Certainty of Law and Reliance on Legal Rules: the Case of the Proxy Access Saga (Some Preliminary Considerations for a Comparative Study on Corporate Governance)

This essay explores the scope and breadth of Shareholders Voting Rights in a comparative fashion, and namely the rights to appoint the publicly-held company's directors. The first part of the work analyses the U.S. interplay of state corporation law and federal securities law with regard to voting by proxy and, more specifically, the proxy proposals rule under the Securities and Exchange Act of 1934 (as amended). In this context, particular emphasis is afforded to the proxy access "saga" that characterised the U.S. federal proxy rules and corporate private ordering in the last twenty years or so, thereby exemplifying the problem of reliance on the applicable corporate and securities laws rules in voting for the election of the US public companies board of directors. In the second part, the attention switches on the other side of the Atlantic Ocean, taking into consideration the European Shareholder Right Directive (as amended in 2017), and then trying to compare the European company law provisions concerning the shareholder proposal rule enacted regards publicly-traded companies boards to the rules enforced according to U.S. laws. The third part of the essay describes the Italian system of election of the board of directors in the quoted companies, showing some possible overlapping of the Italian rules with the U.S. rules and its constistency with the EU rules on shareholder proposal rule. The final part of the work is concerned with a conclusive comparative analysis of the voting rights in the light of the principles of reliance and the certainty of the law as a tool to reduce agency costs related to corporare governance in publicly held companies.