Nobel Peter, Corporate Governance – Möglichkeiten und Schranken gesellschaftlicher Gestaltung, in: Der Schweizer Treuhänder, Heft 12/1995, p. 1057-1063.
Nobel Peter – Corporate Governance, Möglichkeiten und Schranken gesellschaftlicher Gestaltung
Summary
In this essay, Prof. Dr. Peter Nobel maintains that the principle of Corporate Governance cannot be defined with precision. Indeed, the term covers multifaceted and different legal concepts, which are not easily comprehendible.
According to the British Report of the Cadbury Committee on the Financial Aspects of Institutional Investments of Corporate Governance, Corporate Governance addresses board management efficiency. From a German legal viewpoint, Corporate Governance deals with shareholders, in particular with minority protection. Thus, the discussions concerning the principle of Corporate Governance have an international character and address not only the legal framework of the companies but also the structure of the economic system of the countries themselves. This discussion should not be interpreted with a unified solution but within the context of national company law.
Prof. Nobel maintains that we have taken different descriptions from the American theories (for example, the separation of ownership and control or the term”audit committees”) and brought them into the international discussion. He also points to the controversy about the institution of the German supervisory board. German newspapers are full of reform proposals concerning the professionalism of the supervisory board. Thereby, they call for more efficiency in the supervisory board.
The author maintains that the Treaty Establishing the European Economic Community harmonized European Company Law, especially the safeguarding provisions of shareholders and third parties. He highlights the fact that there was no approach regarding a concentration on one single European capital market as proposed in the Segré report; instead, a less coherent program of directives developed according to the wishes of the Germans.
The essay also provides insight into single alterations of the Swiss Company Law reform from the 4th of October 1991. Thereby, Corporate Governance plays a particular role for groups of companies.
With the new “Swiss Federal Act on Stock Exchanges and Securities Trading”, the debate on the principle of Corporate Governance has started, in particular with regard to the need for public regulation on the capital market. In particular, the organizational principles in private law will be subject to public law. For example, in the case of acquisitions, the competences of the executive board shift towards the general assembly (old Art. 29 Swiss Federal Act on Stock Exchanges and Securities Trading).
Prof. Nobel concludes that Swiss Corporate Law does not impose a single model of Corporate Governance; rather, individual models are employed to cover the legal needs of the individual companies and their social environment.