Izvorni znanstveni članak
Arbitral settlement of disputes between investors and listed companies because of non-compliance with the obligation of disclosing information on the capital market
Edita Čulinović Herc
; Pravni fakultet Sveučilišta u Rijeci, Rijeka, Hrvatska
Vlatka Butorac Malnar
; Pravni fakultet Sveučilišta u Rijeci, Rijeka, Hrvatska
Sažetak
Disputes in which shareholders and other investors sue listed joint stock companies for damages for failing to fulfill the obligation to disclose information on the capital market may take many different forms. There may be failure to disclose on the primary market (the prospectus) as well as on the secondary market (periodical and ad hoc disclosures) . This may consist of failure to disclose truthful or timely information. On the claimant's side there may be a large number of shareholders or other investors since these are companies with a dispersed corporate structure. On the respondent's side, apart from persons within the company (the company itself, the management and the members of the supervisory board) there may also be third persons, i.e. those from outside the company (interpreters, auditors, etc). The specific character of such disputes is that the court's decision on the merits of the case, i.e. whether the company is liable for the violation of the duty to disclose, ought to have a binding effect on all investors because they would be in a procedural position of unique joinders. In view of the unique joindership on the claimant's side, particular jurisdictions have developed collective suits for the protection of investors rights, such as class action. Some countries of the continental circle have introduced legislation, trying to solve these probems in the spirit of the continental procedural law tradition. The latest trend observed in US law is the idea that such disputes should be resolved through arbitration. While considering such matters in the context of Croatian civil procedural law, we have concluded that the matter of the jurisdiction of the court for settling such disputes will depend on the status of the plaintiff, and, therefore, we consider that this matter should de lege ferenda fall within the jurisdiction of commercial courts as specialized courts. If this conclusion could not be drawn from the interpretation of existing regulations (a broader interpretation of the concept of „membership rights“), then a legislative intervention would be required. As far as concerns the arbitrability ratione materiae in such disputes, the authors are of the opinion that they are arbitrable, although mandatory and non-mandatory rules overlap in this area. The decisive criterion is the disponibility of the disputed claim, which is usually understood as a possibility to settle a dispute, which in the author's opinion is possible in such disputes.Since there is no exclusive court jurisdiction in such disputes, there is no (objective) barrier to arbitrability. As regards the request that the arbitration agreement should be in written form, the arbitration clause contained in the joint stock company's charter could be the best solution and would be binding on all shareholders, the management and members of the supervisory board, and also on the legal successors of shareholders, regardless of the fact that agreements on the selling of shares are reached informally, not necessarily in written form. The problem of establishing the jurisdiction of the arbitration tribunal exists when the jurisdiction of the tribunal should be extended to persons outside the company. We may assume that the issuer may agree to establish arbitration clauses with such a person in the relevant main contracts, but the question which arises is whether on the basis of such arbitration clauses arbitration proceedings could be instituted for all the interested parties, and whether these already initiated proceedings can be consolidated, especially among those parties which do not have direct contractual relations. That is why it is advisable to have consent on multy-party arbitration in each separate main contract and build it into all the arbitration clauses. The issuer, who is the only one connected with all the other parties in such potential arbitration proceedings, and in control of the situation, must make sure that the clauses are worded in such a way as to cover the expected field of application of ratione paersonae i ratione materiae. In view of the reality of multy-party arbitration and consolidation of the proceedings, it would be better to select the jurisdiction of the arbitration institution rather than ad hoc arbitration, because many of the proceedural issues could be resolved by agreeing on the arbitration rules of the respective arbitration institutions (appointment of arbitrators, consolidation of proceedings). All the potential co-plaintiffs should be given the possibility to participate in proceedings, which then inevitably raises the question of keeping them informed. Apart from the company's official bulletin, another way of keeping shareholders (investors) informed about the on-going arbitration proceedings is by using the official register of prescribed information, established by the Law on the Capital Market.
Ključne riječi
arbitral settlement of disputes; investors; shareholders; listed companies; capital market; duty to disclose information; primary market; class action; prospectus; inside information
Hrčak ID:
39521
URI
Datum izdavanja:
12.7.2009.
Posjeta: 3.438 *