Editura Universitara Corporate covenants - clauses, covenants, agreements between companies association in regulating the new Civil Code

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38,53 Lei 28,13 Lei

ISBN: 978-606-591-288-5

DOI: 10.5682/978-606-591-288-5

Publisher year: 2012

Edition: II

Pages: 264

Publisher: Universitară

Author: Daniel-Mihail Sandru

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The second edition of this volume was necessary on the one hand because technically the first edition was exhausted and on the other hand, in fact, the work had to be partially modified - either by adding a relevant jurisprudence and as a result legislative changes. This volume analyzes the company pacts from the perspective of applying the provisions of the New Civil Code (NCC).

Company pacts seem to be a recent practice in our country, on the one hand because there was no reality in this regard, and on the other hand, because the subsidiaries of large companies have used the procedures of parent companies; so that they were not the subject of any laborious research. The company pacts, in other words the set of agreements and clauses that the associates establish between them, form the object of a dispute not so much in the field of importance, but especially of their field: in short we can consider as pacts all those agreements that form the object of the agreement. of the will of the associates / shareholders (which are not decisions of the general meeting) and which are limited to the general legal framework of the commercial companies, contracts and rules of private law.

The necessity of the pacts between the associates is given by the diversity of legal and economic-financial relations, by the necessity of finding concrete solutions, which to individualize the business relations between the associates of the commercial companies; the time of model societies has passed - professionals and their advisers (lawyers / legal advisers) have noticed that a company must have constitutive documents as adapted as possible to the realities and which can configure as coherently as possible the economic relationship of forces between the companies. A constitutive act that regulates the relations between the associates, no matter how thoroughly it was made and no matter how meticulously it would have regulated any possible situation, cannot predetermine the behavior of the shareholders.

The advantage of the pacts between the shareholders is given by their suppleness; in principle, no special formal conditions are required for their valid conclusion. But there is, in addition, a temporal argument: I can complete at any time the law and the articles of incorporation (also a law of the parties / shareholders), so that the last minute will of the shareholders to determine important changes during the operation of the company and without resorting to cumbersome means - such as convening a general meeting.

Another advantage is the coherence of the agreements between the shareholders and their relevance. By establishing adapted clauses, the associates can have an important role in the administration of justice, drastically reducing the ambiguities that persist in the law (which, by its nature, has a general, interpretable character), giving the judge a direct way of interpreting the will. and not a will interpreted only as an effect of the laws.

Romania is a state in which the legislative instability is recognized, the law of the commercial companies being modified, since its appearance, significantly, more than 10 times. The company pacts are an element of stability, obviously not legislative, but with the same effects, at least in the fields in which the associates can dispose by their will. Negotiation starts by knowing the limits! "Company Pacts" is a book about limits and inventiveness in companies.
  • Pacte societare - Clauze, pacte, intelegeri intre asociatii societatilor comerciale in reglementarea Noului Cod Civil

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Daniel-Mihail Sandru
University professor at the University of Bucharest, "Dimitrie Cantemir" Christian University. He founded and coordinates the Center for European Law Studies of the Institute for Legal Research „Acad. Andrei Radulescu ”of the Romanian Academy. Ad hoc judge at the European Court of Human Rights and arbitrator at the International Commercial Arbitration Court attached to the Romanian Chamber of Commerce and Industry. President of the Society of Legal Sciences and of the Romanian Association of European Law and Affairs. Editor-in-Chief of the Romanian Journal of European Law (Wolters Kluwer).

Content

FOREWORD TO THE SECOND EDITION / 5

Dr. Gheorghe Buta, FOREWORD / 9

TABLE OF CONTENTS / 13

INTRODUCTION / 19

Section 1. The legal framework in Romania / 20
Section 2. Persons who can conclude pacts / 23
Section 3. The notion and classification of pacts / 24
Section 4. Advantages of company pacts / 30
Section 5. Drafting company agreements / 31
Question: drafting an agreement or using a form / 31
Practical recommendations on drafting pacts / 31
The principle of good faith in drafting covenants / 33

CHAPTER I. PRINCIPLE OF CONTRACTUAL FREEDOM - BASIS OF ASSOCIATED AGREEMENTS / 35
Section 1. The principle of contractual freedom / 35
Section 2. Social interest and affectio societatis / 38
Section 3. Definition of the company and delimitation of other legal institutions / 44
Section 4. The role of the courts in the matter of company pacts / 51

CHAPTER II. REGIME OF AGREEMENTS BETWEEN ASSOCIATES / 52
Section 1. Validity of agreements between partners / 52
Section 2. Opposability of agreements between partners / 54
Section 3. Means of action for non-execution of pacts / 55
Preliminaries / 55
Abolition of agreements between partners / 55
Forced execution of pacts between associates / 56
Can the company have an active procedural capacity? / 57
Section 4. Interpretation of pacts / 58
Section 5. Publicity of the constitutive acts / 58

CHAPTER III. CLAUSES, AGREEMENTS, UNDERSTANDINGS APPLICABLE TO ALL TRADING COMPANIES / 62
Section 1. Preliminary considerations / 62
Section 2. Clauses regarding the expenses occasioned by the establishment of the company / 67
Section 3. Clauses regarding participation in profits and losses / 68
The importance of establishing clauses regarding benefits and losses / 68
Profit sharing and interdiction of leonine clauses / 69
The amount of dividends. Dividends are paid to the shareholders in proportion to the share in the paid-up share capital, unless otherwise provided by the articles of association / 69
The legal regime of the leonine clauses / 71
Section 4. Contribution clauses / 72
Section 5. Company and emblem clauses / 76
Section 6. Clauses relating to the assignment of goodwill / 86
Section 7. Choosing the form of the company / 87
Section 8. The effects of violating the legal requirements for incorporation / 91
Section 9. Nullity of the company / 93
Section 10. Branch clauses / 98
Section 11. Choice of object of activity and agreements between associates regarding the object of activity / 107
Section 12. Temporary suspension of activity / 109
Section 13. Headquarters Pacts / 113
Section 14. Agreements regarding the duration of the company / 114
Section 15. Non-compete agreements / 117

CHAPTER IV. ESTABLISHMENT OF THE COMPANY'S HEADQUARTERS AND FREEDOM OF ESTABLISHMENT IN THE EUROPEAN UNION / 121
Section 1. The importance of choosing the main headquarters of the Romanian companies / 121
Section 2. Systems regarding the establishment of companies in the European Union / 133
Section 3. Case Study on Freedom of Establishment: Case Centros, C-212/97/139
Section 4. Cartesio C-210/06 - new valences, problem (still unresolved) / 147

CHAPTER V. AGREEMENTS BETWEEN ASSOCIATES WITH PERSONS (PARTNERSHIP AND SIMPLE LIMITED LIABILITY COMPANY) / 149
Section 1. Covenants on the right to use the company's funds / 149
Section 2. Covenants on the right of supervision and control / 150
Section 3. Covenants regarding the meetings of the associates / 150

CHAPTER VI. AGREEMENTS BETWEEN ASSOCIATES WITH THE LIMITED LIABILITY COMPANY / 152
Section 1. Covenants relating to general meetings / 152
Section 2. Clauses relating to administrators / 154
Preliminary details / 154
Administration within the company / 154
Administration of the company in relation to third parties / 155
The right to represent the company / 157
The accumulation of the quality of administrator and the conflict of interests. 158
Administrator at several companies / 158
The cumulation of the quality of administrator with that of associate in a competing company / 159
Conflict of interest / 160
Clauses relating to the liability of the administrator / 160
Civil liability / 160
Preliminary details / 160
Administrator liability cases. 161
The right to take action against the administrator 163
Disclaimers / 164
Criminal liability / 164
Section 3. Covenants on the assignment of shares / 165
The principle of transmission of the social parts / 165
Assignment of shares / 166
The effects of the transfer of shares / 167
The sanction of not registering the assignment operation at the Trade Register / 167
Section 4. Are conventions on the exclusion of associates possible? / 167

CHAPTER VII. AGREEMENTS CONCLUDED BETWEEN SHAREHOLDERS (SA AND SCA) / 175
Section 1. Covenants on the right to vote / 175
Exercise of the right to vote / 175
restrictions legal angels of the right to vote / 176
Suspension of the right to vote / 177
Usufruct of shares / 177
Real movable guarantees / 179
Statutory clauses regarding the access to the general meeting of shareholders / 180
Clauses relating to secret ballot / 180
Section 2. Agreements regarding the representation of shareholders in the general meeting / 181
Persons who can be agents / 181
Obligation of the special power of attorney / 181
Legal restrictions on representation / 183
Clauses of the constitutive act regarding the representation of the associates / 184
Section 3. Capital Pacts / 185
Pacts regarding the release of the social contribution / 185
Pacts relating to shares / 186
Legal regime of shares / 186
Types of actions / 186
Content of actions / 187
Transfer of ownership of shares / 188
Usufruct Convention on Shares / 191
Acquisition of own shares by the company / 192
Hostile takeover of the company / 195
Agreements on the reduction of share capital / 196
General considerations / 196
Ways to reduce the share capital / 197
Pacts regarding the increase of the share capital / 199
Forms of capital increase / 199
The right of pre - emption / 202
Issue premium / 203
Section 4. Covenants relating to general meetings / 206
Shareholder quality / 206
Pacts regarding the meeting of the general and the special assembly / 207
Clauses regarding the validity of the deliberations / 208
Clauses regarding the validity of the deliberations of the ordinary assembly / 208
Validity of the deliberations of the extraordinary general assembly / 208
Clauses regarding the convening of general meetings / 209
Statutory clauses regarding the initiative to convene the general assembly / 209
Spontaneous general assembly / 209
Statutory clauses regarding the content of the convocation of the general assembly / 210
Section 5. Representation of the joint stock company vis-à-vis third parties / 212
Section 6. Are conventions on the exclusion of associates possible? / 212
Conventions regarding the exclusion of shareholders are not possible for joint stock companies / 212
The rights and obligations of the excluded associate / 214
Section 7. Withdrawal of the shareholder from the joint stock companies / 214
Section 8. Agreements between shareholders in the merger or division. 226

CHAPTER VIII. SETTLEMENT OF DISPUTES BETWEEN ASSOCIATES THROUGH ARBITRATION AND MEDIATION / 229
Section 1. Importance and place of arbitration in resolving disputes between associates / 229
Section 2. Autonomous utilities, state-owned companies and groups of companies / 231
Section 3. The commercial companies established by virtue of Law no. 31/1990 / 232
Section 4. Empowerment to sign an arbitration agreement / 237
Section 5. Settlement of disputes between associates through mediation / 238
CONCLUSIONS / 240
IN PLACE OF AFTERNOON. OPINIONS ABOUT THE FIRST EDITION / 243
BIBLIOGRAPHY / 246
ABSTRACT / 260

FOREWORD

The pacts (conventions) between the partners represent a manifestation of the contractual freedom in the matter of the commercial companies. The commercial companies constituted by the need to ensure the convergence of the energies and individual resources of the associates - insufficient for the achievement of a real economic progress - have not replaced, not even by the general meetings that function within them, as a way of expression, the role of the associates. In order to protect both the social interest and their particular, individual interests, the associates within the commercial companies usually conclude conventions regarding certain societal rights on which they can dispose.

The agreements between the associates are therefore of a contractual nature, with all the consequences deriving from such a qualification, just as a general way of setting up commercial companies. The foundation of any company with several associates is a collective legal act, respectively a contract, by which several persons decide to associate in order to carry out a commercial activity and agree, through a statute adapted to their needs and proposed objectives, on the way in which they understand to organize both the relations between them, as members of the respective entity, and the way of functioning of the commercial company.

This considering that participation in society involves the observance of a collective discipline, which is found in several well-known legal concepts: affectio societatis, the principle of preeminence of social interest, the principle of equal legal status between partners and the principle of majority. And the associates, through agreements, clauses and agreements, tend to create, during the development of the company contract, a network of contracts through which they enrich or restrict the legal rights and obligations related to the quality of associate. Under these conditions, the contract - as a bivalent expression of both freedom and coercion - could give rise to tensions and even a conflict between the common interest of the partners and the personal interests of them or of some of them. And when this conflict cannot be extinguished or settled by the associates, the justice is called that, based on the legal dispositions, but also on the basis of the statutory and contractual provisions, to settle it.

Associates who are part of a company whose very existence may be the subject of controversy or even controversy, inside or outside it, must understand as accurately as possible the objectives they can achieve within this entity, as well as the rights they have. they can exercise them as members of it. We consider that, to this necessary understanding, the present monograph, in its second edition, can make an important and useful contribution.

Law no. 31/1990 on commercial companies represents the general legal framework regarding the establishment, organization, functioning and disappearance of commercial companies in Romania, a series of laws and other normative acts with special character regulating different “special” types of commercial companies, all these provisions completing is, where appropriate, with the provisions of the Commercial Code or those of the Civil Code. But, from the vast subject of the regulations on commercial companies - which could be designated by the phrase, insufficiently comprehensive, perhaps, "company law" - the author of this monograph set out to examine and expose only the aspects related to the relations between the partners. (including from future partners) "from the moment of negotiating the incorporation of the company or the inclusion of new partners, by amending the articles of incorporation, during the existence of the company".

The author, through the way of exposing and analyzing the approached problem, follows and manages to demonstrate that the successive modifications made in the matter, “have given, more and more, a beneficial framework for the agreements / understandings between the associates”, the possibility of to negotiate, in the different stages of the constitution and functioning of the commercial company, being an application of the principle of contractual freedom, within the limits imposed by the legislator.

Analyzes on issues related to the regime of agreements between partners, clauses, pacts, general agreements and those between partners in different types of companies establishing the company's headquarters and freedom of establishment in the European Union and resolving disputes between partners through arbitration are thorough, and solutions and the author's assessments on these issues are correct and well-founded, with arguments resulting from both legal regulation and doctrinal research and jurisprudence.

In conclusion, through the precise and documented systematic analyzes on the proposed topic, through the given solutions as well as through the bibliographic and jurisprudential information which it offers, this monograph is a tool of information and useful work primarily for associates in companies and future partners in such companies, but also for those who, in scientific or practical research, are concerned with the legal issues of companies.

Dr. Gheorghe BUTA Associate Lawyer - Musat & Asociatii

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