banking corporate interest is underlined by several regulatory provisions including, by way of example: (i) the change in the balance of powers between directors and shareholders, (ii) the stronger requirement of fit and proper requisites for directors; (iii) the duty of abstention for directors and shareholders bearing an interest in conflict with the corporate interest of the bank; (iv) the possible removal of the directors by order of the supervisory authority; and so on. All the above elements are indicia of an increasing and progressive professionalization in the management of credit institutions, strictly connected to and in line with the progressive institutionalization of the banks which are called to act (first of all) in the name and to ensure general interests.

This framework has been recently integrated by the Directive 2014/59/EU (“BRRD”), and, in particular, by the provisions requiring credit institutions to periodically prepare and update appropriate recovery plans (i.e. preparatory instruments aimed at preventing the crisis). Such plans contain measures to prevent and rebalance the financial situation of credit institutions, in accordance with the principle of sound and prudent management [21].

The innovation of the bank’s corporate interest deriving from the BRRD can be inferred by the following elements: although it is clear that the new banking regulation on financial crises aims at reducing practices of moral hazard, once facilitated by the bail-out perspective, the new provisions on the preparation function should foster the shareholders’ protection [22].

Indeed, according to a consolidated principle, the “economic cost” of a financial distress has been first paid by equity investors [23]. However, one of the most significant innovations provided by the BRRD directive consists in the mandatory and preventive safeguard of financial institutions’ stability, aimed at excluding – or at least mitigating – the risk for investors to suffer the losses that would have otherwise been incurred.

To this end, the bank’s administrative body, on the one hand, and the supervisory authority, on the other hand, are called from the beginning, with different missions, to ensure that the credit institution disposes of an ex ante large set of tools, all effective and efficient in order to face potential and future situations of instability.

This means that the preparation function of banking recovery substantially aims at protecting the shareholders’ and other qualified investors’ positions, justifying the management to propose and adopt the precautions contained in the applicable recovery plans, and therefore to preserve the financial and economic stability of the credit institution itself, also taking into account its future evolution.

It is now time to investigate which subjects, among the investors in risk capital, are actually protected by the BRRD measures.

In this regard, the alignment of the different components of the corporate interest of credit and financial institutions can be fully appreciated only in a medium-long term perspective; and therefore in a time frame in which the (long-term) interest of the shareholders to the profitability of their investment physiologically tends to converge – or, sometimes, even to coincide – with the interest of the other stakeholders (such as creditors, employees, depositors, supervisory authorities) to an adequate economic and financial stability of the bank which protects their respective needs.

The above considerations explain the ratio underlying the recommendation included in the preface to the corporate governance principles promoted by the Basel Committee, pursuant to which «The primary objective of corporate governance should be safeguarding stakeholders’ interest in conformity with public interest on a sustainable basis. Among stakeholders, particularly with respect to retail banks, shareholders’ interest would be secondary to depositors’ interest» [24].

However, the above does not imply that in the banking sector there is a clear prevalence of “debt governance” over “equity governance” (prevalence that, where fully implemented, would have led to stronger governance measures of protection of the creditors’ position) [25], but only that – amongst the different components of the banks’ corporate interest – the weighting criterion privileges the perspective of shareholders interested to the sustainable growth of the bank, and thus for the preservation of the investment’s value in a medium-long term.

In other words, within the category of shareholders (including the holders of risk-bearing instruments) the banking legal system protects the long-term shareholders – increasingly protected and incentivated both by the European and domestic legislators – in view of their investment policy which is assumed to be oriented to the sustainable growth of the company in a medium-long term (in line with their nature of “loyal shareholders”) [26].

The above considerations suggest that the banks’ corporate interest is moving towards an area in between the traditional shareholders’ value formula and the neo-institutionalists’ theories. Such a grey-area is known, in the common-law legal systems, as the “enlightened shareholder value”, which appears as a perfect synthesis of the modern contractualistic vision of the corporate phenomenon [27], and finds its blessing in Article 172 of the U.K. Companies Act of 2006 [28] whose primary goal is the remuneration of the investors in a long-ter perspective, taking into consideration and weighting the needs and interests of all the stakeholders [29], on the assumption that «increasing shareholder value does not conflict with the long-run interests of other shareholders» [30].

4. The identification of the corporate interest in credit institutions with shares are listed on regulated markets is characterized by other specific elements, deriving from the provisions applicable to such companies. Consequently, certain conflicts/relations which are typical of, and relevant in, the organization and activity of credit institutions are amplified and emerge – and namely: (aa) the managers-shareholders conflict; (bb) the controlling-minority shareholders conflict; and (cc) the conflict between the shareholders and the company, on one side, and third parties that enter into contact with the latter, including qualified stakeholders, on the other side (the shareholders/corporation non-shareholder conflict).

The weight of each of the abovementioned conflicts/relations in the overall analysis of the phenomenon from time to time under examination depends on both the ownership structure of the issuer and the nature of the relevant transaction [31].

This is the reason why in listed banks – which, in Italy, are mainly characterized by a dispersed ownership – the conflict between directors and shareholders is particularly pronounced, especially in a period of time in which the banking legal system has privileged and strengthen the autonomy and independence of directors, increasing their powers and responsibilities, and, at the same time, has reduced the power of influence of all shareholders, including majority shareholders.

Any thought on this issue moves from the circumstance that shareholders of Italian banks – despite they are now requested to “motivate” the appointment of new directors not having the requisites recommended by the ceasing board of directors [32] – maintain the right to appoint representatives of their own choice in the board of directors and, therefore, the right not to confirm (or to remove, even without cause) those directors who no longer have their trust [33].

Directors, therefore, remain fiduciary agents of the shareholders (from a substantial point of view), to whom they ultimately relate and respond; notwithstanding the above, we cannot forget the innovative effects represented by the recent introduction, in the Italian Banking Act, of the power to remove of the supervisory authority the company representatives, which in some way affects the fiduciary relationship between the shareholders (as principals) and the directors (as agents) [34].

As a consequence of the above, the directors of listed banks, once elected to define the business plan for the company growth, shall not only be called to appreciate and weight the various interests of traditional stakeholders (shareholders, bondholders, depositors, employees, third parties, etc.), but first of all they shall be called to identify, amongst the different interests arising in such a fractioned and heterogeneous corporate scenario, an interest of the shareholders which is sufficiently defined and unitary. Such activity shall be carried out, in any case, within the limit (which is external to the bank’s corporate interest), represented by the sound and prudent management of the bank.

The legal and factual framework above described explains why an even stronger conflict between short-term interests of certain aggressive funds (short term shareholders) and the long-term interests of loyal shareholders (patient capital) is currently animating listed banks, guiding their managers in the selection of the shareholders’ interests [35]. By the way, also the evolution of the special regulation of banks is consistent with such international trend, which aims at encouraging the long-termism in companies operating in financial markets, by granting long-term shareholders with certain privileged rights [36].

Indeed, by strengthening the long-term shareholders’ activism, the decision-making processes of directors are indirectly protected from the potentially-harmful influence of short-term investors, generally interested in the short-term growth of the share price even against the long-term business plans of the company [37]. In other words, considering the contrast between the short-term interest in maximizing the equity investment and the long-term interest for the growth of the company, the foreign and domestic legislators have started to promote a significant strengthening of the role and powers of long-term shareholders, in order to ensure the directors of credit and financial institutions look at the interest of the latter while in the process of weighting and identification of the different elements and needs which compose and determine in the aggregate the corporate interest of the bank.

In a nutshell, the empowerment of long-term shareholders, aimed at granting them a privileged relationship with the management, is consistent with the corporate interest of the banking system to the growth of banking institutions with dispersed ownership, promoting discussion and debate between directors and shareholders in support of a sound and prudent management. In other terms, the major banks should raise their capitals within a rather stable shareholding, discouraging excessively aggressive investment policies (specifically those carried out by short-term shareholders) which potentially compromise the prudent management of the bank [38].

5. The arguments discussed above show a tendency of the recent banking and financial regulations to apparently define the banks’ corporate interest in neo-institutional terms, where the rights and prerogatives of the directors and the supervisory authorities in the organization and management of the bank are strengthen, with a partial reduction of powers and influence of the shareholders, including controlling shareholders, over the bank [39].

The circumstance that the above-mentioned institutionalist approach is more apparent than real can be inferred from the circumstance that – even in the banking sector – in the process of assessment and weight of all the interests raised having an intrinsic “corporate” nature, the shareholders’ interest continues to prevail over all the other.

In other words, the banks’ directors shall continue to be guided in their decision-making process by the best interest of the shareholders. The latter is, however, an abstract concept, construed on the basis, and referred to the idea, of virtuous shareholders that pursue sustainable profitability targets in view of a sound and prudent growth of the company in the long term.

Such apical goal reduces the possibility for majority shareholders to gain personal benefits from their control position, with predictable adverse effects on the market of the (transfer of) control over banks and on the value of the relevant majority shareholding (considering that the control premium will predictably have a lower value in the banking sector than in other related sectors).

Several indexes in such a way can be inferred from the relevant regulations and, in particular – not only from the governance provisions (as anticipated in para. 2 above), but also – from the recent provisions concerning ownership structure, banking crisis, extraordinary transactions and so on.

Therefore the board of directors of credit institutions shall prepare and implement, together with the management, business plans consistent with such objectives. In turn, shareholders of credit institutions shall exercise their corporate rights in a way to define the guidelines to which the company shall look at and comply with, in order not to jeopardize the sound and prudent management.

In principle, modern banks, a fortiori where listed, still remain a deal among shareholders, originated by a private initiative and instrumental to create the profits expected by its investors (of risk capital). Nevertheless, these profit targets (and therefore the management propedeutical to the achievement of the same) must not, and cannot, go beyond the limits and rules of risk-containment and sound and prudent management of the banks; limits and rules which are aimed at safeguarding all the stakeholders directly or indirectly interested in the proper functioning and outcome of the business activity of the bank.

As a consequence of the above, it can be assessed, once the banking corporate interest has been identified in such terms, all different interests (whether additional or unrelated) are likely to converge or collide with it, thus giving rise to the phenomenology of the conflict of interest. The conflict of interest – being outside the internal process of selection of the banking corporate interest which guides the bank management – postulates a comparison between different positions, and therefore requires a resolution of the contrast deriving from the application of external criteria of prevalence defined by third and impartial authorities [40].
 

 

 

[1] See, among others, Mülbert, Corporate Governance of Banks, in European Business Organization Law Review (2010), 420 et seq.; Wohlmannstetter, Corporate Governance von Banken, in Hopt and Wohlmannstetter (eds.), Handbuch Corporate Governance von Banken, Munich (2011), 31 et seq.; Vv.Aa., Bank Governance, in Principles of Financial Regulation, Oxford (2016), 370 et seq.

[2] See Hopt, Corporate Governance of Banks and Other Financial Institutions after the Financial Crisis, in Journal of Corporate Law Studies (2013), 219 et seq.; Id, Corporate Governance of Banks after the Financial Crisis, in Wymeersch, Hopt and Ferrarini (eds.), Financial Regulation and Supervision, NY, Oxford University Press (2012), 337 et seq.; Enriques-Zetzsche, Quack Corporate Governance, Round III? Bank Board Regulation Under the New European Capital Requirement Directive, in Theoretical Inquiries in Law (2015), 218 et seq.; Vv.Aa., The Law on Corporate Governance in Banks, Chiu, Cheltenham (eds.) (2015).

[3]  See, among others, Capriglione, La governance bancaria tra interessi d’impresa e regole prudenziali (disciplina europea e specificità della normativa italiana), in De Angelis, Martina and Urbani (eds.), La riforma societaria alla prova dei suoi primi dieci anni, Padova (2015), 92; Andenas-Chiu, The Foundations and Future of Financial Regulation, London (2014), 14 et seq.

[4] Directive 2014/36/EU and Regulation 2013/575/EU, both dated June 26, 2013.

[5] The regulatory framework known as “MiFID II” is composed by Directive 2014/65/EU and Regulation 2014/600/EU, the latter called “MiFIR”.

[6] The regulatory framework “BRRD” refers to Directive 2014/59/EU.

[7] On the “speciality” of banking regulation, also concerning the corporate governance, see, ex multis, E.F.Fama, What’s different about banks?, in Journal of Monetary Economics (1985), 29 et seq.

European Central Bank, October 2014, pp. 3 and 4, viewable at www.ecb.europa.eu/pub/pdf/other/ aggregatereportonthecomprehensiveassessment.

[8] See d’Alessandro, La provincia del diritto societario inderogabile (ri)determinata. Ovvero: esiste ancora il diritto societario?, in Riv. soc. (2003), 34 et seq., in particular 39.

[9] On the diversity, also in terms of corporate governance and protected interests, between concentrated ownership and dispersed ownership see Gelter, Taming or Protecting the Modern Corporation? Shareholder-Stakeholder Debates in a Comparative Light, in NYU J. of L. and Bus. (2011), 641 et seq.; Hansmann- Kraakman, The End of History for Corporate Law, in Geo. L. J. (2001), 439 et seq.; Keay, Shareholder Primacy in Corporate Law: Can It Survive? Should It Survive?, in European Company and Financial Law Review (2010), 369 et seq.; Coffee Jr., The Rise of Dispersed Ownership: The Roles of Law and the State in the Separation of Ownership and Control, in Yale L. J. (2001), 1 et seq.

[10] See Libertini, Scelte fondamentali di politica legislativa e indicazioni di principio nella riforma del diritto societario del 2003. Appunti per un corso di diritto commerciale, in Riv. dir. soc. (2008), 232.

 

[11]  See In re Color Tile, Inc., 2000 U.S. Dist. LEXIS 1303, 2000 WL 152129, 5 (D. Del. Feb. 9, 2000); SV Inv. Partners, LLC v. Thoughtworks, Inc., 7 A.3d 973 (Del Ch. 2010). Regarding the prohibition of the redemption of shares, or other instruments, for companies currently (or potentially, after the disbursement) insolvent see, in general terms, the following case law: In re Int’l Radiator Co., 10 Del. Ch. 358, 92 A. 255, 256 (Del. Ch. 1914); Farland v. Wills, 1975 Del. Ch. LEXIS 212, 1975 WL 1960 (Del. Ch. Nov. 12, 1975); Vanden Bosch v. Michigan Trust Co., 35 F.2d 643, 644-45 (6th Cir. 1929); Clapp v. Peterson, 104 Ill. 26, 30 (Ill. 1882); Cring v. Sheller Wood Rim Mfg. Co., 98 Ind. App. 310, 183 N.E. 674, 678 (Ind. App. 1932); Rider v. John G. Delker & Sons Co., 145 Ky. 634, 140 S.W. 1011, 1012 (Ky. Ct. App. 1911); Hurley v. Boston R. Hldg. Co., 315 Maet seq. 591, 54 N.E.2d 183, 198 (Maet seq. 1944); McIntyre v. E. Bement’s Sons, 146 Mich. 74, 109 N.W. 45, 47 (Mich. 1906); Mueller v. Kraeuter & Co., 131 N.J. Eq. 475, 25 A.2d 874, 875 (N.J. Ch. 1942); Topken, Loring & Schwartz, Inc. v. Schwartz, 249 N.Y. 206, 163 N.E. 735, 736 (N.Y. 1928); Richardson v. Vt. & Maet seq. R.R. Co., 44 Vt. 613, 622 (Vt. 1892); Koeppler v. Crocker Chair Co., 200 Wis. 476, 228 N.W. 130, 131 (Wis. 1929). In doctrine: R.M.Buxbaum, Preferred Stock-Law and Draftsmanship, 42 Cal. L. Rev. 243, 264 (1954); M.Wormser, The Power of a Corporation to Acquire Its Own Stock, 24 Yale L.J. 177, 183, 185-86 (1915). For the notion of “insolvency” under Delaware law – intended both as the inability of the company to fulfill its obligations and as excess of liabilities over assets – see N. Am. Catholic Educ. Programming Found., Inc. v. Gheewalla, 2006 Del. Ch. LEXIS 164, 2006 WL 2588971, at *10 (Del. Ch. Sept. 1, 2006), aff’d, 930 A.2d 92 (Del. 2007); Prod. Res. Gp., L.L.C. v. NCT Gp., Inc., 863 A.2d 772, 782 (Del. Ch. 2004).

[12]  In these terms Angelici, La società per azioni e gli «altri», in L’interesse sociale tra valorizzazione del capitale e protezione degli stakeholders, Acts of the conference in memory of Jaeger, Milano, Giuffré (2010), 56-7.

[13] The case of companies belonging to a group is different, considering that the prejudice shareholders’ interes shall be assessed from the perspective of the entire group.

[14] In relation to such market distorting phenomena see Hu-Black, Empty Voting and Hidden (Morphable) Ownership: Taxonomy, Implications, and Reform, in Bus. Law. (2006), 1057 et seq.; Martin- Partnoy, Encumbered Shares, in U. Ill. L. Rev. (2005), 775 et seq.; Maugeri, Record date e “nuova” inscindibilità della partecipazione azionaria, in Riv. dir. comm. (2011), 107 et seq.; Scano, Conflicts of Interest in Modern Financial Markets: The Case of Empty Voting, in Riv. soc. (2013), 163 et seq.; De Luca, Titolarità vs. legittimazione: a proposito di record date, empty voting e proprietà nascosta di azioni, in Riv. dir. soc. (2010), 312 et seq.

[15] See Gilson-Gordon, The Agency Costs of Agency Capitalism: Activist Investors and the Revaluation of Governance Rights, in Columbia Law Review (2013), 883 et seq., as well as, successively, Agency Capitalism: Further Implications of Equity Intermediation, in Vv.Aa., Research Handbook on Shareholders Power, Cheltenham (2015), 32 et seq.

[16] Reference is made to Eba, Guidelines on Internal Governance of 27 September 2011, available at http://www.eba.europa.eu; Basel Committee on Banking Supervision, Guidelines. Corporate governance principles for banks, July 2015, available at http://www.bis.org.

[17] See, ex multis, Hopt, Better Governance of Financial Institutions, available at www.ssrn.com, 2013, 15 et seq.; Laeven- Levine, Bank governance, regulation, and risk taking, in Journal of Financial Economics (2009), 259 et seq. Becht, The Governance of Financial Institutions in Crisis, in Grundmann (ed.), Festschrift für Klaus J. Hopt, Berlin (2010), 1615 et seq.; Wohlmannstetter, Corporate Governance von Banken, supra, 44 et seq.; Mülbert, Corporate Governance of Banks, in European Business Organization Law Review (2009), 19 et seq.

[18] In this terms Capriglione, La governance bancaria tra interessi d’impresa e regole prudenziali (disciplina europea e specificità della normativa italiana), supra, 119.

 

[19]  See Article No. 91, paragraph 1, of Directive 2013/36/EU. Amplius Enriques-Zetzsche, Quack Corporate Governance, Round III?, supra, 218 et seq.; Hopt, Corporate Governance of Banks and Other Financial Institutions after the Financial Crisis, in Journal of Corporate Law Studies (2013), 219 et seq.; G20/OECD, Principles of Corporate Governance, available at http://www.oecd.org (2015), 60 et seq.

[20] See Title IV, Chapter 1, Section IV (“Composition and appointment of corporate bodies”) of the Circular No. 285 of December 17, 2013 published by the Bank of Italy, as updated on May 6, 2014.

[21] See Troiano, Recovery plans in the context of the BRRD framework, in Open Review of Management, Banking and Finance (2015), 49 et seq.

 

[22] See Amorello–Huber, Recovery planning: a new valuable corporate governance framework for credit institutions, in Law and Economics Yearly Review (2014), 314 et seq.

[23]  Which explains the qualification – in terms of “residual claimants” – that, in the foreign legal and corporate literature, is usually attributed to shareholders. On this topic see Fama–Jensen, Agency Problems and Residual Claims, in J.L. & Econ. (1983), 327 et seq.; Macey, Fiduciary Duties as Residual Claims: Obligations to Nonshareholder Constituencies from a Theory of the Firm Perspective, in Cornell Law Review (1999), 1266 et seq.; Easterbrook-Fishel, Voting in Corporate Law, 26 J.L. & Econ. (1983), 395 et seq.; Jensen-Meckling, Theory of the Firm, Managerial Behavior, Agency Costs and Ownership Structure, in J.Fin. Econ. (1976), 305 et seq.; Hart, An Economist’s Perspective on the Theory of the Firm, in Columbia Law Review (1989), 1757 et seq.

[24] See Basel Committee on Banking Supervision, Guidelines. Corporate governance principles for banks, July 2015, available at www.bis.org, 3.

severo”, viewable on http://www.repubblica.it_economia_2014_10_26.

[25]  See, most recently, S.L.Schwarcz, Rethinking Corporate Governance for a Bondholder Financed, Systemically Risky World, available at www.ssrn.com (2016), 7 et seq.; Capriglione and Masera, La corporate governance delle banche: per un paradigma diverso (Corporate Governance of banks: a different paradigm), in RTDE, 4 (2016), 310 et seq.

[26]  Long-term shareholders, indeed, will benefit – during the term of their investment in risk capital – from the advantages related to the preparatory measures of the reorganization. Their contribution in terms of stability will be appreciated only in the long term (potentially involving sacrifices for the shareholders themselves in an initial phase).

[27] See amplius Keay, The Enlightened Shareholder Value Principle and Corporate Governance, London (2013), 16 et seq.

[28] Article No. 172 of the Companies Act 2006 (“Duty to promote the success of the company”), in the first paragraph, sets forth: «A director of a company must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole, and in doing so have regard (amongst other matters) to (a) the likely consequences of any decision in the long term, (b) the interests of the company’s employees, (c) the need to foster the company’s business relationships with suppliers, customers and others, (d) the impact of the company’s operations on the community and the environment, (e) the desirability of the company maintaining a reputation for high standards of business conduct, and (f) the need to act fairly as between members of the company».

[29] The essential characteristics of the shareholder value are well summarized by Millon, Enlightened Shareholder Value, Social Responsibility, and the Redefinition of Corporate Purpose Without Law, available at www.ssrn.com (2010), in the following terms: «Enlightened shareholder value (ESV) is the idea that corporations should pursue shareholder wealth with a long-run orientation that seeks sustainable growth and profits based on responsible attention to the full range of relevant stakeholder interests. This approach to management contrasts with a short-term focus on current share price even when that objective entails immediate or longer-term negative effects on nonshareholders. ESV still recognizes the priority of shareholder interests and therefore differs from a pluralist management model based on balancing of all stakeholder interests».

 

[30]  In this terms Copeland, Koller and Murrin, Valuation, Measuring and Managing, NY (1995), 22.

 

[31]  The triple investigation perspective indicated is suggested by Davies, Enriques, Hertig, Hopt and Kraakman, Beyond the Anatomy, in The Anatomy of Corporate Law, New York (2009), 305 et seq.

[32] Compare Article No. 2.1 d, Section IV of the abovementioned Circular of the Bank of Italy.

comunitaria degli aiuti di stato, in Riv. trim. dir. ec., 2013, II, p. 53.

[33] See Jacobs, Patient Capital: Can Delaware Corporate Law Help Revive It?, in Wash. & Lee Law Review (2011), in particular 1658-9. See also Allen, Jacobs and Strine Jr., The Great Takeover Debate: A Meditation on Bridging the Conceptual Divide, in Univ. of Chicago Law Review (2002), particularly 1073, who suggested a three-years mandate for the administrative body («[O]nce elected, [directors] would serve guaranteed three-year terms»). See, recently, Cremers and Sepe, The Shareholder Value of Empowered Boards, in Stanford Law Review (2016), 67 et seq., especially 139 et seq.

comunitaria degli aiuti di stato, in Riv. trim. dir. ec., 2013, II, p. 55.

[34] See Bebchuck, The Case for Increasing Shareholder Power, in Harvard Law Review (2005), 839 [«to address the concern that some shareholder-initiated proposals could be adopted because of transient interests, lapses, or distortions, the proposed regime would allow shareholder-initiated governance changes to go into effect only if they enjoy shareholder majority support in two successive annual meetings. Changes would thus be adopted only if they are viewed as value-enhancing by a stable majority of shareholders over a considerable period of time, which would provide ample opportunity for management to present its case. The proposed regime also would facilitate management counter-proposals to make it more likely that the menu offered to shareholders would include the value-maximizing option»]; Dignam, The Future of Shareholder Democracy in the Shadow of the Financial Crisis, in Seattle University Law Review (2013), 1639 et seq.

[35]  See Bolton-Samama, L-shares: Rewarding Long-term investors, available at www.ssrn.com (2012), 1 et seq.; Fried, The Uneasy Case for favoring Long-term Shareholders, available at www.ssrn.com (2014), 1 et seq.; Strine, One Fundamental Corporate Governance Question We Face: Can Corporations Be Managed for the Long Term Unless Their Powerful Electorates Also Act and Think Long Term?, 66 Business Lawyer (2010), 1 et seq.; Hazen, The Short-Term/Long-Term Dichotomy and Investment Theory: Implications for Securities Market Regulation and for Corporate Law, 70 North Carolina Law Review (1991), 137 et seq.; Bebchuk-Roe, A Theory of Path Dependence in Corporate Ownership and Governance, 52 Stanford Law Review (1999), 127 et seq.

 

[36] See Fried, The Uneasy Case for Favoring Long-Term Shareholders, in Yale Law Journal (2015), 1615 et seq.

[37] On this topic see Jensen, Value Maximization, Stakeholder Theory, and the Corporate Objective Function, in Journal of Applied Corporate Finance (2001), 8 et seq. See also the considerations of the Court of Chancery of Delaware in Katz v. Oak Indus., Inc., 508 A.2d, 1989, 879: «[i]t is the obligation for directors to attempt, within the law, to maximize the long-run interests of the corporation’s stockholders».

[38] As recently observed by Park, Reassessing the Distinction Between Corporate and Securities Law, available at www.ssrn.com (2016), 56-7, «The primary goal of corporate law is often said to be shareholder wealth maximization, but because shareholders have different time horizons, wealth maximization does not completely unify their interests. The interests of short-term and long-term owners often conflict».

[39] Neo-institutionalist theories of the corporate interest of large companies are widespread among those US scholars who enhance domestic provisions granting the administrative body with the exclusive power to manage the company, similarly to Article No. 2380-bis of the Italian Civil Code (e.g., see Section 141 of the Delaware Coporate Code, pursuant to which «the business and affair of every corporation (…) shall be managed by or under the direction of a board of directors»). For such interpretative approach see Stout, The Shareholder Value Myth: How Putting Shareholders First Harms Investors, Corporations, and the Public, San Francisco (2012), 5 et seq.; Blair-Stout, A Team Production Theory of Corporate Law, in Vanderbilt Law Review (1999), 253 et seq.; Elhauge, Sacrificing Corporate Profits in the Public Interest, in N.Y.U. Law Review (2005), 783 et seq.; Mitchell, The Legitimate Rights of Public Shareholders, in Washington Law Review (2009), 1639 et seq.; Schwartz, Proxy Power and Social Goals—How Campaign GM Succeeded, in St. John’s Law Review (1971), 770 et seq.

[40]  The choice to consider prevailing or recessive the banking corporate interest in respect to other and different interests entirely depends on the choices made by / in the applicable laws and regulations, which define, in general and abstract terms, the ranking of the interests that the legal system protects. This explains, for example, the prevalence of the customers’ interest in case of conflict with the banks’ corporate interest and, at the same time, the prevalence of the latter in case of conflict with the personal interests of shareholders or directors, and so on. This regulatory trend characterizes also foreign legal systems, in particular after the recent financial crisis, where there is a distintion between the various types of conflicts which typically characterize the banking organization and activity, and namely those between the bank and (i) its management/administrative body, or (ii) its shareholders, or (iii) its creditors/depositors or, finally (iv) the competent supervisory authorities. On this matter see, ex multis, Hopt, Better Governance of Financial Institutions, available at www.ssrn.com (2013), 15 et seq.; Laeven-Levine, Bank governance, regulation, and risk taking, in Journal of Financial Economics (2009), 259 et seq.

Author

Andrea Sacco Ginevri is Adjunct Professor of Law & Economics at LINK Campus University of Rome and Ph.D in Law and Economics at Roma Tre University (e-mail: andreasacco21@hotmail.com).