Secondo la disposizione citata, <A director of a company must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole>.
Il che si determina avendo riguardo al lungo temrine, ai dipendneti etc. (ivi, lettere a-f).
Disposizione assai discussa nella sua portata: in particolare quale è il ruolo degli stakeholders diversi dai soci (soprattutto dei lavoratori)?
Ebbene, la Supreme Court inglese nella sentenza 5 ottobre 2022, BTI 2014 LLC (Appellant) v Sequana SA and others (Respondents), [2022] UKSC 25, dice che <<successo della company>> significa <<successo dei soci>>.
Almeno fino a che la società arriva vicino alla insolvenza, quando l’interesse da realizzare è anche quello dei creditori. Si v. < it is clear that, although the duty is owed to the company, the shareholders are the intended beneficiaries of that duty. To that extent, the common law approach of shareholder primacy is carried forward into the 2006 Act >, § 65
<The considerations listed in paragraphs (a) to (f) are capable of including the
treatment of certain creditors of the company. Creditors are liable to include
employees, suppliers, customers and others with whom the company has business
relationships; and their treatment may well affect the company’s reputation and its
creditworthiness, and have consequences for it in the long term. However, the primary
duty imposed by section 172(1) remains focused on promoting the success of the
company for the benefit of its members>, § 67.
E poi : < In addition, it seems to me that acceptance that the fiduciary duty of directors to the
company is re-oriented so as to encompass the interests of creditors, when the
company is insolvent or bordering on insolvency, must result in a similar re-orientation
of related duties. The proper purposes for which powers can be exercised, in
accordance with section 171, include advancing the interests of the company, which in
those circumstances must be understood as including the interests of its creditors, as
was held in In re HLC Environmental Projects Ltd [2013] EWHC 2876 (Ch); [2014] BCC
337, para 99. Similarly, the duty under section 174 to exercise reasonable care, skill
and diligence must be directed, in those circumstances, to the interests of the
company as understood in that context, as appears to have been accepted in a number of cases>. § 73
Si tratta di sentenza molto ampia, diffusa da più fomnti : ad es. Irene-marie Esser e Iain G MacNeil, Shareholder Primacy and Corporate Purpose, 21 dic. 2022.