NEWSLETTER-2020-metin

37 COMMERCIAL LAW Under the TCC, a privilege shall be only attached to a share. Rights, powers, or advantages that are attached to persons, certain traits, or a title shall not be deemed as a privilege under the TCC. Thus, a veto right that is specified for a person – although it might be valid – shall not be evaluated as a privilege, and would be defined as a “contractual right.” Even if it is written in the articles of association, no corporative right arises 4 . A veto right that is not among the real provisions of the articles of association and granted for persons is not of a corporative nature and there is only a contractual relationship between the shareholder and the company. On the other hand, if a right to veto is stipulated by raising the quorums in the general assembly or by requiring the affirmative votes of a share group through the articles of association, that veto right would have a corporative nature 5 . The difference of the rights that are granted in the shareholders ’ agreement, and which are not within the articles of association in the material sense, although they might be written in the formal sense, thus, are non-corporative rights; it is that they might be enforced under the law of obligations, but those rights do not entail any corporative enforceability 6 . In other words, in the event of a breach of a non-cor- porative right, due to the hardship regarding the specific performance, the right might not be enforced in kind. The corporative provisions in the articles of associations shall be applicable for the shareholders today and tomorrow, rather than being applicable exclusively for the ones who are the current shareholders or who signed the provision 7 . Thus, if a veto right is attached to a share group rather than a specific shareholder, and renders the right more effective and more enforceable, then that right becomes a part of corporate law. 4 Poroy/Tekinalp/Çamoğlu, Ortaklıklar Hukuku, Cilt-I, Yeniden Yazolmış 13. Bası, Vedat Kiktapçılık, 2014, p. 566. 5 Altay , p. 473. 6 Okutan Nilsson, Gül : Anonim Ortaklıklarda Paysahipleri Sözleşmeleri, İstanbul 2003, p. 112. 7 Okutan Nilsson , p. 113.