The Future of Shares - A Legal Perspective (Die Zukunft der Aktie aus rechtlicher Sicht)

Abstract

This is a manuscript in German language of my presentation held at the joint conference sponsored by the Verband der Hochschullehrer fuer Betriebswirtschaft (transl. Association of Business School Professors) and the Deutsches Aktieninstitut e.V. in October 2008. It analyzes which current trends impact on the legal framework for shares? I decipher three such trends, each of which refer to some form of dissolution. These include the dissolution of the share as 1. a materialized security, 2. a factor determining the size of shareholders' equity, and 3. a legal basis for members' rights.

With the dissolution of the share as materialized security, we experience difficulties in the transfer of shares as well as in defining and finding out who the shareholders are. Thus, I define as a first legal trend that banking law on custodians and depositories substitutes for securities law and supplements corporate law. With the dissolution of the share as factor for determining the size of shareholders' equity, characterized by a steady deviation from shareholders' nominal capital as a legal factor, the law substitutes for creditor protection formerly provided by the capital system through some kind of personal liability system. The dissolution of the share as a legal basis for members' rights is characterized by the deviation from the one share - one vote principle as well as the derogation of the individual right to contest a shareholders' meeting in favour of a threshold-based right which focuses on large and institutional investors. This third kind of dissolution is furthered by synthetic investment through derivatives. In return, legislators expand their legal regimes in order to include positions stemming from synthetic investment structures.

Keywords: Aktie, Derivate, Anfechtungsrecht, Demateralisierung, Verkehrsschutz, one share one vote, Anlageaktionaer, Unternehmeraktionaer, Synthetisierung, Grundkapital

JEL Classification: K22, E44, F30, G00, G10, G20, G25, G28, G32, G38, O16