23 persons have rights to claim for unlawful acts that cause them harm resulting in losses; while it is only the interests of the shareholders that are affected. In other words, the shareholders would not have any right to make a direct claim and the only way to protect their interests would be through the whole of the company, so that the latter would assert their rights. 100 87. However, I consider that this precision is inappropriate in systems for the protection of human rights because, above all, international human rights instruments protect the rights of the person based on the mere fact of being a natural person. In addition, if the principle of distinguishing between the rights of companies or enterprises and the interests of natural persons is applied literally, this would leave a large number of natural persons who seek to associate in order to comply with a legitimate purpose in a democratic society without protection before the organs of the system, if we take into account that, under the interAmerican system, neither the Inter-American Commission nor the Inter-American Court have recognized ius standi to legal persons, pursuant to Article 1(2) of the Convention. 88. Thus, when the International Court of Justice referred to shareholders’ rights, it referred to company rights, considering that a deprivation of those rights is something that only an individual in his capacity as a shareholder can suffer. However, the Barcelona Traction case made no mention whatsoever of the fact that the shareholder, to have this status, has an ownership title to his shares. Thus, the share is the subject of the right to property. On the one hand, the share represents the documentary expression of the condition of shareholder – in other words, it is a corporate certificate – and, on the other hand, it has a value as property and, thus, it is an ownership title and, as such, a title to property. Thus, all shareholders’ rights are internationally protected, as human rights, by the right to property established in Article 21 of the American Convention. 89. From this perspective, the share is a title denoting participation in the company in two ways: (a) administrative (participation in assemblies, voting and contesting majority decisions), and (b) economic (perception of dividends). 90. The concept of the share as a property title protected by Article 21 was reinforced in the cases of Ivcher Bronstein and Chaparro Álvarez and Lapo Iñiguez, insofar as the victims in these case were deprived of their ownership of their shares, with the result that they could not exercise their rights as shareholders. Thus, the participation in the company’s shares, or the ownership of shares in a company, has a value and forms part of the property of the holder from the moment of its acquisition, and this results in the right to use and enjoyment of property. 91. In this case, the non-renewal of the concession had the result that the shares, as the title of ownership, lost almost all the nominal value that the RCTV shareholders owned. Although the assets of a company are not the direct property of its shareholders, if they are harmed, this affects the property of the said shareholders, to the extent that the value of their shares (property titles), as well as the distribution of dividends and the allocation of assets in the case of liquidation are affected. What is at issue here is not the rights exercised by the shareholders in their capacity as partners, but the destruction of the share, as a means of exercising those rights; a standard that, implicitly, the Inter-American Court has already pointed out in the cases involving shareholders. It is evident that, to be able to exercise shareholders’ rights, first it is necessary to have this status – in other words, own a share – which, in this case, should be protected by Article 21(1) of the Convention. International Court of Justice, Barcelona Traction, Light and Power Company, Limited, ICJ Reports (1970), para. 77. 100

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents