34 NEWSLETTER 2021 disadvantage for transaction security. The danger and threat that a company’s resolution may be nullified even years after the resolution is adopted may cause great uneasiness in the company’s management, shareholders, creditors and potential investors in the capital market. Years later, the court’s determination of nullity removes many of the dealings established based on that resolution, often retroactively. Due to this drawback, the courts should rule for invalidity after detailed and multi-dimensional evaluations, and the legislature should clearly define the limits of invalidity and nullity. Article 706b of the Swiss Code of Obligations, which is the source of the provision, is frequently criticized for that reason. It is claimed that the said provision is unsuccessful in drawing the lines, and that it cannot eliminate the danger. However, no suggestions for a better provision were made either.” 13 A lawsuit regarding a null and void general assembly resolution shall be directed to the company and may be filed by anyone with a legitimate interest (shareholders, board of directors, creditors, etc.). The fact that the legislature did not limit the assertion of nullity to a certain period of time while emphasizing transaction security has been criticized by some scholars.14 The term for filing a lawsuit should be limited in line with the rule of good faith. Announcement and Security Pursuant to Article 448 of the TCC, the board of directors of the company must duly announce that a lawsuit for the determination of nullity was filed, as well as the date of the hearing, and put the announcement on the company website. Upon the request of the company, the court may rule for the plaintiffs to deposit security against potential damages. In that case, the quality and amount of the security shall be determined by the court. 13 The preamble of Article 447 of the TCC. 14 Kendigelen, Abuzer: Yeni Türk Ticaret Kanunu Değişiklikler, Yenilikler ve İlk Tespitler, İstanbul 2011, p. 299.
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