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Some Issues Regarding Actions to Declare Nullity of a Resolution of the General Meeting of a Public Limited Company

Jakša Barbić ; Hrvatska akademija znanosti i umjetnosti, Zagreb, Hrvatska

Puni tekst: hrvatski pdf 463 Kb

str. 493-522

preuzimanja: 4.828



This paper discusses arbitrability of a lawsuit initiated by an action to declare a resolution of the general meeting of a public limited company null and void. The paper starts by presenting the relevant provisions of the Croatian Companies Act, as well as the present case law of the High Commercial Court that considers such nullity actions covered by exclusive jurisdiction of territorially competent commercial courts. The author suggests a change in the view in favour of the arbitrability of such disputes. After considering present normative obstacles to arbitrability, the author proposes an amendment to Art 3 para 1 of the Croatian Law on Arbitration to clarify that nullity actions at stake are indeed arbitrable.
In the second part of the paper, the author analyses the main features of nullity actions against resolutions of general company meetings. First, the parties in dispute are considered, in particular possible claimants according to the Croatian Companies Act. Under specific conditions provided in that Act, not only natural and legal persons are authorised to launch this action, but the right to sue is also given to the management (managing board) of the company. The respondent is always the public limited company whose general meeting passed the resolution in question. While considering the rules on parties' representation in court, special attention is paid to the possible conflict of interest between the parties' representatives when respondent's management or managing board (or someone of its members) is a claimant.
The prayer for relief is also discussed. It is pointed out that the wording of the prayer for relief is the same one when an action has been lodged on the ground of nullity or of voidance of the general meeting's resolution. In spite of this there is a difference between the legal nature of the raised claims. The first one is of declaratory nature, while the second has constituent nature. From the requirements provided in the Croatian Companies Act on which both actions are grounded, it may be concluded that the voidance of the resolution is treated as a rule and the cases of its nullity are strictly exceptional. Liberal interpretation of nullity grounds is not allowed. In spite of this difference, the change of arguments from voidance to nullity and vice versa does not require a change in the prayer for relief as the court has to find ex officio the legal consequences of the established facts.
Regarding the burden of proof, it is stated that the claimant has to prove its authorization to raise the claim as well as the facts in dispute on which its prayer for relief is grounded. The respondent has to prove that procedural errors in the process of passing the resolution in question have not caused substantial irregularity of the regulation.
A resolution of the general meeting may under certain conditions be entered into the company register in spite of the fact that a dispute on its validity is pending. The paper concludes by presenting these conditions, as well as the rationale of this option in the Croatian Companies Act. The consequences of entering such a resolution into the registers held by the courts are considered. In particular, the author highlights the need to change the prayer for relief after entering the decision into register, the proper way of doing it, as well as the consequences that will follow if the claimant fails to amend his claim.

Ključne riječi

action to declare nullity, resolution of the general meeting of the public limited company, arbitrability, the parties, party representation, prayer for relief

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Podaci na drugim jezicima: hrvatski

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