Page 12 - Albanian law on entrepreuners and companies - text with with commentary

Some voices claimed that these incidences were only exceptions which affirmed the rule
of functioning global corporate governance systems. But by far the majority of experts,
governments and international organizations recognized that the complexity of the modern
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networks of companies and financial markets with their ‘epidemic conflicts of interest’
require regulatory measures to address common structural and functional problems. The
reluctance to simply get back to ‘business as usual’ derives from the fact that large national
and multi-national companies are increasingly becoming ‘social trustees’ for the existence of
millions of people beyond the employment factor: in times of ailing public pension systems,
shares in investment and pension funds which invest their capital in business companies have
become an option for the future welfare of entire populations. The debate brought about
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regulatory interventions, and the global establishment of Corporate Governance Codes,
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Principles and Guidelines, sometimes classified as ‘soft law’. As a result, company
constitutions’ have been ‘taken seriously’ and are increasingly ‘enforced’ by national, supra-
and international public law makers and organizations in order to reset their corresponding
legal frameworks for the continuous adaptation, implementation and control of companies’
corporate governance and corporate social responsibility. This is why there is now a
Corporate Governance Code in Albania.
The EU and its Member States have been actively involved in these developments.
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Based on important research and reform proposals, the EU published an ‘Action Plan on the
Modernization of Company Law and the Improvement of Corporate Governance in the
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European Union’ on 21 May 2003. The Action Plan announced an authentic shift of the
EU’s company law strategy. While EU company law-making from the late 1960s until the
middle of the 1990s focused on structural harmonization of Member States’ company and
accountancy laws, legal approximation which is now enshrined in both EU legislation and
soft law appears to be part of risk and crisis management in order to protect shareholders,
market participants, and other social interests and to strengthen the competitive capacity of
EU companies. The previous approach and in particular the First, Second, Fourth and Seventh
Directive aimed at providing equal conditions for companies in the Internal Market. In this
respect, the necessary cross-border mobility of Member State companies was, above all,

16 In this respect, we recommend G. Rossi, Il conflitto epidemico (Adelphi, 2003). Given the transversal institutional
presence of conflicts of interest in economy and politics, it would be more adequate to call it ‘endemic’.
17 Cf. the US American Sarbanes-Oxley Act of 2002 “to protect investors by improving the accuracy and reliability of
corporate disclosure made pursuant to the securities laws, and for other purposes”.
18 Most prominently the 2004 Revised OECD ‘Principles of Corporate Governance’
(http://www.oecd.org/document/49/0,3746,en) and the 2000 OECD ‘Guidelines for Multinational 2011 Enterprises.’
(http://www.oecd.org/document/28/0,3746,en) .Both are part of the same ‘corporate constitutionalization’ (cf. J. Dine,
Companies, International Trade and Human Rights (Cambridge University Press, 2005)). Also see the huge comparative
study on corporate governance codes and practices undertaken 2002 by Weil, Gotshal & Manges LLP on behalf of the
European Commission and in consultation with the European Association of Securities Dealers and the European
Corporate Governance Network.
19 Cf. the Report of the ‘High Level Group of Company Law Experts’ on ‘A Modern Regulatory Framework for
Company Law in Europe’. It can be found at: http:/europa.eu.int/comm/internal_market/en/company/company/
modern/index.htm and see the latest news on the initiative in
http://ec.europa.eu/internal_market/company/modern/index_en.htm.
20 COM (2003) 284 final. The document can be found on the aforementioned website.
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