NEWSLETTER-2020-metin

25 COMMERCIAL LAW The first sentence of Article 434(1) of the TCC contains the gen- eral rule regarding the exercise of voting rights, as follows: “Share- holders use their voting rights in the general assembly in proportion to the total nominal value of their shares”. The quoted provision contains three main principles regarding right to vote : (i) it is used by the share- holders, (ii) in the general assembly, and (iii) based on the proportion of the total nominal value of their shares to the capital of the company. Firstly, within the scope of the principle that the right to vote shall be exercised by the shareholder, Article 432/2 should be mentioned. This provision brings an exception to the principle of exercising the right to vote by the shareholder, and regulates that if there is a usu- fruct right on the share, as a rule, the voting right will be exercised by the rightholder of the usufruct right. On the other hand, the fact that the shareholders may use their voting right through a representative, rather than using their voting right in person, is not an exception to the said principle. Since the representative attends the general assembly not in their own name (contrary to the case of the usufruct right) and the represents the will of the shareholder before the general assembly. The most important result of the second principle, which is the use of voting rights in the general assembly, is that unlike the board of directors’ resolutions, 1 the general assembly resolutions cannot be rendered through a circular resolution. It is mandatory to vote dur- ing the general assembly meeting. In this context, whether a physical meeting is held or electronic general assembly system is used (TCC Art. 1527), or whether the shareholder attends in person or through a representative, this does not contradict the principle of using the shares in the general assembly. Since, for instance, in the case of attending the general assembly through electronic system, although the share- holder is not physically present in the meeting room, the shareholder has the opportunity to follow the meeting live, and to participate in the meeting and to vote in the general assembly meeting in real time. 1 Article 390(4) of the TCC renders it possible for the decisions of the board of di- rectors to be passed by the method of circulating the decision proposal. Pursuant to the said provision, the members of the board of directors may take a decision with the signature of the absolute majority on the draft resolution, without physi- cally gathering.