45 COMMERCIAL LAW extent that the Turkish Commercial Code (“TCC” or “Law”) allows for these regulations in the articles of association should be examined. One of the most important obstacles while drafting a non-mandatory provision in the articles of association, is Article 340 of the TCC, titled Mandatory Provisions. As per the mentioned article, “The articles of association may deviate from the provisions of this law regarding joint stock companies, only if it is expressly permitted by the law”. The recital of the article provides the following explanations: “The phrase “if it is expressly permitted by law” in the provision, also covers cases where the possibility of “deviating” from the wording of the article is not clearly understood but the “deviation” is justified with an interpretation that is in line with the ratio legis, not contrary to the methodological interpretation, based on satisfactory justifications, entailing fair results and considering the balance of interests. In cases where the law is silent about the particular case, the methodological rules regarding filling the legal gap would be applied.” As can be seen, the wording of the Article 340 of the TCC allows for optional regulations in the articles of association only in cases where it is expressly permitted by law. Also, the recital of the article supports this strict attitude. On the other hand, Article 340 and its recital have been heavily discussed by scholars, and an effort has been made to stretch the limitation through liberal interpretation. 2 Erdoğan Moroğlu, used the metaphor of a steel corset for the limitation of being expressly permitted in the law, and describes it as an obstacle to the advancement of company law.3 The author also mentions that this article would cause an increase in the execution of shareholders’ agreements among company partners.4 Abuzer Kendigelen also states that the Article 340 is too restrictive and hinders the 2 For further discussions on the interpretation of the referred article, please see. Ayoğlu, Tolga: Sermaye Şirketleri Özelinde Şirketler Hukuku Uyuşmazlıklarının Çözümünde Tahkim, On İki Levha Yayıncılık, 2018, p. 25 ff. 3 Moroğlu, Erdoğan: 6102 Sayılı Türk Ticaret Kanunu Değerlendirme ve Öneriler, On İki Levha Yayıncılık, 2016, p. 152. 4 Moroğlu, p. 152.
RkJQdWJsaXNoZXIy MjUzNjE=