e-book2011

COMMERCIAL LAW

Innovations in the New Turkish Commercial Code Concerning

the Amendments of the Articles of Association - I

Prof. Dr. H. Ercüment Erdem

In joint stock companies, amendments of the articles of association

(“AoA”) are of significant importance, since they have a direct effect on

the rights of shareholders. Therefore, amendments of the AoAmay only be

realized through resolutions of General Assembly (“GA”). Additionally,

certain amendments of the AoA are realized through qualified quorums.

In this way, a more efficient protection is provided concerning the

rights of shareholders, and resolutions are adopted by a higher level of

participation. Since the amendments of the AoA are closely related to the

rights of shareholders, this concept was subject to extensive modifications

within the New Turkish Commercial Code (“New TCC”).

Essential Principle

Article452of theNewTCCindicates theessential principleconcerning

the articles of AoAwhich may be amended. Pursuant to the said article, the

GA may amend all of the articles of the AoA unless otherwise stipulated

in the AoA, under condition to comply with the conditions provided by

law. On the other hand, pursuant to the second sentence of the same article,

acquired rights and unalienable rights are reserved. This provision is in

the same direction with the essential principle set forth under Article 385

of the Turkish Commercial Code (“TCC”). However, the New TCC does

not provide any definition or list with regards to acquired rights, since the

Article 386 of the TCC which provides a definition and a non-exhaustive

list of acquired rights was subject to criticism, since the definition was not

satisfactory. Therefore, the new provision does not provide a definition,

or a list of acquired rights.

Pursuant to the justification of Article 452 of the New TCC,

unalienable rights are classified under the category of acquired rights,

however, display many characteristics different than the acquired rights.

The justification of the relevant article does not give the definition

Article of September 2011