Likhetsprincipen, snäv eller vid? : En kritisk analys av tillämpnings- och gränsdragningsfrågorna avseende likhets-principens förhållande till generalklausulerna i ABL

Within Swedish company law, the principle of equality ensures the equal treatment of shares in limited companies. The principle is expressed in Chapter 4, Section 1 of the Swedish Companies Act (ABL), stipulating that all shares have equal rights in the company unless otherwise provided by law or the articles of association. However, what exactly the principle of equality entails, and consequently the scope of application of Chapter 4, Section 1 of the ABL, remains one of the most contested issues in Swedish company law and is heavily debated inlegal scholarship. The controversy essentially stems from a disagreement over whether the principle of equality theoretically regulates the legal relationship between only the shares in the company or both the shares and the shareholders. Since there is always a shareholder, the question arises as to what the distinctionin the statutory text signifies. A well-represented view in legal scholarship is that the statutory reference to only the shares means that the provision regulates only the legal relationship between the shares, but not the shareholders. However, other scholars argue that the principle of equality exists independently of Chapter4, Section 1 of the ABL and actually imposes requirements for equal treatment of both the shares and the shareholders. In this broader interpretation, the principle of equality suggests that Chapter 4, Section 1 of the ABL must be ascribed a broader scope than its wording suggests. At first glance, the linguistic distinction in the statutory text may seem insignificant, but the correct interpretation of the principle of equality has implications not only for the application of Chapter 4, Section 1 of the ABL, but also for a range of other important provisions in the ABL that are based on this principle. The principle of equality constitutes, regardless of its final interpretation, the most fundamental minority protection in Swedish company law. Another vital minority protection consists of the so-called general clauses in Chapter 7, ...