Vikten av Vinst - En studie om syftets betydelse i bolagsstyrning

This study focuses on the purpose of commercial operations as a key factor in the governance of firms. The background is that the extensive discussions about the purpose of the firm, primarily within the economic and legal disciplines, have for a long time been polarized between two positions: shareholder primacy and stakeholder theory. These discussions are carried out in in the context of considering radical consequences for society in case the classic monistic purpose in terms of profit maximisation to the benefit of the shareholders is abandoned or compromised. In view of the width and complexity of the issue, the importance of having an adequate purpose and complying with the defined purpose seems to have been forgotten. This study is questioning the rationale in trying to define a generally applicable purpose. Instead the existing pluralism in terms of both objectives and stakeholders among commercial operations is recognized. On that basis, focus is on the importance of having an adequate purpose reflecting the specific operation and constellation of constituents of each firm. Pursuant to Swedish company law, making profit is the legally defined purpose. In principle the purpose of making profit must be adhered to in the decision-making process if no other purpose has been properly established in accordance with the rules applicable for the type of entity concerned. However, actual use of other purposes than profit maximisation in commercial operations within the state, municipal and private sectors is practised. Such practise goes on without always replacing the profit generating purpose. The legislator is also encouraging the use of alternative purposes. Recognizing that the commercial legislation to a large extent is based on the profit making purpose at the same time as use of other purposes is practised without having been properly established, the study is identifying legal risks as a result thereof. Moreover, ways for mitigating the risks and making the pertinent legislation more coherent are explored. The principal conclusion is that more stringent requirements on the establishment of adequate and transparent purpose as well as adherence to the established purpose ought to be introduced in Swedish company law