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association where necessary (Art. 435), providing consent or denying
transfer of registered shares are also among the powers and duties of
the board of directors. The articles of association or general assembly
resolutions may assign further nontransferable duties to the board of
directors.
Top Management and Signatories
Specific attention should be paid to the fact that the appointment
and discharge of top management, managers and signatories are
among the nontransferable duties of the board of directors. These
duties mainly comprise of the determination of the company strategy
and giving instructions for its application.
The board of directors is exclusively authorized to select the top
management. Appointments to inferior positions under the top
management may be delegated to the managers. Through emphasizing
the word “top management” the code reiterates that the board of
directors shall not be occupied with the day-to-day administration of
the company, which is not included in the duties of top management.
Nonetheless, the wording of Art. 375/1/d TCC which reads “the
appointment and discharge of managers, persons having the same
function and signatories” can be construed to comprise all signatories,
not just the top management when defining the scope of the nontrans-
ferable duty of the board. Accordingly, appointment of signatories is
not among the powers which the board of directors can delegate.
The scope of managers and signatories with regards to the above
provision is highly disputed among scholars. The selection and
replacement of all signatories of every rank, who have been discharged,
resigned or whose authorities are revoked for other reasons by the
board of directors, acting as a board through adopting resolutions, will
result in a large material workload, especially in large-scale companies
(for example banks having a great number of branches). The narrow or
broad interpretation of this wording by the courts will determine the
scope of powers which the board of directors is entitled to delegate to
third persons in practice. This provision has been adopted from Swiss
legislation, and Swiss practice is to interpret this wording in a narrow
manner to comprise the top management only. This provision could be
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