Our corporate law department deals with all necessary formalities. These include the resolution to adopt articles of association, from convening the meeting for their adoption by the board of directors, attending shareholders meetings, when required, drafting corporate documents for boards of directors, and adopting and formalising deeds documenting the company’s resolutions.
According to Section 15 of the Provincial Court of Barcelona, which specialises in company matters, agreements are divided into (i) “contrary” agreements, (ii) non-existent agreements, and (iii) negative agreements. A “contrary” agreement is one that has been validly adopted and which contains an obligation not to do something. In contrast, a ‘non-existent’ agreement is one that has been proposed or which, once proposed, has not been adopted, meaning that the company’s wishes have not been implemented. Lastly, there are ‘negative’ or ‘non-agreements,’ which are put to the vote, but which do not receive the requisite majority.
Regarding the possibility of challenging these agreements, the Law provides that corporate agreements can be contested so that the contrary agreements are not challenged because there is an agreement, even when this is detrimental to the proponent. On the other hand, there is no legitimate interest in challenging a non-existent agreement because it has not been proposed. Furthermore, there is no sense in challenging an unadopted agreement, such as a negative agreement. However, in contrast to the above, the courts may constitute an agreement with the company. This happens in negative agreements when the failure to adopt the agreement (by majority opposition) is due decisively to the opposing vote of a partner who had to abstain because of a clear conflict of interest because a party who should not have voted has done so.
Concerning negative resolutions and whether they can be challenged, the Provincial Court of Pontevedra holds they are challengeable resolutions. The judge must decide whether the resolution was imposed by law or by the articles of association. In the latter case, its explicit rejection or failure to obtain the necessary majority opens the door to the challenge. In such cases, the judge may substitute lack or insufficiency of the company’s will for the will of the legislator or the constituent body of the company, embodied in the law or the articles of association and other rules of organisation and governance of the company. On the other hand, in cases where there are different alternatives, where any is admissible from a legal or statutory point of view, it would be meaningless even if the challenge is acceptable. In the absence of an agreement in a given sense, the judge cannot replace it or make an agreement within the company’s powers. It lacks this legitimacy to opt for one of those different viable alternatives.
Among the most common corporate resolutions are dismissals and appointments of the administrative and management bodies, the remuneration of directors and senior managers, the dividend distribution policy, resolutions to increase or reduce capital, the exercise of corporate action for liability against the administrative body, and so on.
We are also able to challenge corporate agreements on behalf of partners. Our professionals have experience in defending the interests of clients in the judicial process.
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