Corporate Governance et liberté d’organisation

The question of limits to contractual freedom in corporate law is intensively discussed in connection with corporate governance. In that context, the tension between authority and accountability of the board of directors and the best way to address this issue in corporate law are two of the most controversial topics. Over these last years, the trend in almost all jurisdictions has been to increase the power of shareholders through enabling or (more frequently) mandatory provisions. In this article, we advocate that it is inefficient and even counterproductive to allocate additional powers to shareholders. Indeed, there are many legal and economic justifications for the central position of the board of directors in the legal system and there is no valid reason to change a successful model.