Corporate governance and the American model
In France, if we speak of “corporate governance” for corporate governance, this denotes the term that we automatically see the American model emerging. Some are moved by it, others rejoice.
If, conversely, we look at the origin of the term “ corporate governance ” in the United States, we see that in the 1970s this concept reflected dissatisfaction with the performance of companies, doubts about the leadership capacity of corporate leaders. American companies. The result is a desire to better ensure corporate governance as an economic cog. Where do we look at this time? What are the models that are the subject of this reflection? This is the German example and the French example, the French economy even more than the German economy being considered by Americans as very dynamic at that time. In the United States, a work by a professor at the University of Michigan ” Corporations in Perspective ” 1 , written by Professor Conard, contains chapters devoted to the apology of the French system and the German system. This apology is based on the idea that the difficulties of the American system are due to the laxity of the system of regulation of companies at the state level, since it is at this level that it is regulated. In this context, the German system and the French system seem to the authors an example to follow. In the 1960s when the European economies were experiencing a boom. The term corporate governance, as it was first used in the United States, refers more to the fact that private companies have a primary role in the governance of the nation than in corporate governance. The quality of this is a concern which results from the role of the company in the economy, from the importance of its decisions.
The concept of “ corporate governance ” in the 1960s, as at the same time the analysis of “corporate governance”, can be found in the movements of corporate citizens, in line with consumer movements and liberal movements in the North. South. He took as an example the French system, with its flexible planning, the success of which impressed English and American liberals, 2 and the German system. It fits more than other traditionalist visions in this ” stakeholder theory ” that a tribune of the Economist attacked in a systematic way by saying “finally, it is the market which most reflects the company with all its values. “.
The 1980s saw the development of managerial freedom, with the popularity of takeover bids and MLBOs. The concept of “ corporate governance ” reappeared in the 1990s. The work of the American Law Institute (1993) and in England the code of the Cadbury Committee (1992) marks the revival of corporate governance.
“ Corporate governance” differs from another concept that is talked about a lot at the moment, which is that of “ shareholder value ” 4 . of VALUE ACTIONARIALE
“ Corporate governance ” is not the absolute defense of the shareholder, nor a purely financial vision of the company corresponding to what one could call in the 1980s the tyranny of the markets. These years are those of “ leveraged buy out ”, the proliferation of which demonstrates the frenzy of the financial bubble which, on the contrary, goes against “ corporate governance ”. There is a legal reaction to excessive financialization. Debt holding companies can give rise in France to criminal charges. The indiscriminate use of American LBO techniques in France can be characterized as abuse of corporate assets 5 . In fact in the United States itself the excesses gave birth to a case law which applied the concept of “waste of corporate assets” in the event of LBOs which exhausted the financial capacities of the company. It was considered that, if one company took over another and assumed its resources and emptied one of the two companies, whatever it was, from that moment the transaction became faulty.
1 Alfred F Conard, Corporations in Perspective, Michigan, 1976
2 ” The planning economy is the most characteristic expression of the new capitalism. It expresses the determination to lead economic events rather than to be led by them ” , Andrew Shonfield, Le capitalisme moderne , NRF , 1967, p. 123
3 Rethinking the Company, ed. Thomas Clarket & Elaine Monhouse,, London 1994
4 Alfred Rappaport, Creating shareholder value, The Free Press, 1986; The Quest for Value: Benner Steward Harper Collins 1991
5 Cass. crim. July 10, 1995, JCP 1996.II. 22 572, n. Jean Paillusseau
6 G. Berlioz, Can we draw inspiration from the Anglo-Saxon example of audit committees , EFE Colloquium La Corporate Governance, May 10, 1995, p. 19
7 art. 90 of the decree of 23 March 1967
8 Cass. com. , July 4, 1995, JCP 1995.II. 22559, n. Guyon
9 September 28, 1992, Marcel Pillard / General industrial heating company Pillard, Rev. Soc. 1983 p. 773, n. J. Mestre
10 Couret, Corporate Governance, Specialized committees in the French context, Cahiers de l’Audit, n ° 3, CNCC 1998
11 TGI Paris, ord. ref. Jan 18, 1996, JCP 1996.II. 22,589
12 G. Berlioz, Les Affaires, the Repressive Judge and the Greek Tragedy , MTF sept. 1994, p. 35
13 Cass. ass. plen. . Dec 1 1995, four judgments, concl. Michel Jéol and note J. Ghestin, JCP 1996.II. 22,565
14 A good example is that of the implementation by the Paris Commercial Court (tTrib. Com. Paris 1re Ch. B special hearing, March 16, 1992, SA Demilac et al. V. SPG and Saint Louis, Bull. Joly, May 1992 p. 527) of the spirit of stock market law in the Nestlé Perrier case
15 G. Berlioz, Corporate governance and law reform , MTF, June 1995, p. 3