Download file 558 KB Texto completo en español More of: David Núñez C. Diego G. Pardow L.

Shareholders in a stock corporation can file a derivative suit on behalf of the company seeking redress for unlawful acts committed by directors and managers. Actions of this type were added to the Chilean legal system in a reform in the year 2000 aimed at strengthening the protection of non-controlling shareholders. However, no such suit has ever been filed in the nearly ten years since the enactment of the reform. This investigation proposes an explanation as to why Chilean shareholders have not made use of this right, based on a hypothetical derivative plaintiff in the famous Chispas Case.
Derivative plaintiffs litigate in substitution for the company, so they must share any eventual recovery with the remaining shareholders. However, plaintiffs are obligated by law, in most cases, to bear the expenses of a lawsuit alone in order to be reimbursed for court costs. This raises the stakes required for a derivative claim to be economically viable, to close to 10% of the equity interests. It therefore follows that only the controlling shareholders would be in condition to take a derivative action individually, while Pension Fund Managers (AFP) would be most capable of defraying the settlement costs involved in a class action. However, as long as controllers remain typically uninterested in filing a derivative claim, the incentive for AFPs to do so depends on the probability that their failure to take any such action will be sanctioned by the authority.
It is therefore concluded that the problem entails pursuing corporate misconduct through the sanctioning policy of the authority. This means abandoning the techniques of the regulatory models inspired by our laws. For this reason, the authors say, any effort to progress towards mechanisms that promote activism on the part of minority shareholders necessarily requires designing a special tool by which they can transfer the costs of derivative lawsuits to a third party.