Visions and Revisions of the Shareholder

American Journal of Comparative Law, Vol. 48, p. 39, 2000

43 Pages Posted: 31 Jul 2000  

Jennifer G. Hill

University of Sydney - Faculty of Law; European Corporate Governance Institute (ECGI)

Abstract

Corporate theory, and the relative balance of power between directors and shareholders, is back on the agenda in relation to U.S. corporate law and law reform. While some scholars have argued for greater shareholder participation in a range of aspects of law, critics of this approach have suggested that such a reform agenda reflects an outmoded, if not illusory, shareholder-centered model of the corporation, and that the board's role is, in fact, to mediate between competing interests of different groups. This rise of comparativism in corporate governance has also presented a wider range of possibilities regarding the role of shareholders. And organizational comparativism, whereby investor-owned firms are viewed not in isolation, but as part of a broader matrix of associations, recognizes a smorgasbord of flexible governance structures, in which the role of participants may differ significantly.

The article provides a backdrop to current debate on shareholder participation rights, by identifying and tracing a number of visions of the role of shareholder, which can be discerned at various times in corporate law and across various jurisdictions. These different visions of the shareholder, which reflect competing theories of the corporation itself, have important consequences for two major issues in contemporary corporate governance - first the appropriate level of shareholder participation in governance, and secondly the status of shareholder interests in the board's decision-making process.

The article examines a range of different images of the shareholder, their theoretical underpinnings, and their doctrinal implications. Particular images of the shareholder examined in the article include:- the shareholder as owner/principal; as beneficiary; as bystander; as participant in a political entity; as investor; as corporate watchdog; and as managerial partner. The article discusses a number of contemporary legal developments against the backdrop of these evolving images of the shareholders, and argues that the adoption of any one-dimensional model of the past, such as "the shareholder as owner", is inadequate today and can result in a disjunction between law and reality.

Keywords: Comparative corporate governance, corporate theory, shareholders, directors, boards, stakeholders, shareholder participation, institutional investors, shareholder voting, regulation

JEL Classification: D70, G30, G34, K22, K33, M14

Suggested Citation

Hill, Jennifer G., Visions and Revisions of the Shareholder. American Journal of Comparative Law, Vol. 48, p. 39, 2000. Available at SSRN: https://ssrn.com/abstract=233137 or http://dx.doi.org/10.2139/ssrn.233137

Jennifer G. Hill (Contact Author)

University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
+61 2 9351 0280 (Phone)
+61 2 9351 0200 (Fax)

European Corporate Governance Institute (ECGI)

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

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