Emissionsgarantier - I gränslandet mellan aktiebolagsrätt och avtalsrätt

Sammanfattning: In connection to new share issues it is common that the issuer finds a guarantor, which is willing to secure the new issue. In exchange for a payment, either in cash or in shares, the guarantor commits to subscribe a certain amount of shares, provided that others are not subscribing all shares. Considered that the subscription is a regulated act of law with forms prescribed by law, and not subject to the freedom of contract, it has long been doubtful whether the agreement is legally binding. The essay intends to define how a guarantee of this kind is regulated in Swedish law, in light of the formal requirement for share subscription. The research is being done from a perspective of law and economics, trying to answer if the regulation effectively maintains the purpose behind it. The conflict of interest is mainly between the protection of the purpose behind the formal requirement for share subscription, and the companies and their need of funding. In March 2016 the Supreme Court of Sweden delivered a judgement concerning the legal effects of this certain kind of guarantee. The guarantee is legally binding and breaking it will, under certain conditions, cause contractual liability. The Supreme Court stated that the tort normally would be the same amount of money as for which the guarantor pledged to subscribe shares. The guarantor therefore, according to the judgement, gets significant incentive to instead keep its promise. The regulation takes into account the purpose behind the forms prescribed by law. At the same time, the companies’ need of funding is being effectively satisfied. The result of this thesis is therefore that the conflict of interest is being balanced successfully.