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NEWSLETTER 2011
38
Innovations Concerning the Transfer of Shares in the New
Turkish Commercial Code
7
*
Prof. Dr. H. Ercüment Erdem
The dispositions of the New Turkish Commercial Code (“New
TCC”) concerning share transfer restrictions differ from the Turkish
Commercial Code (“TCC”). The Swiss Code of Obligations has a great
influence on the preparation stage of the relevant dispositions. In the pre-
legislative stage of the Code, the factors; having a similar Company Law
with Switzerland and the evidenced success of Swiss Legal System in this
field have been taken into consideration on this matter. The possibility
for the company to disapprove the registration of the transfer of share
to the share ledger without giving any reason has been abrogated with
the New TCC. Therefore, the discretionary use of these competences has
been prevented.
Principles Concerning the Transfer of Ownership of Bearer
Share Certificates and Registered Share Certificates
Pursuant toArticle 489 of theNewTCC, the basic principle concerning
the transfer of ownership of bearer share certificates is that the transfer of
the share is only valid with regards to the company and third persons by
the transfer of possession of the share. The relevant disposition is identical
with the TCC. On the other hand, in the relevant article of the TCC, the
term “delivery” was used instead of the term “transfer of possession”.
The New TCC preferred the latter term in order to describe the concept
more clearly.
Concerning the transfer of the registered share certificates, the basic
principle is that these shares may be transferred freely. Pursuant to Article
490 of the New TCC, except stated otherwise by legal provisions or the
articles of association, registered share certificates may be transferred
without any limitation. On the other hand, pursuant to Article 490/2 of
the New TCC, the transfer concerning legal transactions is realized by
the transfer of possession of the registered share certificate which has
*
Article of July 2011