In short
At the moment of a disagreement, the document, the general assembly and an interim measure are discussed. A criminal complaint is not the correct door in every file.
The document, the general assembly and an interim measure are discussed. A criminal complaint is not the correct door in every file.
The road map is in a separate writing.
The registered office of the company affects jurisdiction.
Related writings: a dispute among partners.
A first practical order
- Draw out the articles of association and the share register.
- Do not take an organ decision for a criminal denunciation. First the authority inside the company is looked at.
- If there is a claim that assets are being taken out, file the evidence of the measure separately.
If company decisions cannot be taken, the other partner does not share the accounts, or the work relation has turned into a personal conflict, the first step is not making a hurried transfer of the share, or intervening one-sidedly in the assets of the company. First the type of the company, the current structure of the partnership and which decisions are really locked should be determined.
A partnership disagreement is not the name of a single action. A money claim, obtaining information, the validity of a general-assembly decision, the responsibility of a manager, a transfer of the share and withdrawal from the company are bound to different legal paths. Separating the problem into sub-headings both protects the activity of the company and reduces the risk of a wrong application. This content is general information. Without the articles of association and the register records being seen, a path particular to the person cannot be determined.
Verify the type of the company and the status of the partnership
A limited company, a joint-stock company, an ordinary partnership and a sole proprietorship are not managed with the same rules. The right of a partner of a limited company to obtain information, or to withdraw, and the rights of a shareholder of a joint-stock company, are different. In an ordinary partnership, the legal personality and the structure of the register are separated from the capital companies.
First, from the current trade-registry records, the title of the company, its partners, the structure of the capital, its managers and the form of representation should be checked. A transfer of the share may have been made, but the register or the share register may not have been updated. Positions such as inheritance, attachment, usufruct or pledge may affect the voting and the economic rights as well.
Beside the provisions of the company contract, there may be a separate shareholders' agreement. While the articles of association show a different effect in the corporate order and against third persons, the shareholders' agreement may give rise to a debt among the parties. If the two texts contradict, which claim rests on which document should be separated.
Turn the dispute into a map of problems, instead of a single sentence
The expression "I cannot agree with my partner" is not enough to choose a solution. The dispute may arise from management, from money, from information, from ownership of the share, or from a personal working relation. For each heading, the event and the aim should be written separately.
In the map of problems, these categories may be used:
- General-assembly or management decisions not being able to be taken
- An unexplained outflow of money from the company account
- A distribution of profit not being made
- An obstacle to access to the books and to the financial information
- An unauthorised contract or act of representation
- A concern that the share is diluted in a capital increase
- A dispute of competition, of a customer or of a trade secret
- A request for a transfer of the share, for withdrawal or for expulsion
- Damage of the company arising from the fault of a manager
The result that is wanted should be stated for each problem as well. The payment of past damage, and the continuation of working together in the future, do not require the same strategy. If the aim is to keep the company standing, a temporary order of management comes forward. If the aim is to leave, the valuation and the conditions of the transfer come forward.
Determine the status quo and the urgent risks
The existence of the dispute does not mean that the activity of the company stopped at once. First it should be drawn out who has the authority to sign, how the bank accesses are arranged, the approaching tax and personnel payments, the contracts that continue and the critical obligations to customers.
The urgent risks may be these:
- A transfer of the property of the company to third persons
- An extraordinary drawing of money from the bank accounts
- An unauthorised termination of critical contracts
- The books or the digital records being destroyed
- A decision that is hard to reverse being taken in the general assembly
- An obstacle to payment that will lead the company to fall into default
If there is no risk, a written request for information and a corporate meeting may be more measured first. If a loss of assets is close, the options of a determination of evidence and of temporary legal protection should be assessed without delay. A request for a measure should rest on a particular transaction and a danger, instead of an abstract lack of trust.
Keep the documents in a form that conforms to law
Being a partner does not give an authority of unlimited access to all the systems of the company. A person whose duty of representation or of management has ended entering the system with the old password may give rise to a new responsibility. The right to obtain information should not be used by copying data without authority.
In the starting file, these documents may take a place:
- The trade-registry gazettes and the current summary of the register
- The articles of association or the company contract
- The share register and the documents of transfer of the share
- The shareholders' agreement and the side protocols
- The decisions of the general assembly, of the board of managers or of the board of directors
- The financial statements, the trial balance and the current accounts
- The records of bank authority and the movements of the account
- Critical contracts of customers, of suppliers and of credit
- The written notifications among the parties
The source from which the documents were taken, and the date, should be noted. Instead of selected screenshots, the whole of the conversation or of the series of decisions should be kept. Asking employees of the company for a document in secret may give rise to problems of personal data and of the duty of loyalty.
The rights to obtain information and to inspect
The partners have rights to obtain information about the activities of the company and to inspect particular records. The scope and the method change according to the type of the company. In a limited company, the partner may ask the managers for information about the affairs and the accounts of the company. In a joint-stock company, the shareholder has mechanisms of obtaining information and of inspection connected with the general assembly, and a possibility of a special audit.
The request should be written, particular and measured. Instead of "send all the data of the company", showing a particular period, account, transaction or contract makes the request more reviewable. The company may put forward a ground of a trade secret or of the interest of the company. This ground needs to be concrete.
In the case of a refusal, the path that will be followed changes according to the type of the company. Directing the question in the general assembly, having the refusal or the answer passed into the minute, and the options of applying to the court, may come onto the agenda. A request for information should not be made a ground for overlooking the approaching periods of an action.
Use the general assembly and the management organs correctly
Completely putting the corporate organs out of play in a partnership dispute is a mistake that is made often. A summons to a meeting in accordance with the procedure, the agenda and the minute make concrete the view of the parties and the decisions that could not be taken. They also form evidence for a later claim of a deadlock or of responsibility.
Before the meeting, the agenda should be prepared openly. Subjects such as a request for financial information, the election of a manager, a distribution of profit, a special inspection or a transfer of the share should not be left uncertain under the same heading. The right to vote, and the quorums of the meeting and of the decision, are checked according to the articles of association and the statute.
If the decision is opposed, having the dissent and the ground passed into the minute may matter. The annulment of a general-assembly decision is bound to a period. Asking for the documents of the meeting, or conducting a negotiation, may not extend this period by itself. The conditions of the claims of nullity and of annulment are not the same either.
A written negotiation and a protocol of the dispute
If the parties can meet directly, first a written agenda may be formed for the problem and for a temporary working. The aim is not to repeat the past argument. It is to control the risks while the activity of the company continues.
In a temporary protocol, these headings may be found:
- A double approval on payments above a particular amount
- Weekly financial reporting
- A joint decision for critical contracts
- Access based on role to the data of the company
- Contradictory instructions not being given to the employees
- An independent accounting or valuation work
- The period of the negotiation and the next option
This protocol does not pass automatically in the place of subjects that require the articles of association or a decision of an organ. The necessary transactions of the general assembly, of the management and of the register should be completed separately. Even so, it may build an interim order that protects the daily activity of the company.
The scope of mediation
In commercial actions, mediation before the action is obligatory as a rule for claims of a receivable and of compensation whose subject is the payment of an amount of money. Monetary claims such as a debt the partner gave to the company, a claim for a dividend, or compensation of the damage, may be assessed within this scope.
Requests of status and of a corporate decision, such as the annulment of a general-assembly decision, obtaining information, a special audit or the dissolution of the company, are not always subject to the same regime of mediation as a money claim. If there is more than one claim in the file, each of them should be classified.
Voluntary mediation may be used in subjects that are not a condition of the action as well. A transfer of the share, the valuation of the company, the model of management and mutual obligations of competition may be discussed in the same package of solution. The text of the agreement should be applicable. It should show who will make the steps of the transfer, of the general assembly and of the register, and on which date.
The options of a transfer of the share and of leaving
If it is understood that working together cannot be continued, a transfer of the share may come onto the agenda. Making a transfer hurriedly over the nominal value may lead to an economic loss. The assets of the company, its debts, the actions that continue, the portfolio of customers, the cash flow and the power of control attached to the share should be assessed together.
In the process of the transfer, these points are important:
- The limitations of approval and of transfer in the articles of association
- Provisions of a pre-emption, of a call or of a put option
- The date and the method of the valuation of the share
- A declaration and responsibility for hidden debts
- A security of payment and a plan of instalments
- Leaving the duty of management
- The position of the securities given by the company and of the personal suretyships
- The limit of the obligations of competition and of confidentiality
A transfer of the share may not end a personal suretyship by itself. The approval of the bank and of the creditor may be needed. The capacity of manager being deleted from the register, and the authority to sign being removed, are transactions separate from the transfer as well.
Withdrawal, expulsion and dissolution for just cause
The withdrawal or the expulsion of a partner of a limited company, and the position of a shareholder in a joint-stock company, are bound to different rules. The causes in the company contract, the just cause and the options of a court decision are examined separately. Being removed from the duty of management does not mean that the ownership of the share ended.
Dissolution of the company for just cause is a heavy solution. A lasting deadlock of management, the purpose of the company not being able to be realised, a continuous breach of a right, or the relation of trust being broken in a heavy way, may be assessed. Instead of dissolution, the court may choose the claimant partner being expelled by the real value of their share being paid, or another solution suitable to the position.
In a claim of dissolution, only the parties not speaking personally may not be enough. It should be shown with concrete records that the company could not take a decision, that its activity was disrupted, and that the rights of information and the economic rights were breached continuously. Why the more measured paths did not work should be explained as well.
The responsibility of the manager and the damage of the company
The capacity of partner and of manager may join in the same person. In the assessment of responsibility, the roles should be separated. If the manager caused damage by acting contrary to the duty of care and of loyalty towards the company, a claim of responsibility may come onto the agenda.
To whom the damage belongs is important. An irregular payment made from the company account may give rise first to damage of the company. A decrease in the value of the partner's share may have the nature of an indirect damage. Who will open the action, and to whom the result of the claim will be paid, are determined according to this.
The transaction being unsuccessful commercially does not show by itself that the manager is responsible. The information, the authority, the conflict of interest and the level of care on the date the decision was taken are examined. Transactions with a related party, a personal interest and an excess of authority may strengthen the claim.
Temporary legal protection and a determination of evidence
If there is a risk of the property of the company being taken out, of the books being destroyed, or of a transaction that will change the structure of the ownership of the share in a way that is hard to reverse, an interim measure or a determination of evidence may be assessed. The aim of the measure is not to give the result of the action in advance. It is to protect an effective trial.
The request should be particular. Stopping the whole activity of the company may create disproportionate damage on the employees, the customers and the other partners. A particular asset, a payment, a general-assembly decision or a group of records may be targeted. A close danger and approximate proof should be presented.
It is possible for the court to ask for security, or to limit the request. Because a claim of damage may arise because of a wrongful measure, this path should not be used only as pressure of negotiation.
Mistakes that are made often
The principal mistakes that enlarge a partnership dispute are these:
- Applying a general piece of advice without taking into account the type of the company
- Taking data without authority by using a personal password of the company
- Abandoning the procedures of the general assembly and of the management
- Missing, for the sake of negotiation, an action for annulment of a decision that is bound to a period
- Thinking the nominal value and the real value of the share are the same
- Assuming that a personal suretyship ended with the transfer of the share
- Asking for the damage of the company directly like a personal receivable
- Leaving the money claims and the corporate claims in a single item
- Forcing the employees of the company to choose a side
Spreading the details of the dispute to the customers or to the employees of the company with personal anger may give rise to a new damage as to commercial reputation and the protection of secrets. Communication should be kept limited to the necessary persons and to measured information.
The process of a company dispute in Ankara
The competent court and the mediation office are determined according to the registered office of the company, the record of competence in the contract and the nature of the claim. In companies whose registered office is in Ankara, the civil courts of commerce in Ankara and the relevant mediation office may come onto the agenda. If the registered office of the company is in another place, or if there is a valid arbitration clause, the path may change.
The transactions of the register run through the trade registry to which the registered office of the company is attached. Only the signing of a transfer of the share, or of a change of manager, among the parties may not be enough. According to the type of the company, transactions of the general assembly, of the notary and of registration are needed.
The general frame of company law is taken up on the page commercial law. The more detailed structure of the partnership is taken up in the content a dispute among the partners of a company.
Where the record of the partnership is read from
A partnership disagreement is read from the contract, the register and the decision of the organ. A period and an amount that are not written in the file are not added. Counsel in Ankara separates, from the registered office of the company, the fact that the office being in Çankaya does not choose the competent authority. Not every disagreement is counted by itself as a cause of dissolution.
An applicable order is like this:
- Verify the type of the company, the ratio of the partnership and the authority of representation.
- Separate the dispute into the headings of money, management, information and the share.
- Determine the risk of an urgent loss of assets or of evidence.
- Compare the articles of association with the shareholders' agreement.
- Use in writing the paths of obtaining information and of a meeting of the organ.
- Assess a temporary protocol that protects the activity of the company.
- Check the scope of mediation for the monetary claims.
- Compare the options of a transfer of the share, of withdrawal or of an action with the valuation.
- Follow separately the annulment of a decision that is bound to a period, and the other applications.
In a partnership disagreement, a good solution is not always the ending of the company. In some files, transparent reporting and an order of management may continue the relation. In others, a measured transfer of the share is healthier. In heavy and lasting breaches, the paths of an action and of dissolution come onto the agenda.
This content carries a purpose of general information. A concrete legal result should not be drawn without the company contract, the register, the decisions of the organ and the current legislation being examined together.
Conclusion
This writing is for general information. The document, the period and the procedure of the concrete event should be read separately. There is no promise of a result by heart.