Nordisk Tidsskrift for Selskabsret

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Nordisk Tidsskrift for Selskabsret behandler aktuelle juridiske og økonomiske emner af betydning for selskabsretten; herunder også konkurrenceret, skatteret, regnskab og revision.

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Børsprospekter og god prospektskik

– salgsmateriale, ansvarsfraskrivelse eller investoroplysning?

Today, companies wishing to become listed and their advisers undertake extensive work during an IPO process, including in connection with the drafting of the prospectus. However, spectacular cases such as the Hafnia, Bank Trelleborg and OW Bunker cases show that prospectus liability cases can arise in the wake of IPOs if things subsequently go wrong with the companies. This article shows that while the current Danish regulation makes it possible to draw up good and adequate prospectuses, it hardly contains such checks and balances which ensure that investors in all cases receive the information they could wish for. With the aim to maintain a sustainable stock market in Denmark, the article presents several recommendations primarily based on ATP’s many years of experience as investor in almost all Danish IPOs – including the OW Bunker-case. First, a listing candidate should try to act as a listed company as early as possible and should prepare the same information about the company as a listed company would. Second, a listing candidate and its advisers should ensure a thorough due diligence process to provide the basis for the preparation of the prospectus. Third, a listing candidate and its advisers should prepare the prospectus with the objective of providing a suitable and relevant level of information to enable potential investors to make well-informed investment decisions. Fourth, a listing candidate and its advisers should make sure that a separate and proper verification process is in place, making it possible for the verification attorney to confirm whether the information in the prospectus is correct and whether any significant facts or circumstances concerning the company have been left out. Following these recommendations will hopefully make it possible for many more Danish companies to raise capital via IPOs and thus increase the number of companies that seek a listing on Nasdaq Copenhagen.

Fodnoter

1

. In the period 2013-2022 ATP participated in 12 out of a total of 15 ordinary listings (not counting transfers from First North, spin-offs and the listings a few financial institutions (two “sparekasser” and one real estate company)) on Nasdaq Copenhagen.

On 19 March 2019, the EU Regulation regarding the establishment of a framework for screening of foreign direct investments in the European Union was adopted (the “FDI Screening Regulation”). The FDI Screening Regulation did not in itself introduce any screening mechanisms in the Member States, nor did it impose an obligation on the Member States to establish any screening mechanism. Instead, the FDI Screening Regulation established a framework for coordinating screening mechanisms throughout the EU to protect sensitive European companies from foreign investments and influence.

The FDI Screening Regulation imposes an obligation on the Member States to share specific information about the foreign investments undergoing screening in a Member State, i.e., investments by investors residing in jurisdictions outside of the EU that may affect the security or public order within the EU. Furthermore, the framework establishes a right for the Commission to request information regarding foreign investments in a Member State not subject to screening. The FDI Screening Regulation therefore establishes a system, whereby the Member States and the Commission are allowed to present comments to ongoing investments in other Member States to which the receiving Member State is obligated to pay due consideration.

In order to establish the screening mechanism and procedures necessary to be able to screen and potentially block foreign investments within critical sectors in Denmark, and to be able to process any comments from Member States and/or the Commission under the FDI Screening Regulation, a general screening mechanism has been adopted in Denmark taking effect from 1 July 2021 with the Act on Screening a Foreign Investment (the “FDI Act”), which applies to all foreign investments closing after 1 September 2021. This article will describe the Danish regime and reflect on the practical administration of the FDI Act after its 1-year anniversary.

The FDI Act was introduced with the primary purpose to ensure that foreign investments in Denmark are screened on the grounds of national security and public order and to set the basis for a potential blocking or mitigating actions towards the foreign investment.

Fodnoter

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. Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments in the Union.

2

. Act no. 842 of 10 May 2021.

3

. The Danish Business Authority (the “DBA”) was appointed supervisory authority.

4

. Please refer to section 1.1 for a definition of national security and public order.

This paper examines how the proposed Regulation on foreign subsidies distorting the Single Market (the “FSR”) will have a significant impact on M&A transactions by imposing a notification and stand-still obligation with respect to the transactions covered by the FSR. The European Commission shall be the sole authority competent to ensure application of the FSR. It may inter alia order the dissolution of the transaction concerned and/or impose significant fines on the undertakings involved in said transaction. Its decisions may be subject to judicial review by the Union courts, however. The focus of this paper is the interests and ability of competitors to the undertakings involved in the M&A transaction to lodge complaints to the Commission and take subsequent legal action before the Union courts and/or damages actions before the national courts.

Thisarticle discusses the Norwegian judicial framework for the Board’s work with sustainability. Sustainability regulation is no longer a result of more or less targeted political initiatives, it largely presents as a coherent system of rules.

The starting point for the analysis is the general principles in the LLC (Limited Liability Companies) Act on the Board’s duty to manage the company. We therefore firstly give a description of the “company interest” and its central elements. The article seeks among other things to demonstrate the trade-off between profit seeking and the Board’s right and duty to integrate sustainability in the management of the company.

Furthermore, the article discusses how central milestones, such as the EU taxonomy, accounting and reporting regulation, the Transparency Act, and the EU Commission’s proposal for a Corporate Sustainability Due Diligence Directive (CSDDD), impact the Board’s sustainability work.

Several of these rules are characterised by strict requirements applicable to a relatively small number of companies. These companies, however, will, in order to meet these requirements, often have to place demands on their contractual parties. The legal framework will thus have important ramifications for a larger number of companies and the Board’s work in these companies. A lack of knowledge about sustainability may have substantial legal and economic consequences.

Fodnoter

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. Alle elektroniske kilder er sist besøkt 1.11.2022. Takk til (alfabetisk rekkefølge) Karoline Angell, Kiran Aziz, Caroline D. Ditlev-Simonsen, Hans-Marin Heikvam, Roy K. Kristensen og Marit Sjøvaag for verdifulle innspill og bistand underveis.

In Danish public and private limited companies, the members of the management are liable for damages if they intentionally or negligently cause damage to the company, the shareholders or any third party. According to section 363(1) of the Danish act on Public and Private Limited Companies the damages for the management “… may be reduced if deemed reasonable, having regard to the degree of fault, the amount of the damage inflicted and the circumstances in general.” However, there also exist general rules regarding reduction of damages in the Danish act on the liability to pay compensation, including section 19(3) and 23, which both imply that the liability of employees is often reduced. As the executive board is usually hired by the board of directors, the main question in this article is whether the executive board of public and private limited companies can invoke these employee friendly rules or whether the executive board cannot go beyond the reduction rules of the act on Public and Private Limited Companies.

The article concludes that the general legal relation between the act on Public and Private Limited Companies and the act on the liability to pay compensation is not regulated in the acts themselves, the preparatory works, case law or principles of the applicable law. However, based on the interpretation of the specific reduction rules in the acts, the article concludes, that the members of the executive board can invoke the rules of the act on the liability to pay compensation when the members are liable for damages while performing employee tasks. The same, though more cautiously, is assumed regarding the executive board members performing of managerial tasks.

Directfinancial supervision includes powers to investigate the supervised firm or entity fully; to conduct on-site inspections; to address sanctions such as fines, periodic penalty payments, and other administrative sanctions; and to have full mandate to enforce applicable legal requirements. In the EU, such powers were long only at Member States’ disposal to confer on competent national authorities in the field of financial market supervision. Since the financial crisis of 2007-2008, a new system of financial supervision has been established at the Union level. It partly includes direct financial supervision, and the powers have increased over the years since the crisis. The development has been part of the regulatory tightening of the EU financial markets since the financial crisis, driven mainly by the concern for financial stability.

Moving supervisory competence from Member State level to Union level brings forth several issues, such as constitutional aspects, coordination challenges, and efficiency of the conductance of supervision. Most importantly, perhaps, is the issue of reasons for direct EU financial supervision. Can financial stability justify a shift of competence from national to EU level in this field, and if so, to what extent? This article discusses the rationale of financial stability and its relation to direct financial supervision at the EU level.

Fodnoter

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. Associate Professor in Private Law, Uppsala University (Docent i civilrätt, Uppsala universitet).

 

  • Professor, dr.jur., dr. h.c. Paul Krüger Andersen (ansvarshavende), University of Aarhus
  • Professor, dr.jur. Jesper Lau Hansen, University of Copenhagen, Denmark
  • Adj. professor, ekon.lic. Rolf Skog, Justitiedepartementet, Sweden
  • Professor, dr.juris Tore Bråthen, Handelshøyskolen, Norway Associate
  • Professor Andri Fannar Bergþórsson, dr. juris, Reykjavik University Menntavegur, Iceland
  • Professor Matti Sillanpää, dr. juris, Turku School of Economics, Finland LLM Erik Lidman, Handelshögskolan i Göteborg, Sweden.
  • Luk
  • Udvid