Les cinq mythes de la gouvernance d’entreprise : perspective économico-juridique nord-américaine

To this day, corporate governance remains the topic of the most intense discussions among scholars, especially concerning its legal and regulatory development over the past few years. Since most of the current developments deal with global concerns about the impact of recent financial crises and their related scandals, academics have not yet been able to settle the score with long-standing matters of corporate governance. Indeed, under the significant influence of an Anglo-Saxon culture, largely disseminated among the literature, the prevailing theoretical framework of corporate governance is still based on a series of preposterous presumptions. These outdated presumptions appear to originate more from rhetorical statements than any deep analysis of the issues characterizing the early era of modern corporate governance. Because over the years they have fulfilled their task of supporting the development of capitalism throughout the industrial world and providing a legitimate rationale for corporate owners to adopt certain aggressive and reckless behaviors, these corporate governance presumptions have since been held up as the cornerstones of an efficient social economy, profitable for all and everyone. With the global economy having encountered a few unfortunate setbacks over the past decades, it is important to question the legal value of these presumptions, as they might have more to do with unsubstantiated myths than any extensive legal or scientific work. The aim of this article is not to present the paramount truth on this topic, but rather to highlight the discrepancies between what have always been considered as the foundations of corporate governance, and what corporate governance should have been had it not been implemented with the sole intention of nurturing certain illegitimate purposes of modern capitalism, such as shareholder primacy or financial profitability. Therefore, this article explores five typical corporate governance myths: (1) the corporation as a nexus of contracts, (2) the shareholders as owners of the corporation, (3) the shareholders as the only residual creditors of the corporation, (4) the effectiveness of shareholder activism, and (5) corporate governance as a legitimate rationale for shareholder primacy. The aggregate theory of corporations?which maintains that the corporation is nothing less than a nexus of contracts and that it may only benefit the shareholders?held its own throughout most of the twentieth century, but now finds itself faced with some more inclusive and realistic theories of unprecedented rigor, such as the consideration of the corporation as an institution pursuing a social purpose. Considering shareholders as the owners of the corporation might therefore be a thing of the past as well. Undeniably, what the recent ups and downs on the financial markets have shown the world is that corporate directors ought to be considered as the central core of the corporation, acting collectively, but independently from the shareholders, and promoting the success of the company, in the interests of all corporate stakeholders. Consequently, shareholders can no longer be considered the owners of the corporation, dictating to directors how they must govern, because the corporation has its own legal personality, effectively managed and controlled by the board of directors. Subsequently, neither can they be considered as the only residual creditors of the corporation, as all the other stakeholders? investments are also at stake. More importantly, while shareholders have become more active over the years, the effectiveness of their involvement in the management of the corporation has been questionable, as they often lack long-term vision and considerations for other stakeholders? interests. Finally, it is quite arguable to still promote shareholders? primacy in today?s world, as law, jurisprudence and doctrine have, timidly but still, embraced the stakeholder theory which states that the board of directors has to consider the whole corporation?s interests first, rather than simply focusing on short term profitability for the shareholders.