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The liability herein only arises if the duty of care is not satisfied
properly. The duty of care criteria herein is the care that is pledged
on the board members of an independent company who are dedicated
to the company’s best interests and expected to act with the due care
and attention as a prudent executive under similar circumstances while
conducting such transaction. If it is established and proved that such care
is given, the board of members can avoid the liability.
It is determined that some articles within the provisions on legal
liability regarding the joint stock companies such as joint liability, statute
of limitations is applicable to the lawsuit to be filed by shareholders or
creditors through analogy.
In the case the dominant enterprise’s head office is located outside
Turkey; this lawsuit can be filed before the commercial court of the place
at which the subsidiary company’s head office is located.
Liability Arising out of Important Decisions
The second category, set forth in art. 202/2 of NCC, covers the
decisions which are taken by the general assembly of the subsidiary
company and in structural and important nature. The primary reason
for the unlawfulness herein is that these decisions are taken by use of
dominance power while there is no justifiable reason for the subsidiary
company which can be clearly understood.
3
2
Some sample decisions which are taken by use of dominance power
while there is no justifiable, reasonable ground and thus can lead to such
unlawfulness are also listed under art. 202/2 of NCC. Those are the
decisions such as merger, de-merger, change of type, termination, issuance
of securities and decisions regarding amendment of the important articles
of association.
In the cases of unlawfulness within the context of this paragraph,
the right of action against the dominant company is only granted to the
shareholders who votes against the decision and annotate their objections
to the minutes and who object to the decisions of the board of directors
2
OKUTAN NILSSON
, s. 225.