46 / 473
COMMERCIAL LAW
33
Nevertheless the code gives no explanation on how this ruling may be
enforced regarding other shareholders, whether it is necessary to give
notice of the lawsuit to other shareholders, and how separate lawsuits
filed by different shareholders who are in the same situation will be heard.
Art. 191/4 TCC regulates that this lawsuit shall not affect the validity
of the relevant merger, spin-off or conversion transaction. Nonetheless,
it is argued by scholars that this lawsuit should be filed together with the
annulment lawsuit. Pursuant to this opinion, Art. 191 TCC introduces an
innovative lawsuit. In order for this lawsuit to give rise to its innovative
effects, it should be filed together with an annulment lawsuit. Nonetheless,
the decision in favor of merging, spinning-off or conversion need not be
annulled for there to be a ruling for an offset payment under this lawsuit.
In fact, in the event the relevant decision is annulled, as the annulment
will retroactively apply, there will no longer be a violation of a right or
consideration which needs to be offset. Therefore, I do not agree with this
opinion.
I am of the opinion that the claimant shareholder is not obliged to cast
a negative vote against the merger, spin-off or conversion decision, nor
ensure that his opposition is recorded.
Annulment Lawsuit
In General
The annulment of joint stock companies’ general assembly resolutions
are regulated under Art. 445 et seq. TCC. These articles foresee three
grounds for annulment: the contravention of law, articles of association
and the good faith principle. Similar provisions may be found in Art. 622
for limited liability companies and Art. 53 of the Cooperatives Act for
cooperative companies.
Nonetheless, Art. 192 TCC specifically regulates the annulment
lawsuit when filed against restructuring transactions. Thereby, the
contravention of provisions applicable to the restructuring process is
subject to a separate and special annulment regime. Moreover, this
special provision provides a legal remedy to collective and commandite
companies in the event of transactions which contravene the law.