NEWSLETTER-2019-metin

22 NEWSLETTER 2019 The lawsuit shall be filed against the company’s legal personality. The commercial court of first instance located in the place wherein the company headquarters is situated is the competent court. Authorities of the Court Before ruling for the termination of the company, the court must first listen to the board of directors, and allow the company to bring its situation into compliance with the law through the granting of a convenient period of time. Whereas the provision for granting a con- venient period of time is taken from the fTCC; the condition to listen to the board of directors is introduced by the TCC. This condition finds its area of application where the lawsuit for termination has been initi- ated due to the general assembly’s failure to convene, or the board of directors’ failure to duly hold a meeting, or to meet at all. It is beyond doubt that such condition cannot be fulfilled in cases where the board of directors does not exist. The court is entitled to take the necessary measures upon the re- quest of one of the parties. Neither the wording, nor the preamble of the Article, specifies such measures, and broad discretionary power is provided to the judge. Whether or not a judgment could be made pursuant to Article 531 of the TCC in a case that is filed and based on the provisions of Article 530 of the TCC has been a subject of discussion amongst legal scholars. In a case for termination based onArticle 531 of the TCC, the court is ex officio entitled to squeeze out the claimant shareholder, or to rule for suitable and acceptable alternative solutions, instead of ter- mination of the company. The view in favour of application of Article 531 of the TCC in a lawsuit that is filed within the scope of Article 530 is based on the ultima ratio character of termination, and argues that this solution is both compatible with the iura novit curia principle, and is supported by the special nature of the lack of mandatory bodies included within the scope of the notion of just cause 13 . According to 13 Ayoğlu, Tolga : “Anonim Ortaklıkların Haklı Nedenle Feshi” , Galatasaray Üni- versitesi Hukuk Fakültesi Dergisi, No. 2013/2 (Prof. Dr. Oğuz İmregün’e Saygı Sempozyumu), p. 230.