Aandeelhoudersvorderingen met het oog op schadevergoeding, of waarom elke aandeelhouder vergoeding van reflexschade kan vorderen, Belgie class actions moet invoeren en de minderheidsvordering moet hervormen
This article, written for a volume celebrating the 10th anniversary of the 2001 New Codification of Belgian Company Law, contains a critical discussion of the Belgian legal rules concerning shareholders' suits in which shareholders of a corporation claim damages because their shares dropped in value as a result of negligence or another breach of duty by a third party. The article deals with direct suits because of reflective damage, with derivative actions and with securities class actions. It argues that traditional judge-made rules barring shareholders from bringing suit when the drop in share value they experience constitutes "reflective loss" because the drop reflects damage to the corporation that issued the shares, are incompatible with a correct application of art. 1382 Belgian Civil Code (the general rule of liability for negligence). Nevertheless, I acknowlegde that policy objections can be raised against the dogmatically correct rule that shareholders have an individual right of direct action as soon as their damage is certain because it is certain that the corporation itsel will not claim damages from the tortfeasor. To counter the double jeopardy problems caused by direct shareholder suits without robbing shareholders of legal remedies, I suggest reforming the rules on derivative actions. I propose to abolish the threshold of 1% of voting rights for bringing a derivative action, as well as the rule banning derivative actions against others than board members. The rules on the allocation of legal costs should be reformed to alleviate the massive free rider problem under current law.
Finally, I give arguments supporting recent proposals to introduce some form of class actions in Belgium. At the same time, I suggest that separate rules for securities class actions should be introduced. Because of the so-called "circularity problem" and rules largely shielding directors and especially officers from personal liability , it is likely (as the American experience shows) that neither the compensatory nor the deterrent effect of securities class actions would be very large. Tailor-made rules are therefore needed, but I even suggest that if the Belgian legislator introduces class actions, he may consider excluding securities class actions, or securities class actions with the corporation as a (co-)defendant.