Corporate governance studies remark on the dichotomy between concentrated and dispersed corporate ownership and consider the prevalence of controlled corporations in a given system as an indicia of "bad" corporate law.
It is argued that those systems present weak equity markets, offer poor protection to shareholders, and create a difference of value between controlling and minority shares.
However, recent studies emphasise the possible benefits linked to the presence of controlling shareholders (especially as to the effect of stabilising corporate governance, reducing short-termism and monitoring directors). However, in controlled corporations a different agency problem raises and involves the relationship between majority and minority shareholders.
Under this scenario, it could be interesting to verify whether the different means possibly adopted to establish corporate control (such as shareholder agreements, corporate group, and multiple voting shares) generate different effects (in terms of idiosyncratic benefits and limits) on corporate governance, corporate performance and corporate value.
This project is mainly focused on shareholder agreements, being the control-enhancing device most frequently adopted in EU corporations. Also, this kind of device virtually allows to exert very pervasive powers of control over the corporation, such as hiring and firing managers, appointing auditors, defining the composition of board's committees, fixing the maximum amount of voting shares owned by each shareholders, defining the main strategies to be followed by the managements, and so on.
This project will investigate some legal and economic issues still debated and controversial as to shareholder agreements, vis-à-vis to other control-enhancing mechanisms.
Despite some of the topics involved in this research are diffusely debated in the national and international literature, their assessment is anything but definitive.
In particular, this research, as focused on the specific objectives listed in the previous section, is expected to offer innovative results, able to influence both the national and international debate on control-enhancing mechanisms, and shareholder agreements in particular.
This way, in-depth analysis of the reasons why agreements among shareholders are rarely used in the US listed companies, while they are very frequently adopted in EU countries, is one of the most debated issues about control-enhancing mechanisms.
The explanation provided by scholars (see Ventoruzzo, Why Shareholder agreements are not used in US listed Corporations, in Penn State Law, Research paper 2013) and based on the presence of diffused ownership--which would not create the conditions for shareholders' coordination and, therefore, for shareholder agreements--is indeed partially convincing as recent studies report about the presence of block-holders in most of the US publicly-held corporations.
Other reasons pretending to explain this difference deal with corporate rules particularly protective towards minority shareholders, which would lower the benefits of control that block-holders may obtain by the means of shareholders agreements. This thesis, however, seems inconsistent with the fact that other enhancing control devices--especially dual-class shares--are frequently adopted.
In such a scenario, where shareholder agreements are not prohibited in principle but are somehow regulated, it would be interesting to investigate in depth the reasons of the currently limited use of shareholder agreements and to figure out their impact on the governance of diffused ownership companies. Yet, while in concentrated ownership systems shareholders agreements raise concerns about the possible extraction of private benefits of control and, consequently, may exacerbate the tension between majority and minority shareholders, in the case of diffused ownership, shareholder agreements, under certain circumstances, may attenuate the conflict between shareholders and managements and may be used as a means to establish coalitions of shareholders capable to monitor the management.
Moreover, it is debated in Europe whether the binding effects of shareholder agreements should be strengthened and expanded to the involved company and future shareholders. The solutions adopted in Europe are not homogenous (see, Portale, Patti parasociali con "efficacia corporativa" nelle società di capitali, in Riv. Soc., 2015, 1 ss.) and the proposal of strengthening the effects of shareholder agreements is widely debated in several countries.
The proposed research may offer a significant contribution to such a debate, by comparing the pros ensured by the current regulation of shareholder agreements (especially in terms of flexibility and effectiveness) compared to advantages coming from the proposals debated in the international literature.
Also, this research intends to consider another issue, which is substantially unexplored in the literature on this topic, that is, the possible tools for authorities and Courts to demonstrate that shareholders are acting as if they were linked by an agreement, which however was not published or communicated.
This point has been examined by the Italian Supreme Court in a few judgements (see, Cass. 13,1.2017, n. 770; Cass. 16.5.2016, n. 9963).
On this regard, it could be useful to consider whether the principles, praxis, and method, developed by EU enforcers in the area of concerted practices (that is, the possible inference of an agreement from the analysis of conducts and effects), as especially as to the case of tacit collusion, may be exploited in this area.