NEWSLETTER-2017

19 COMMERCIAL LAW Main Principles Concerning the Pre-emptive Right The preamble of Article 461/2 of the TCC 7 states that the Article specifies four principles strengthening the right to acquire new shares and, consequently, protecting the shareholders, and lists such prin- ciples, as follows: “(i) The pre-emptive right cannot be restricted nor removed by the articles of association. The approach of the new system is that this right shall not be removed and not even restricted, and this path shall be only followed on exception. In the event of the application of this exception, the general assembly shall resolve according to the current case. A generic clause to be included under the articles of association enabling the removal or the restriction of this right would contradict this principal approach. (ii) This right may be restricted or removed only upon the existence of just causes… (iii) Another strong protective provision is laid down under the third sentence of the second paragraph. Removal or restriction of the right to acquire new shares cannot be made for the purposes of some persons profiting (in an unjust manner), whether or not shareholders, and causing damages to some of the shareholders. The provision in question aims to avoid intragroup structural changes to the detriment of some shareholders and dilution of the- ir shareholding ratios. This provision also expressly emphasizes the principles of equal treatment, exercise of rights in a limited way, and limitation of majority power with just causes. (iv) Qualified quorum constitutes a minority right due to its preventive nature.” The just causes mentioned under the above principles and the qualified quorum are analysed under the following sections. The Restriction or Removal of the Pre-emptive Right Notwithstanding the main principle intended not to restrict or remove the pre-emptive right, the laws allows such in certain circum- 7 Preamble of Article 461 of the TCC.