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A NEW POLICY AGENDA FOR LATIN AMERICAN COMPANY LAW: Reshaping the Closely-Held Entity Landscape

This lecture explores the corporate governance reforms in Latin America over the last decade and the reasons behind the need for a new policy agenda. It focuses on the Model Act on Simplified Stock Corporations and the impact of the Colombian SAS. The lecture also examines the usefulness of company law overhaul and resistance to legislative change.

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A NEW POLICY AGENDA FOR LATIN AMERICAN COMPANY LAW: Reshaping the Closely-Held Entity Landscape

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  1. A NEW POLICY AGENDA FOR LATIN AMERICAN COMPANY LAW:Reshaping the Closely-Held Entity Landscape FRANCISCO REYES VILLAMIZAR December 7, 2011 Comparative Corporate Governance Distinguished Lecture Series Wake Forest University School of Law

  2. CONTENTS • Corporate Governance Reforms in Last Decade • Reasons for change in Policy Agenda • Model Act on Simplified Stock Corporations • The Colombian SAS (2008) • Empirical Evidence on SAS • General Features of SAS • Conclusions

  3. CONTENTS • Corporate Governance Reforms in Last Decade • Reasons for change in Policy Agenda • Model Act on Simplified Stock Corporations • The Colombian SAS (2008) • Empirical Evidence on SAS • General Features of SAS • Conclusions

  4. CORPORATE GOVERNANCE REFORMS Benefits of Corporate Governance according to surveys Source: Global Investor Opinion Survey: Key findings, Mckinsey and Company, July 200 [Online] www.mckinsey.com/globalinvestoropinionsurvey2002.pdf

  5. CONCENTRATED VERSUS DISPERSED OWNERSHIP Ownership Concentration in Latin America ECONOMATICA and 20 F ADR Filings quoted by Lefort and Walker, The Effect of Corporate Governance Practices on Company Market Valuation and Payout Policy in Chile, Pontificia Universidad Católica de Chile, at 4, March 2005 http://www.iadb.org/res/publications/pubfiles/pubR-515.pdf.at 53.

  6. EVOLUTION OF LISTED FIRMS IN LAT. AM.

  7. CONTENTS • Corporate Governance Reforms in Last Decade • Reasons for change in Policy Agenda • Model Act on Simplified Stock Corporations • The Colombian SAS (2008) • Empirical Evidence on SAS • General Features of SAS • Conclusions

  8. USEFULNESS OF COMPANY LAW OVERHAUL Obsolescence of Company Law in the region High “Transaction Costs” Importance of FDI Lack of a multi-purpose versatile business entity Excessive emphasis on the development of securities laws

  9. México – Commercial Code (1.889) Law of Business Associations - LSM (1934) Brazil – Law of Corporations (6.404 of 1976) Argentina – Law of Business Associations (19.550 – 1972) RESISTANCE TO LEGISLATIVE CHANGE

  10. USEFULNESS OF HYBRID FORMS • Limited Liability • Flexible internal structure • Reduction of formalities for incorporation • Transparent tax structure • Broad contractual freedom

  11. CONTENTS • Corporate Governance Reforms in Last Decade • Reasons for change in Policy Agenda • Model Act on Simplified Stock Corporations • The Colombian SAS (2008) • Empirical Evidence on SAS • General Features of SAS • Conclusions

  12. OAS Legal Committee (April 2011) Proposal of a separate statute introducing a new type of company Model Act contains substantive and procedural provisions Ex ante mandatory rules are generally reduced or replaced by ex poststandards MODEL ACT ON SIMPLIFIED STOCK CORPORATIONS

  13. SASINSPIRING MODELS Simplified Stock Corporation (Colombia) Limited Liability Partnership, LLC, Closely held corp. (USA) Société par Actions Simplifiée (France)

  14. CONTENTS • Corporate Governance Reforms in Last Decade • Reasons for change in Policy Agenda • Model Act on Simplified Stock Corporations • The Colombian SAS (2008) • Empirical Evidence on SAS • General Features of SAS • Conclusions

  15. COLOMBIAN SAS Law 1258 of 2008 Introduced a new hybrid businessform with all the features of a modern corporation law statute

  16. CONTENTS • Corporate Governance Reforms in Last Decade • Reasons for change in Policy Agenda • Model Act on Simplified Stock Corporations • The Colombian SAS (2008) • Empirical Evidence on SAS • General Features of SAS • Conclusions

  17. Data for 2008-2011

  18. Newspaper editorialFebruary 3rd, 2011 “The SAS is a legal Revolution…”.

  19. CONTENTS • Corporate Governance Reforms in Last Decade • Reasons for change in Policy Agenda • Model Act on Simplified Stock Corporations • The Colombian SAS (2008) • Empirical Evidence on SAS • General Features of SAS • Conclusions

  20. E-INCORPORATION(in one hour)

  21. E-INCORPORATION STEPS • Tax ID • Minutes • Payment • Digital signature issuance • Signing Document • Registration

  22. E-INCORPORATION – TAX ID

  23. E-INCORPORATION – NAME CHECK

  24. E-INCORPORATION – MODEL BYLAWS

  25. GENERAL FEATURES OF SAS • Single-member or Multi-member Entity • Simplification of Incorporation Process • Commercial Nature • Full-fledged Limited Liability • Broad Contractual Freedom • Flexible Capital Structure • Ex-Post Standards • Specialized Conflict Resolution Mechanisms • Unlimited Life Span and Unrestricted Purpose Clause • Freedom to Define Organic Structure • Flexible Rules on Capitalization • Modern Rules on Transferability of Shares • New Corporate Restructuring Mechanisms • Simplified Rules for Dissolution and Liquidation

  26. CONTENTS • Corporate Governance Reforms in Last Decade • Reasons for change in Policy Agenda • Model Act on Simplified Stock Corporations • The Colombian SAS (2008) • Empirical Evidence on SAS • General Features of SAS • Conclusions

  27. CONCLUSIONS • Implementation presupposes: • Breaking up path dependence • Support from pressure groups • “efficient minded” lawmakers • Overcome legal elites / traditions • Advantages: • Reduction of informality • Access to credit by SMEs • Relevance for groups of companies • Foster innovation, economic growth

  28. Many Thanksfrancisco.reyes@law.lsu.edu

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