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the failure to return the property to the company and the harm to the property in the custody
of the State had an impact on the value and productivity of the shares and this, in turn,
prejudiced the shareholders, so that this prejudice should be understood as an arbitrary
interference in the “enjoyment” of the property. In other words, a violation of Article 21(1) of
the Convention. This is how the Inter-American Court protected the share capital of Mr.
Chaparro Álvarez considering it an acquired right that was also protected by Article 21(1) of
the Convention.96
82.
The case of Mr. Chaparro established an important precedent because it considered
that “shares” are acquired rights that become part of the property of the shareholder when
he acquires the title to them and, therefore, they will be subject to the protection of Article
21 of the Convention insofar as their loss can be measured.
83.
Meanwhile, the European Court has considered that the ownership of a share in a
company should be taken into account as a right to property protected under Article 1 of
Protocol No. 1 to the European Convention, understanding that “a company share is a complex
thing. It certifies that the holder possesses a share in the company together with the
corresponding rights. This is not only an indirect claim on company assets but other rights,
especially voting rights and the right to influence the company, may follow the share.”97
84.
In the instant case, with regard to the possible effects on the value of the shares owned
by the RCTV shareholders, the majority opinion reached the conclusion that, in this regard,
there had not been a violation of the right to property of RCTV for two reasons: (i) regarding
the shareholders’ rights that were not intervened by the State, and (ii) the impossibility of
establishing a violation owing to the “complex shareholding structure” of the RCTV
shareholders.
(i) Regarding the shareholders’ rights that were not intervened by the State
85.
First, the majority opinion, reiterating the cases of Ivcher Bronstein, Cantos, and
Chaparro Álvarez and Lapo Iñiguez, took into consideration the decision of the International
Court of Justice in the case of Barcelona Traction, Light and Power Company, Limited and
indicated that “domestic law grants shareholders certain direct rights, such as to receive the
agreed dividends, to attend and vote in general assemblies, and to receive part of the
company’s assets if it is liquidated.”98 Consequently, the majority of the Inter-American Court
considered that the case file did “not show that there was any limitation to the management
rights of the shareholders, such as those relating to their participation in the shareholders
general assemblies”99 (italics added).
86.
On this point, it is very important to clarify the scope of the Barcelona Traction case in
relation to shareholders’ rights. In the Barcelona Traction case, Belgium sued Spain owing to
the protection that it had decided to extend to Belgian legal persons who were shareholders
in a Canadian company, claiming the damage caused by acts that could be attributed to Spain
in relation to that company and that it claimed were unlawful. Canada had previous granted
its diplomatic protection to Barcelona Traction as a Canadian legal person, but then Canada
ceased to act on behalf of that company for reasons which have not been fully revealed. On
this point, the reasoning following by the International Court of Justice in this case is
interesting because it made a distinction between rights and interests. Thus, only legal
96
Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador, paras. 174 to 182 and 210 to 214.
97
ECHR, Case of Sovtransavtov Holding v. Ukraine, Application No. 48553/99, June 25, 2002, para. 92.
98
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 146.
99
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 354.
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