Abstract

The fiduciary ownership of shares sits at the intersection of fiduciary law and corporate law. It raises the issue of establishing whether and to what extent the principles of corporate law apply to the beneficial owner, which is the person really interested in the economic outcomes of the investment, notwithstanding that the position of shareholder is formally held by the fiduciary. The issue gathers prominence in light of the attempt of courts and scholars to define whether the establishing of a fiduciary ownership may be classified as a transfer of shares and, therefore, be subject to the limitations provided in the by-laws (such as pre-emption rights in favor of other shareholders or the prior approval of the transfer by the corporate bodies). After a brief analysis of the case law, the paper suggests a new reconstruction of the fiduciary ownership of shares which takes into account the legal and economic specificity of equity interests by shifting the attention from the external profile of the phenomenon (i.e., from the occurring of a transfer of the title on the shares) to the internal structure of the relationship between the beneficial owner and the fiduciary. From this perspective, the fiduciary ownership appears to take mainly the significance of a new distribution of corporate voting power. Under this approach, the applicability of the legal and contractual limitations to the transfer of shares should be assessed considering whether the power of influencing the corporate decision-making is relevant or not for the purposes those limitations pursue. The paper concludes by extending this approach to other corporate rules.