Instıtute of oblıgatory consolıdatıon of corporate control: corporate rıghts restrıctıon

Abstract

Today in many countries around the world the procedure of the compulsory purchase of the shares of minority shareholders (squeeze-out) by majority shareholders is an effective means of protection of rights of large investors and a widely used tactical technique that effectively regulates the process of corporate governance in business organizations, a toolkit to prevent corporate conflicts between members and business paralysis.

While emphasizing the relevance of the attempt to limit the ownership rights of minority shareholders in the interest of the majority, the court concluded that the application of a squeeze-out can be justified, and the initiation of this procedure does not indicate abuse of the economic position by the majority shareholder.

The interest of the majority shareholder in the free exercise of entrepreneurial activity may be placed above the interests of the minority shareholders, provided that the latter are protected against abuse of the economic forces by the majority shareholder, as well as provided that compensation is paid for the lost shares.

Supporters of the opposite point of view argue that the monopolization of large blocks of shares is a threat to the functioning of the Ukrainian economy, its investment climate and the activity of the stock market.

Georgia's administration of law is illustrative. The Constitutional Court of Georgia in its decision d/d May 18, 2007 on the constitutionality of article 53-3 of the Business Act found that the squeeze-out of minority shares is not a public need and a legitimate goal, as it provides for certain restrictions (minority ownership rights).

The institute of forced termination of ownership is not a new phenomenon for civil law. It is based on the idea of restricting the right to hold, use, and dispose of the property of an individual owner in the interest of the vast majority.

Rights equally guarantee the protection of the interests of society as a whole, as well as the interests of individual groups that may be affected in the process of exercising the powers of an authorized person. This objectively requires the correlation of the individual with the collective, and the private with the public. Constitutional and legal guarantees of an individual's private property right cannot override the corresponding guarantees granted to a group of persons acting in the general interest. The conflict between them shall be resolved by establishing the priority of the majority over the interests of the minority.

The corresponding termination may not substantially prejudice interests of the minority shareholder because of the organizational and economic disproportionality of the “energy consumption” associated with holding insignificant block of shares, participation in the affairs of the corporation and the amount of the corporate rights issuer's profits in favor of the minority shareholder.

The aforesaid demonstrates existing reasonable legal and economic prerequisites for interference with the peaceful ownership of property, which is not only consistent with the economic interests of the group of individuals, but also is proportional to its objectives and fair in view of the obligatory compensatory nature of the existing deprivation in favor of the holder of an insignificant block of shares of a joint stock company.