Dissenters’ Rights Evolution across European and US Company Regulations: Lawmakers’ Choices and Investors’ Expectations

The Article aims to analyze the evolution of dissenters' rights across European and US state regulations, looking for similarities and differences and, ultimately, for the possible grounds of such a right and the relevant interests. Based on a broad definition of dissent, the analysis will encompass dissenters’ rights and buyout orders, showing how, despite doctrinal differences, they present relevant similarities in considering both the cases in which they apply and the interests they aim to protect. The comparative analysis of the topic is important in light of the need for investors to know what exit rights to expect when buying an interest in a foreign company. In addition, the implications of the exercise of the right are highly relevant to the corporation, given the need to consider its financial consequences. Furthermore, national lawmakers can benefit from such an analysis, as providing this right can affect the chances of national companies attracting investments. Through a description of the approaches adopted across the main European and US states in the last decades, the analysis will focus on the cases in which shareholders are entitled to leave the company and, in particular, on trends towards widening or reducing the number of such cases. Not surprisingly, these trends show significant differences, which are of great interest from a transnational perspective. Particular attention will be paid to some solutions, adopted by lawmakers or held by case law, which are potentially dangerous for legal certainty, as well as to the differences arising from the use of rules or standards when defining the breadth of exit rights, and to the impact of different regimes on the exercise of the right. Identifying protected interests will contribute to a better definition of the scope of application of these minority protection means and, accordingly, provide guidance to investors, companies, and lawmakers. The complexity of interests potentially affected by dissenters’ rights should serve as a warning that particular attention be devoted to their regulation and interpretation to ease national and transnational investments and foster companies’ competitiveness.