Private Law Theory

ABSTRACT
The creation of shares with different rights responds traditionally and historically to specific and cyclical financing needs of joint stock companies. In particular, special categories of shares seem to take on an important role both in raising new risk capital and as a governance tool: they can thus be effectively used to consolidate ownership structures and/or to create and settle delicate contractual balances, allowing a ‘personalization’ of shareholding with references to patrimonial and administrative rights. That said, it is also true that the plurality of share categories has not always received a favorable reception (in doctrine and, above all) in practice. This fluctuating reaction may have depended (on cyclical market moments, and) on problems connected both to the characteristics of some specific category and to the discipline in general. The aim of the paper is to focus on some possible developments and evolutions of the diverse categories of shares. More precisely, it is important to verify whether and in what terms share categories can become (or perhaps already are) an interesting and desirable tool for welcoming requests related to well-known environmental, social, and governance (ESG) issues. In this way, categories of shares characterized by a particular sensitivity to ESG profiles would recover their natural characteristic of instruments for access to the capital market, as well as being able to represent an important governance tool. The discussion regards three distinct hypotheses (ie, shares related to a sustainable production line, shares with a clause for the re-allocation of profits for social purposes and, finally, shares for employees), the configurability of which must be assessed within the limits expressly provided by the legislator and in those implicitly contained in the legal system. The companies that create the categories of shares discussed can also represent a valid alternative (for a potential investor) to so-called benefit companies.

Daccò, Alessandra, Fortunes and misfortunes of categories of shares (October 10, 2024).