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fall within this scope
4
. Certain scholars state that all signatories fall
within this scope, but that the provision should be construed in a limited
manner excluding signatories within a company (internal representation)
and signatories dealing with daily infrastructure related matters of the
company such as signing electricity, water and gas subscriptions
5
.
Pursuant to another opinion, the article should be read in compliance
with its purpose, its legislative justification should be disregarded and
accordingly the prohibition of delegation of the power to appoint or
dismiss signatories should be comprised solely of top management
6
.
Bearing inmind the possible problems whichmay arise in practice and
the need to adopt pragmatic solutions, this provision could be construed
accordingly. In fact, Art. 716a/4 of the Swiss Code of Obligations also
specifies the delegation of management and representative powers among
non-transferable powers of the board of directors. Nevertheless, the Swiss
Federal Court states in several decisions that this provision should extend
to the senior management only. In Turkish Law, the scholars and the
jurisprudence could also declare that Art. 375/1(d) is limited with the
senior management. Or, it could be accepted that this provision should
only apply regarding signatories with permanent authority to represent
and bind the company. Accordingly, it could be agreed that signatories,
commercial agents and representatives authorized to execute or realize
transactions on behalf of the company should be appointed by the board
of directors, but that these persons could temporarily authorize third
persons through proxies to realize specific actions. If this approach is
adopted, the signatories authorized by the board may issue power of
attorneys authorizing third persons for certain transactions.
Conclusion
The board of directors is authorized to represent and bind a joint stock
company. The board of directors shall appoint, register and announce
4
Prof. Dr.
Hasan
Pulaşlı
, Commentary on Corporate Law Under the Turkish Commercial
Code no. 6102 (6102 Sayılı Türk Ticaret Kanununa Göre Şirketler Hukuku Şerhi), Volume I,
Ankara 2001, p. 958, par. 251.
5
Tekinalp
, p. 130, par. 12-45.
6
Assoc. Prof.
Necla Akdağ Güney
, Board of Directors of Joint Stock Companies (Anonim
Şirket Yönetim Kurulu), Istanbul 2012, p. 91.