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182 | Environmental and social transparency under the Companies Act 2006Notes | 183334S Davies et al, Modern Law of Meetings (2005), p. 6.335AJ Boyle & J Birds, Boyle & Birds’ Company Law (2007), p. 443.336Ibid, p. 69.337Ibid.338BERR, ‘Companies Act 2006 table of commencement dates’.339The Shareholders’ Rights Regulations implemented the EU ‘Shareholders’ Rights Directive’(Council Directive (EC) 2007/36 on the exercise of certain rights of shareholders inlisted companies [2007] OJ L184/17).340BERR website, ‘What we do: Business Law: Companies Act 2006: FAQ Companies Act2006’, at . See, for further details of regulated markets under UKauthorities, FSA website, ‘FSA Register: Exchanges’, at .341s 393 Companies Act 2006.342Pinsent Masons, ‘Companies – The basics: Company Meetings’ (August 2008).343It is important to note, however, that due to the framework for company calendars establishedby the Companies Act 2006, specifically legal deadlines for submission of requests forthe circulation of resolutions (see sections 338 and 340 Companies Act 2006), opportunitiesto propose member resolutions relating directly to that year’s accounts and reports arerestricted.344Requests must be received from either (a) at least 5% of total voting rights on the proposedresolution, or (b) 100 members who have a right to vote who hold an average of £100of paid-up share capital each.345s 338 Companies Act 2006. If the resolution is received before the end of the financialyear, the company must the cover cost of circulation. If later, it has no obligation to do so(s 340 Companies Act 2006).346The same numbers are required as for proposing a resolution (see note 344), and the samearrangements for cost apply (see note 345).347Requests must be received by the company from members representing at least 5% of thetotal voting rights of all the members who have a right to vote at the meeting, or at least 100members who have a right to vote at the meeting and hold shares in the company on whichthere has been paid up an average sum, per member, of at least £100.348The same numbers are required as for proposing a resolution (see note 344), and the samearrangements for cost apply (see note 345).349See ss 630-640 Companies Act 2006.350See s 327 Companies Act 2006, as amended by Regulation 13, Companies (Shareholders’Rights) Regulations 2009.351Olswang, ‘Shareholder decision-making and rights: Changes to company law now inforce - the impact for fully listed companies’ (October 2007).352‘Ordinary’ resolutions require the support of a simple majority (over 50%) of thosepresent to be passed (s 282 Companies Act 2006), while ‘special’ resolutions require 75% (s283 Companies Act 2006).353s 284 Companies Act 2006. Companies may, for example, choose to restrict voting rightson specific issues to a specific class of shareholder.354The ‘purpose’ of proxy rights is to provide a means for shareholders to be represented atgeneral meeting when they cannot physically attend.355Some companies with particularly questionable social and environmental records havein the past used such discretion to try to deny access to the media. For example, VedantaResources has banned the media for the past 3 years running (see Mines and Communities,‘Vedanta’s Agarwal walks his talk - to little avail’ (4 August 2008)).Annex 7356Traditionally, proxies would be appointed to go to the meeting and act in pursuit of theshareholder’s immediate financial interests.357With regard to mining companies, often in practice such shareholders have been campaigngroups ranging from small, focused activist groups such as Colombia SolidarityCampaign, Partizans, and Philippine Indigenous Peoples Links to larger NGOs such asSurvival International, or Trade Union groups such as the International Federation ofChemical, Energy, Mine and General Workers’ Unions.358The company that is now known Rio Tinto plc, who with Rio Tinto Limited of Australiahead the dual listed structure of the Rio Tinto Group.359Description based on Roger Moody, ‘Rio Tinto Zinc Divestiture/Annual General MeetingCampaign’ (6 December 1991) .360These operations were controversial because Namibia at that point was regarded as beingillegally controlled by South Africa; RTZ was acting contrary to a number of UN resolutionsand widespread public and international condemnation of the South African regime’soccupation.361Roger Cowe, ‘Obituary: Sir Anthony Tuke’ The Guardian (12 March 2001).362Roger Moody, ‘The Gulliver File - Mines, people and land: a global battleground’ Minewatch(1992), quoted at .363Vedanta is both a mining company and based in the UK, but is not as large as the otherthree, as we will see below.
184 | Environmental and social transparency under the Companies Act 2006Notes | 185364For example, Anglo American AGMs are particularly well documented as until 2006they published full transcripts of the AGMs, and for 2008 an extremely detailed record wastaken by the London Mining Network.365The Group has a unified board, and shareholders of each holding company have equivalenteconomic and voting rights in the Group as a whole.366Rio Tinto Group website, ‘Who We Are: Business Overview’ (accessed Nov 2009) .367PricewaterhouseCoopers, ‘Mine*: As Good As It Gets?’ (2008). Note that as of late 2008the market capitalisation of all of the companies included here will almost certainly beconsiderably lower, as a result of the economic downturn.368Partizans, ‘Partizans West Papua Briefing’ (December 1995).369Partizans, ‘Corporate executives dodge rotten eggs, die-ins and awkward questions’Peace News (June 1996).370International Federation of Chemical, Energy, Mine and General Workers’ Unions, ‘RioTinto Tainted Giant: The Stakeholder Report’ (1997).371CFMEU, ‘The RIO TINTO Campaign: Protests at Annual General Meetings’ (13 May1998) .372Partizans, ‘Rio Tinto chair says code of labour practice unnecessary’ Corporate Watch(Summer Issue 2000).373Partizans, ‘Report of the Rio Tinto Annual General Meeting 2003’ (April 2003).374Partizans, ‘Rio 2005 - An account of Rio Tinto’s May 2005 London annual general meeting’(May 2005).375Save The Wild Up, ‘Mine opponents speak at Rio Tinto meeting in London’ (17 April2008) .376Kennecott Eagle Minerals Co.377London Mining Network, ‘Notes on the Rio Tinto plc AGM’ (17 April 2008).378Ibid.379All facts as of October 2008.380PricewaterhouseCoopers, ‘Mine*: As Good As It Gets?’.381Anglo American, ‘Anglo American AGM 2003’.382This has been defined as the recognition of ‘indigenous peoples’ inherent and prior rightsto their lands and resources and respects their legitimate authority to require that thirdparties enter into an equal and respectful relationship with them’ (Commission on HumanRights, Sub-Commission on the Promotion and Protection of Human Rights, WorkingGroup on Indigenous Populations, ‘Twenty-second session’ (19 -13 July 2004) p. 5). Fundamentallyit means that an extractive project should not proceed until companies are inreceipt of the consent of any and all indigenous peoples living in the area of proposed operations(i) without the people being subjected to duress, coercion or manipulation; (ii) meaningfullysought sufficiently in advance of any activities by a company; and (iii) with fulldisclosures of the development plans in accessible and understandable forms for affectedpeoples and communities. It is a right recognised by various intergovernmental organizations,international bodies, conventions, international human rights laws and nationallaws, but has of course been recognised and implemented to varying degrees in practice byextractive companies and international financial institutions.383Anglo American plc, ‘Transcript of proceedings at the Annual General Meeting held on21 April 2004’.384Anglo American plc, ‘Anglo American AGM 2005 Transcription’ (20 April 2005).385Anglo American plc, ‘Transcript of the Annual General Meeting of Anglo American plcheld in London on Tuesday, 25 April 2006’.386London Mining Network, ‘Notes on the Anglo American plc AGM held at the RoyalSociety, 6-9 Carlton House Terrace, London SW1, England, on Tuesday 15 April 2008’.387Also with secondary listings on the Johannesburg Stock Exchange (through BHP BillitonPlc) and American Depositary Receipts listings on the New York Stock Exchange.388The two holding companies have identical boards of directors and are run by a unifiedmanagement team. Shareholders in each company have equivalent economic and votingrights in the BHP Billiton Group as a whole.389BHP Billiton, ‘Company Overview: Our Profile’ (accessed Nov 2009) .390PricewaterhouseCoopers, ‘Mine*: As Good As It Gets?’.391North Shore Colombia Solidarity Committee Blog, ‘BHPBilliton plc AGM, London, 26October 2006’.392Richard Solly, ‘BHPBilliton plc AGM’ (25 October 2007).393Mines and Communities, ‘Vedanta Update’ (25 April 2007). Conversion based on Bankof England exchange rate data for April 2007 (accessed Nov 2009) .394Nostromo Research, ‘Not such a fair wind for Fowle - Review of Vedanta AGM’ (July2004).395Mines and Communities, ‘Vedanta update: besieged by accusations’ (4 August 2007).
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ClientEarthBen Bundock | Tim Malloc
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