International Handbook on Shareholders´ Agreements

Regulation, Practice and Comparative Analysis

Sebastian Mock, Kristian Csach, Bohumil Havel, Sebastian Mock, Kristian Csach, Bohumil Havel

• Editore: De Gruyter
• Anno: 2018
• ISBN:
  9783110515244
• Edizione: 1
• Argomento: Droit
• Categoria: Droit des compagnies

Shareholders´ Agreements have a growing influence on the general understanding of corporate law since they bind not only the shareholders but also affect the constitution of the corporation and can have a severe impact on capital markets. Therefore, Shareholders´ Agreements are more and more subject to regulation in corporate, capital market and also insolvency law on the national, the European and the international level. This handbook provides a general examination of conceptual questions of Shareholders´ Agreements and provides an analysis of the regulation of Shareholders´ Agreements in European and international law and of the national law of more than 20 jurisdictions. Readers will get a general understanding of the theoretical and practical problems involved with Shareholders´ Agreements and detailed information on the regulation of Shareholders´ Agreements in several jurisdictions and the applicable law in the case of transnational corporations and cross-border transactions.

National Reports

Marie-Agnes Arlt

Austria

Dr. Marie-Agnes Arlt, LL.M. (NYU)

Table of Content

A.Nature of Corporate Law Regulation

B.Regulation of Shareholders’ Agreements

I.General Remarks

II.Scope of Shareholders’ Agreements

III.Disclosure/Non-disclosure/Confidentiality

IV.Conflict between articles of association and Shareholders’ Agreements

V.Parties to Shareholders’ Agreements

VI.Duration of Shareholders’ Agreements

VII.Need for shareholders’ agreements in partnerships?

VIII.Relevant statutory laws for stock corporations

IX.Selection of Case law

C.Forms of Shareholders’ Agreements

I.Voting rights

II.Instructions

III.Coordination to enforce shareholder claims

IV.Agreements on financing the company

V.Law of groups

VI.Shareholders’ Agreements on the (Limitation for the) Transfer of Shares

VII.Shareholders’ Agreements on the Constitution of the Corporation

VIII.Shareholders’ Agreements in pre-insolvency situation

D.Legal Effects of Shareholders’ Agreements

I.Legal Effects on the Corporation

II.Legal Effects on the Shareholders

III.Consequences of a Breach of the Shareholders’ Agreements

E.Enforcement of Shareholders’ Agreements

I.Contractual “enforcement provisions”

II.Court proceedings and injunctive relief

III.ADR Mechanisms

1.Mediation

2.Arbitration clauses

Austrian law distinguishes – like the major part of legal systems – between companies/partnerships (Personengesellschaften) and corporations (Kapitalgesell-schaften). The major forms are the private or civil partnership pursuant to the Austrian Civil Code (ABGB) (Gesellschaft bürgerlichen Rechts), the general business partnership (offene Gesellschaft) and the limited business partnership (Kommanditgesellschaft). Most important forms of corporations are the company with limited liability (Gesellschaft mit beschränkter Haftung) and the stock corporation (Aktiengesellschaft). As in Germany, shareholders’ agreements are of relevance for all forms, whereby they are often of importance for larger companies and, in particular, for stock corporations and companies with limited liability.

Like in Germany (see Mock, 280), usually the rules and principles of company law (civil companies) apply since shareholders’ agreements often constitue civil law companies (see below (B.I.)).235

A.Nature of Corporate Law Regulation

In general, the Austrian corporate law follows the principle of the freedom of contract (Vertragsfreiheit) whereby – depending on the specific form of the company – various restrictions apply. As a consequence thereof, the flexibility of the Austrian corporate law is dependent on the specific company. However, in general, the shareholders of any company are – with certain restrictions – free to supplement the articles of association by shareholders’ agreements.

Under Austrian law, shareholders are, hence, in general entitled to establish and – to a certain extent – individualize the corporate charter of “their” company.236 This right is, of course, not unlimited but follows – depending on the type of the corporation at hand – legal rules and guidelines. As a principle, the flexibility of shareholders of companies (Personengesellschaften) is higher than the one of corporations whereby there is, in addition, a great difference between companies with limited liability and stock corporations. In general, legal restrictions and limits are usually drawn in light of minority shareholder and creditor protection.

The corporate charter/articles of association is/are qualified as an agreement among the (existing) shareholders which is also binding for future shareholders.237Usually, the articles of association contain various organisational and cooperative provisions whereby the mandatory minimum content is determined by law.238

Depending on the legal form, the applicable laws either limit the shareholders’ opportunity to individualize the corporate charter or allow shareholders to amend the statutory regulation(s) on corporations.

For example, the right of shareholders of listed stock corporations to indivudualize the articles of association follows stricter rules in comparison to shareholders of private companies.

The flexibility associated with companies (Personengesellschaften) goes hand in hand with the fact that articles of association of this type of companies ususally do not have to be concluded in writing and in general do not have to be submitted to the companies register while articles of association of corporations must be concluded in writing and submitted to the commercial register.

The Austrian stock corporation act – in contrast to for example the German stock corporation act239– does not contain explicit provisions which only allow for regulations deviating from statutory law to the extent it is explicitly allowed for by law and for the supplementation to the extent that the legal provisions are not exclusive (Grundsatz der Satzungsstrenge). Austrian prevailing doctrine and case law nevertheless follows this concept to a certain extent.240 Hence, articles of association of stock corporations do not allow for an unlimited flexible individualization but only for a restricted possibility for a supplementation or deviation. This concept was, however, criticized by newer Austrian doctrine.241 In 2013, the Austrian Supreme Court also followed the critical academic statements when it decided on the validity of certain provisions in articles of associations, which amended applicable non-mandatory corporate laws.242 Pursuant to this judgment, the extent of the shareholders’ rights to amend applicable corporate law by articles of association is dependent on the question whether the company is a “private” limited stock corporation or a listed stock corporation.243 Shareholders of “closed” (i. e. non-listed) companies therefore have a broader range to create a corporate charter, which is individually customized to the needs of the company and its shareholder structure. This result is reasonable and serves the needs of non-listed stock corporations. In addition, also the Austrian legislator started to distinguish more and more between listed and non-listed stock corporations.

The situation is different for companies with limited liability (GmbH). Target groups of this company type are usually family businesses or other businesses whereby the shareholders intend to have a decisive influence on the management and organization of their company. Of course, this does not mean that the size of the business is limited. In fact, Austrian companies with limited liability are used for all sizes and often are large companies. Further, in terms of companies with limited liability, the “relationship” between the shareholder and the company is closer compared to the one of (minority) shareholders of listed companies. This principle is reflected in the possibility to tailor the corporate charter of a company with limited liability. Hence, laws applicable to this type of companies (i. e. the GmbHG) follow the principle of freedom of scope (Gestaltungsfreiheit)244, leading to the broad but not limited right to amend the applicable national laws. Amendments and supplements of the statutory law are permitted unless they violate mandatory (corporate) law.245 This differentiation goes hand in hand with the fact that it is prohibited to list shares in Austrian companies with limited liability on a stock market.

Once articles of association are agreed upon, the change thereof also follows strict rules which shall protect the existing (minority) shareholders and – depending on statutory law and/or contractual provisions – require the acceptance of all or a (qualified) majority of the shareholders.246 Hence, it is also possible to customize the articles of association in the course of the business, provided that the requisite majority agrees thereto.

B.Regulation of Shareholders’ Agreements

I.General Remarks

Shareholders’ agreements are not subject to specific rules or specific statutory laws; thus, the general rules and provisions on contract law and – as the case may be – corporate law apply. It is the common understanding of legal doctrine and case law that shareholders’ agreements are a permissible agreement among all shareholders or parts thereof.247 Shareholders’ agreements, thus, do not need a specific permission by laws or articles of association; it is at the discretion of the shareholders to decide whether they want to arrange and/or organize their coexistence and cooperation. In addition, there are no rules on the form of the agreement (Formfreiheit), e. g. no notarial deed is usually mandatorily required.248 Hence, shareholders’ agreements can be concluded in a more flexible and, thus, also faster manner. Further, shareholders’ agreements do not have to be disclosed to the public.249 Hence, they leave more room for provisions requiring confidentiality and sensitiveness.250

Shareholders’ agreements are continuing obligations (Dauerschuldverhältnis) and are usually qualified as non-disclosed companies organized under the Austrian Civil Code (civil law company; Gesellschaft bürgerlichen Rechts).251 Such civil law companies normally do not appear or participate in or act on the market (towards third parties) but remain undisclosed (Innengesellschaft).252

Since the general principles of civil law apply, it is at the discretion of the parties how they intend to customize the provisions of the shareholders’ agreements, e. g. it has to be decided who the parties of the agreement are and/or whether the company shall be informed about the existence253 and/or the content of the agreement and whether – which is rarely the case – the agreement shall be structured as third party beneficiary contract (echter Vertrag zugunsten Dritter) to the benefit of the company.254 Therefore, there is a broad range of possibilities allowing shareholders for a rather flexible arrangement.

II.Scope of Shareholders’ Agreements

The typical purposes of shareholders’ agreements, among other things, are the organization of the relationship between the (member‐)sharehol...