Article 3a of the SRD II introduces a new European regime on the right of listed companies to know the personal data of their shareholders. The new regime tackles the technical and legal obstacles that hinder shareholder identification on a cross-border basis. These obstacles are closely connected with the holding mechanisms of immobilised and dematerialised shares, and with the legal qualification of the intermediaries in the holding chain. The protection of data pertaining to natural persons also plays a role in shaping the new regime. Shareholder identification lends itself to different purposes, among which the SRD II considers the exercise of shareholder rights and shareholder engagement. However, the ability of these purposes to restrict the use of the identification mechanism is questionable. Whether shareholder identification will remain a complex matter in the future will partially depend on the development of new blockchain-based technologies in the trading and post-trading industry.
Matteo Gargantini and Verity Winship
This chapter takes a comparative approach to private ordering of shareholder litigation. To what extent can the players in shareholder litigation—companies, management, shareholders, and other investors—set the rules for litigation through private agreement? The chapter begins with the US example, in which dispute resolution provisions emerged in the constituent documents of US companies as a response to pressures from litigation. The contours of permissible provisions have not been exhaustively drawn, but dispute resolution bylaws have been tested in US state courts and were the subject of subnational legislation. The chapter then examines how private ordering of shareholder litigation—both intracorporate and securities suits—might function (or not) in the context of the EU and some of its constituent countries. This comparison highlights many of the similarities, as well as important differences, in how the United States and the EU approach private ordering in shareholder litigation.
Alessio Bartolacelli, Marcello Bianchi, Hanne S. Birkmose, Matteo Gargantini, Suren Gomtsian, Anne Lafarre, Corrado Malberti, Julia Anna Mayer, Mateja Milič, Konstantinos Sergakis, Ulrich Torggler and Christoph Van der Elst
Enforcement mechanisms purport to ensure the compliance with all transposed SRD II rules by enhancing the credibility of the long-term shareholder engagement and agenda that has been at the forefront of the Commission’s ambition. Safeguarding compliance in this area can also reinforce credibility in the markets, investor confidence and sound corporate governance, and investment management practices. Most importantly, the element of accountability of concerned persons who are supposed to fulfil the SRD II duties is of paramount importance now that the SRD II has been transposed into national laws. The aim of this chapter is to present the various types of enforcement mechanisms and to critically assess their adaptability and efficiency in relation to the areas of practice affected by the SRD II.