90 / 521
It is disputed among scholars whether the judge should obtain the
consent of the claimant shareholder and other shareholders when rul-
ing for other convenient and acceptable solutions, while assessing the
acceptability of this solution. The solutions which the judge shall apply
may affect all shareholders. On the other hand, the judge’s duty is to
protect the company’s interests, ensure its continuity and arrive at a
solution rather than obtain a consensus.
Scholars state that possible solutions which a court may order may
include distribution of dividends, spin-off of a company and granting
shares to the claimant shareholder in the company to be newly formed
as a result of the spin-off and appointment of the claimant sharehold-
er(s) as manager at the company.
Conclusion
The TCC preserves the lawsuit for the termination of a limited lia-
bility company by just cause regulated under the fTCC. However, by
regulating the possibility for the court to rule for the squeeze out of the
claimant shareholder or for another solution which is acceptable and
suitable for the specificities of the present case is a material innovation.
Provisions governing the termination of a limited liability compa-
ny and that of a joint stock company are similar to one another.
Notwithstanding, unlike in a joint stock company, any shareholder may
file this lawsuit in a limited liability company, regardless of whether
the shareholder constitutes a minority or not.
The code does not specify what the just causes for the termination
of either a joint stock company or a limited liability company are. This
will be clarified through jurisprudence and scholars’ opinions. The
fTCC provisions, scholars’ opinions and previous Court of Appeals
rulings may be consulted to shed light when defining the scope of just
cause.
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NEWSLETTER 2014