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LE CONTRÔLE DE L'ENTREPRISE PAR SES FOURNISSEURS DE CRÉDIT DANS LES DROITS FRANÇAIS ET ANGLAIS

Abstract : Two kinds of stakeholders ensure the financing of a company : the shareholders and the lenders. But both in France and in England, only the former category receives a right to control the running of the company. The classical explanation lies in the risk suffered by the shareholder, but appears to be unconvincing. This brings us to examine the situation of lenders, through the notion of control. In the present work, control means a situation where one person ensures that another actually abides by a rule, either external or stated by the lender. The “best interest of the company” constitutes this external rule; it also reveals the nature of the company and its general purpose. Comparative investigation shows that the two legal systems have been radically opposed for a long time as to the content of this notion, as a result of fundamental disagreements as to the nature of a company. Though, the two systems have recently been attracted by each other and, nowadays, seem to have found a middle way. This middle way can be described as the interest of the company as a legal person. Substantially, this may sometimes protect the interest of lenders but, technically, it remains impossible for them to enforce the duties of company directors. It is also possible for lenders to create rules through contract, in the form of restrictive covenants. Disregarded by company and contract law, these clauses reduce the freedom of management that the company and its directors should have. Moreover, they reflect the high bargaining power of banks, who do not really feel threatened by the risk of shadow directorship. Finally, the using of restrictive covenants is not very satisfying, because it fails to produce an accurate and proportional representation of the importance of lenders.
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Submitted on : Sunday, March 24, 2019 - 10:08:35 AM
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Manuel Fernandez. LE CONTRÔLE DE L'ENTREPRISE PAR SES FOURNISSEURS DE CRÉDIT DANS LES DROITS FRANÇAIS ET ANGLAIS. Droit. Université Paris 2 Panthéon-Assas; Institut de droit comparé de Paris, 2007. Français. ⟨tel-02077850⟩

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