IL FONDO COMUNE AZIONISTA

Abstract

ABSTRACT The mutual fund as a shareholder The main concept behind my dissertation is that the equity participation hold in account of mutual funds raises special issues, that should require the development of equally special solutions, possibly different from the legal rules laid down by the ordinary law of limited corporations. In fact, the Italian civil code of 1942, that includes company law, is focused on a regard of limited corporations as basically industrial enterprises, while UCITS (Undertakings for Collective Investments in Transferable Securities) are shareholders inspired by a strictly financial approach, and specifically by the portfolio theory. That means that UCITS are interested in the valuation of their entire portfolio, not of the single equity participation. From the point of view of the individual portfolio company, this could imply that in a specific corporate resolution the manager of the UCITS could have an interest in conflict with the one of itself. The solution of the peculiar problems posed by the equity participation hold in account of a third party are furthermore complicated by the difficult conceptual classification of mutual funds, risen in common law systems, in a civil law system, such as the Italian. This circumstance has required the review of the several theories developed by the Italian legal doctrine, and the acceptance of one of them in order to justify the further solution of each legal issue. Moreover, the examination of the current Italian and European legislation around mutual funds suggests a basic twofold approach of their consideration as shareholders. In fact, beside UCITS, the recent Alternative Investment Fund Managers Directive (AIFMD) allows them even to hold a controlling stake in a portfolio company. On these premises, in the third chapter I analyze concrete issues, where the solution may diverge depending on whether the mutual fund operates following the portfolio theory or holding a controlling stake. One of the main issues regards the exercise of voting rights in account of mutual UCITS funds, where the manager is obliged on a legal and contractual basis to pursue the best interest of his clients. This should imply that in possible situations of conflict of interests with the portfolio company the manager may sacrifice the best interest of this last. In the conclusive chapter I consider the possible issues laid down by the consideration of the mutual fund as a controlling shareholder, and in particular the implications of the asset stripping prohibition, introduced by the AIFMD in 2011. This rule forbids AIFs to put in place disproportionate distributions of dividends in order to protect the integrity of the portfolio company, which implies that the duty to act in the best interests of the AIF in this context is overruled by considerations of Integrated CSR.