Agreement on exercise of rights by shareholders of LLC. Problems of execution and consequences of violation
“Arbitration Practice” magazine (No. 9, 2012).
Limited liability company (LLC) is an organizational legal form of legal entities with the following basic peculiarities: limited membership, procedure of forming and functioning of management bodies, peculiarities of circulation of the charter capital shares and some others. This gives motives to presume, first, more involvement of the shareholders with the process of managing the company, and second – a more close connection between them as compared to the unlimited number of shareholders of an open joint stock company (OJSC).These are the exact reasons why the institution of the agreement on exercise of the LLC shareholders’ rights has more practical sense than the shareholders’ agreement of the OJSC. However, current legislation contains only meager governance for such agreements. One has to look for many answers by systemically construing special legislation and analyzing the court practice.
Correlation of the Charter and the agreement of the LLC shareholders
It is objectively impossible to regulate many relationships, which are formed between the shareholders of an LLC, on the sole basis of the articles of association. This fact caused the practical arising of the agreements, by which the parties thereto aimed to fix the procedure of joint actions connected with funding of the company, managing its internal affairs, resolving stalemates and other similar issues.Pursuant to the provisions of the legislation, the Charter’s purpose is to fix rules, which are universal for the given company. Unlike the agreement between the shareholders, it cannot be an instrument of the process of concordance of the will and interests of the parties. Many authors reasonably note that the use of agreement instruments in corporate relations provides for legally ensuring the balance of the economic interests agreed by the shareholders. Such balance is unique to every concrete situation, and what is more, it is subject to constant change.
Until recently, there was no legal base for execution of the corporate agreements between shareholders of the economic companies. However, in our opinion, the execution of such agreements, even though there is no specific legal regulation (expressis verbis), easily fits within the principle of freedom of agreement fixed by clause 2 of Article 421 of the CCRF.
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