PP350
Analítico de Periódico
SANDRELLI, Giulio
Il dialogo degli amministratori con gli azionista dopo il codice di corporate governance / Giulio Sandrelli
Rivista del Diritto Commerciale e del Diritto Generale delle Obbligazioni, a.119 n.4 (2021), Parte seconda, p.695-755
DIREITO COMERCIAL / Itália, DIREITO DAS SOCIEDADES, SOCIEDADES COMERCIAIS, GOVERNO DAS SOCIEDADES, ADMINISTRADOR DE SOCIEDADES, ACCIONISTA
The Board's Dialogue with the Shareholders after the new Italian Corporate Governance Code - The new Italian Corporate Governance Code, approved in January 2020 (“Code”), recommends that «the board of directors of a listed company promotes dialogue with shareholders and other stakeholders which are relevant for the company, in the most appropriate way». (Art. 1, Principle IV). This article investigates whether, in the current regulatory framework and irrespective of the (non-binding) provisions of the Code, the directors of a listed company have a statutory duty to engage in a dialogue with their shareholders. The main argument to support the existence of a qualified “duty of dialogue” is based on the innovations introduced by Directive (EU) 2017/828 (so called “Shareholder Rights Directive II”) with respect to the role of institutional investors and asset managers. Such professional investors are required to interact with their investee companies (also through dialogue) and, in consideration of the “public interest” function that they are called to perform in the current European financial markets regulation, boards may be under a duty to “respond” to their concerns and address their queries, in the context of the general duty of care. - Moving from this background, the first part of the article explores the possible contexts where the board’s “duty of dialogue” may be implemented, i.e. with respect to management decisions, corporate governance and ESG matters. In the second part, relying on the preliminary experience of the Italian companies that have already implemented the “dialogue provision” in the Code, the article addresses certain organizational issues related to the board’s dialogue, including the adoption and content of ad hoc policies, the identification of directors involved in the decisions to open (or refuse) the discussion, the modalities for conducting the meetings, and for ensuring confidentiality of information shared and equal treatment of the generality of shareholders.