35 COMMERCIAL LAW Stay of Execution of the Resolution Article 449 of the TCC regulates perhaps one of the most important issues in practice. According to the provision, in the event that a lawsuit for nullity is filed against a general assembly resolution, the court may rule for a stay of execution of the resolution after obtaining the views of the members of the board of directors. As the enforcement of null and void general assembly resolutions can give rise to irreparable damages, or damages that are difficult to compensate in the future, a stay of execution of the decision is frequently requested from the courts. However, while evaluating the said irreparability or difficulty, the court should also evaluate the consequences of the stay of execution. For instance, it would need to look at how the company would be managed and represented if a resolution on the appointment of the board of directors was not enforced. Consequences of the Resolution A null and void general assembly resolution has no legal effect. Yet, it is clear that a shareholder or creditor who is not party to the lawsuit cannot learn by themselves about the outcome of the lawsuit. Article 450 of the TCC, aiming to solve this issue, expressly provides that the final court decision ruling that the general assembly resolution is null and void shall be effective for all shareholders, and that the board of directors of the company shall register an official copy of this decision with the trade registry and post it on the company’s website. Liability for Filing a Lawsuit for the Determination of Nullity in Bad Faith As explained in detail above, the determination of the nullity of a general assembly resolution or the stay of execution of such resolution may give rise to irreparable consequences. This being the case, certain parties may file a lawsuit for illegitimate intents, such as deferring the execution of a decision until the finalization of the case, or preventing the company from carrying out certain transactions by simply filing a lawsuit.
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