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companies; however, it should be emphasized that it does not completely
disappear
3
.
In view of the above-mentioned issue, the execution of a SHA may
be decisive in practice. Under Turkish doctrine, it is stated that SHAs
give rise to the emergence of a simple partnership relationship between
the parties thereto
4
. Accordingly, when a SHA is concluded in order to
regulate the relations within a joint stock company, its execution gives
rise to a dual contractual relationship, which is formed by the joint stock
company on one side, and a simple partnership on the other side
5
.
With regard to simple partnerships, the element of
common purpose
is stated among the basic elements of simple partnerships. This
common
purpose
element requires that the participants in the simple partnership
gather around a common goal to be established through this relationship.
This element requires that every shareholder considers the common
purpose as his own purpose in the establishment of the partnership, and
that the pursuit of the common purpose is a means in the realization of
his personal purpose
6
.
Consequently, the parties are under a duty to participate in the activities
geared towards the realization of the common purpose, to cooperate with
other shareholders and to make efforts to achieve the purpose.
Effects of SHAs at Corporate Level
Since they regulate the relations between the shareholders and the
exercise of their shareholding rights, SHAs do not have corporative
nature. The obligations arising out of agreements not having a corporative
nature, such as SHAs, are not within the scope of the sole obligation
3
H. Ercüment Erdem
, “Les rapports entre la société et le contrat en droit turc”, le Contrat,
Travaux de l’Association Henri Capitant – Des Amis de la Culture Juridique Française, Tome
LV, 2005, p. 218.
4
Please see
Poroy/Tekinalp/Çamoğlu
, p. 91;
Okutan Nilsson
, p. 80;
Anlam Altay
, Anonim
Ortaklıklar Hukuku’nda Sermayeye Katılmalı Ortak Girişimler [Equity Joint Ventures],
İstanbul 2009, p. 244. It should also be noted that some authors in the doctrine do not
support this view. Please see
İsmail Esin/Tunç Lokmanhekim
, Uygulamada Birleşme ve
Devralmalar, İstanbul 2004, p. 67.
5
Poroy/Tekinalp/Çamoğlu
, p. 586-587.
6
Nami Barlas
, Adi Ortaklık Temeline Dayalı Sözleşme İlişkileri, 2. Bası, İstanbul 2008, p. 25.