The Revue Suisse de Jurisprudence (SJZ-RSJ 1/2023) publishes a substantive article written by Marco Carenza and Philippe Jacquemoud about the implementation of shareholders' agreements.
Very common in practice, shareholder agreements are contracts containing a relatively systematic body of rights and obligations under which shareholders agree, inter alia, on the governance of a company and the control of its shareholder structure.
It is not uncommon for disputes to arise between shareholders, corporate bodies and the company. In this context, it is sometimes difficult to enforce the contractual terms of a shareholders' agreement. If contractual law takes effect late or imperfectly, for example in the absence of loss, this will benefit the party at fault to the detriment of the injured party. The injured party must then fight against the principle of reality. The facts unfold in front of the injured party without any real means of preventing them from occurring while the injured party – often months having passed – seeks redress.
This publication attempts to point out that there are means to implement the rights and obligations under shareholders' agreements by bringing together different legal instruments and procedural means. Questions relating to the company as a party to the shareholders’ agreement and the inclusion of specific provisions in the company's articles of association are also discussed.
The full article can be read here.
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