Il dialogo degli amministratori con gli azionisti dopo il Codice di Corporate Governance

The new Italian Corporate Governance Code, approved in January
2020 (“Code”), recommends that «the board of directors of a listed company
promotes dialogue with shareholders and other stakeholders which are relevant
for the company, in the most appropriate way». (Art. 1, Principle IV). This article
investigates whether, in the current regulatory framework and irrespective
of the (non-binding) provisions of the Code, the directors of a listed company
have a statutory duty to engage in a dialogue with their shareholders. The main
argument to support the existence of a qualified “duty of dialogue” is based on
the innovations introduced by Directive (EU) 2017/828 (so called “Shareholder
Rights Directive II”) with respect to the role of institutional investors and asset
managers. Such professional investors are required to interact with their investee
companies (also through dialogue) and, in consideration of the “public interest”
function that they are called to perform in the current European financial markets
regulation, boards may be under a duty to “respond” to their concerns and
address their queries, in the context of the general duty of care.
Moving from this background, the first part of the article explores the possible
contexts where the board’s “duty of dialogue” may be implemented, i.e. with
respect to management decisions, corporate governance and ESG matters. In
the second part, relying on the preliminary experience of the Italian companies
that have already implemented the “dialogue provision” in the Code, the article
addresses certain organizational issues related to the board’s dialogue, including
the adoption and content of ad hoc policies, the identification of directors
involved in the decisions to open (or refuse) the discussion, the modalities for
conducting the meetings, and for ensuring confidentiality of information shared
and equal treatment of the generality of shareholders.