Even in companies located abroad, shareholders’ agreements can be stipulated between shareholders, who can reside in Italy or in the third country where the company is located.
Shareholders’ agreements have long been considered as conventions whereby shareholders establish relationships that cannot be opposed to the company, different or complementary to those provided for by the statute or deed of incorporation. This also applied to companies based abroad.
Types and limitations of shareholders’ agreements included in the arbitration clauses
Currently, the Italian Civil Code dedicates articles 2341 bis and 2341 ter to shareholders’ agreements. Such agreements are seen by the legislator from the point of view of the purpose for which they are stipulated, e.g. stabilizing the company’s ownership assets or governance, or regulating specific aspects such as advertising obligations, in order to disclose assets, duration limits and right of withdrawal, so as to avoid crystallization of any dominant positions in the corporate structure, not related to the ownership of shareholdings. Shareholders’ agreements differ from the company agreement. They are a pact that binds members and shareholders outside the company and regulates how they exercise their rights, powers and faculties within the company. The content of such agreements can therefore concern:
- voting methods in corporate bodies;
- corporate governance rights;
- shares transfer methods.
The most common shareholdersì agreements. Voting syndicate, blocking syndicate, management or control syndicate.
- Voting syndicate: it is an agreement whereby shareholders agree in advance on which way they will vote within corporate meetings.
- Consultation pact: an agreement whereby shareholders undertake to discuss the matters to be voted on at meetings, before voting, without necessarily making commitments regarding the ways to exercise the right to vote.
- The blocking syndicate is the agreement whereby shareholders undertake not to sell their shares to third parties, thus preventing the entry of outsiders as shareholders and providing stability to the company’s ownership structure.
- The management or control syndicate is the agreement aimed at exercising a dominating influence. In short, it attributes the company’s management decisions to the will of the contracting parties.
Non-fulfillment and violation of shareholders’ agreements. Jurisdiction for violation of the agreements of companies based abroad
Having established the constraint of shareholders’ agreements for members and shareholders, their violations are left to examine. A recent case concerned the violation of the management syndicate within a company based abroad, upon which the United Sections of the Court of Cassation were called to decide with sentence n. 26984 of November 26, 2020. The ruling concerned the existence of the jurisdiction of the Italian judge, with reference to the judicial request relating to the non-fulfillment of a management syndicate within a company based abroad.
The case of stipulation of shareholders’ agreements not respected by the sole director of the company established in a EU country
The case concerns two partners who set up a company based in a foreign country within the EU. The managing partner of the company then entered two shareholders’ agreements with a third subject:
- the agreement on the procedures for the purchase of company shares by the same party of the agreement;
- the agreement on management obligations that the second partner had to observe as sole director of the company.
The signatory of the shareholders’ agreement on management obligations sued the sole director for non-fulfilment of the management of the company. Based on art. 5, par. 3 of EU Regulation 44/01, the managing shareholder cited in court raised the lack of attribution of the Italian judge, considering the judge to be that of the foreign State where the company is based. A defect confirmed both in first and second degree. In his appeal to the Court of Cassation, the subscriber who deemed the shareholders’ agreement violated inferred that the appeal judge was wrong in declaring the lack of attribution of the Italian judge.
The decision to confer jurisdiction on the Italian judge. Shareholders’ agreements are only binding for partners and shareholders
And in fact, the United Sections of the High Court considered the jurisdiction of the Italian judge to be legitimate. The content of the shareholders’ agreement concerning the management syndicate which is the subject of the dispute, in fact, does not interfere with the validity, nullity or dissolution which is the subject of the decisions of the company bodies. The content of the shareholders’ agreements has binding effects only for those who sign them. Hence why the judges of the high court have decided to confer jurisdiction on the case to the judge of the country in which the defendant is domiciled, in this specific case the director of the company.