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Horpadások a karosszérián – felelős társaságirányítási kérdések az elmúlt időszak autóipari botrányainak tükrében
3-14Megtekintések száma:72The aim of the article is to examine the key corporate governance issues in light of the recent scandals in the automotive industry. The article explores the underlying reasons which culminated in the events of the General Motors ignition switch scandal, and Volkswagen's "Dieselgate". While these two events may seem unrelated at the first glance, however, the facts show that similar problems led to these scandals, most of which were deeply rooted in the corporate culture. Factors, such as the lack of clear and honest communication and the willingness to bend the rules show that the principles of corporate governance were not put in practice within these corporations. The author believes that by taking corporate governance seriously the scandals could have been entirely preventable.
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A társasági jogviszonyok szabályozása a német polgári jogi társaságban
Megtekintések száma:49Partnership under the civil code is a harsh institution in Hungarian legal system. Despite of this fact, most of the European countries apply this legal entity a lot as a background for other, more complicated corporate forms. In my essay I demonstrate those rules in German Civil Code (BGB), which show the importance and opportunities of these partnerships.
If we would like to describe the essentials of partnerships under the Civil Code, the most important question is the legal relations from both inner and external point of view. Internal relations mean an obligation between the parties, who form this partnership. It is natural that we can find both rights and commitments between founders. This is a contract but BGB says that all parties have equal rights and commitments in the same partnership. As a general rule of the Code, it is permissive, not cogent. BGB has basic regulation for operating such a partnership, but can be useful if founders live with this permissive opportunity and shape special rules for their partnership, which fit to their aims, functions, different financial potential of the parties.
There is a chance for founders to neglect building a whole structure and organization for their partnership, if they want to operate it as an inner partnership, without external relations, focusing only for the rights and omissions between the parties.
From all contract that establishes a partnership under the Civil Code membership rights follow. These rights cannot be transferred. A distinction can be made between administrational, common business management and financial rights. Rights to common business management can consist of right to information, right to supervision or the most important right to vote. Financial rights gather typical rights such as right to dividend or liquidity proportion. These rights are social omissions from the viewpoint of the partnership itself, as these are for the interest of the parties.
The most important omissions of the founders are financial contribution to establish the partnership. This regulation results from that partnership is to promote common aim of the founders, and to achieve this, all of them have to make available pecuniary or non-pecuniary assets. According to a special rule of BGB, over against the other corporate forms, members of the partnership have no omission to increase or complete their assets.
Management of the partnership is not only a right but an obligation too. A special omission is that all members and founders have to be loyal to the partnership. Because of the strong partnership character of this corporate form, this means that members have to keep the interest and aim of the partnership in view. They all are responsible for achieving the aim of the partnership and nobody can sit as a beneficiary. Loyal members have to keep secrets in connection with operating the partnership and of course the sudden obligation to inform the others of all events and experiences, which are in tight connection with the partnership and the interests of the parties. If any of the members breach these obligations, rules of damages can be applied in BGB.
Assets of the partnership are special, because no separated corporate assets form. Financial and non-pecuniary contribution becomes the assets of the community of members. It is undividable and common. But these common assets are strictly separated from the private assets of the parties. Rights for profit and deficit are equal, but this permissive rule allows different regulation in the contract. The only cogent sentence is the prohibition of societas leoniana, i.e. nobody can be precluded of profit and deficit.
External relations mean the representation of the partnership. In this case the most important law is the contract itself. In case of disagreement between the parties, there is a helping rule of BGB: members can act as a body. If we take into consideration the rules of liability, we can say that because of the lack of legal capacity of the partnership, individual liability has its important role. Generally this liability is unlimited, but there is a chance to agree with the creditor to limit liability. But this limitation is only valid for that legal transaction.
Rules for partnerships under the Civil Code in Germany are more detailed and nuanced than in Hungary. Partnership is the basic type of civil law partnerships, such as limited partnership or general partnership. We have to consider that building up a more coherent regulation for these partnerships can be useful to categorize atypical corporations.
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Határokon átnyúló egyesülések és felvásárlások az európai szabályozási keret tükrében
1-12Megtekintések száma:150A tanulmány az egyesülések és felvásárlások globális gazdaságban betöltött szerepét vizsgálja. Tárgyalja az ügyletek végrehajtásának kihívásait, előnyeit és kérdéseit a törvényesség, a társadalom és a kultúra szempontjából. Emellett egy empirikus vizsgálatot is tartalmaz, amely az egyesülések és felvásárlások alkalmazását elemzi különböző társadalmi és kulturális munkakörnyezetek jelenlétében.
Az írás kitér arra is, hogy az ilyen típusú ügyleteket milyen jogi eszközökkel szabályozzák a világ különböző területein, különösen az Európai Unióban. Kitekint az Európai Unióban az egyesüléseket és felvásárlásokat szabályozó jogi eszközökre, és megkérdőjelezi az Európai Unió alapvető szabadságainak alkalmazhatóságát a határokon átnyúló egyesülési és felvásárlási irányelvek fényében. A tanulmány vitatja továbbá az Európai Bíróságnak a letelepedés szabadságával és a határokon átnyúló M & As alkalmazásával kapcsolatos megközelítését.
Végül a cikk bemutatja a határokon átnyúló egyesülési irányelvek rendelkezéseinek hátulütőit, és megkérdőjelezi az európai jogalkotó azon döntéseit, melyeket az említett irányelvek kidolgozásakor hozott.
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Texas Shoot-out, avagy biztosítéki konstrukciók a szindikátusi kötelemben
118-129Megtekintések száma:67The shareholders agreement is considered a typical contract. This agreement is concluded by and between the members of the company in order to establish the rules of the cooperation among them, their behaviour towards and expectations from each other in connection with the company.
The agreement is often used in the practice, since its flexible construction enables to rule various types of transaction. For example, in Hungary there is a growing tendency i.e.the major investments and joint venture agreements are being established in the frame of a shareholders’ agreement.
On the other hand, drafting such a contract is a complex procedure. This type of agreement is not governed by specific law, therefore the general rules of the contract law may be linefore. Furthermore the shareholders’ agreement is located at the borderline between the civil and company law, and in a given case it might be complicated to enforce the provisions of the agreement. For example, if the member breaches the voting provision outlined in the shareholders’ agreement, then the resolution passed upon the contract breach cannot be challenged.
Due to lack of a specific law, the practice created the adequate legal securities to ensure the enforcement of the cooperation structure outlined in the shareholders’ agreement.
As the first analysed security, the purpose of the buy-out clauses (Russian Roulette, Texas Shoot-out, Dutch Auction, Put-Option, Call-Option) is to ensure the company’s permanent operation, if there is an insoluble dispute among the members, which obstructs the decision making, and consequently the operation of the company, as well. The concept of the buy-out clause is to settle the dispute in the way of taking over the participation of the involved member by another member.
The exit clauses (Drag Along, Carry Along) aimed to encumber or to unburden the step out from the company. The entitled person is able to sell the shares of the remaining members to the buyer, or to oblige the seller to sell his own and the entitled person’s participations jointly to the buyer.
The takeover clauses’ (Control Flip Over, Swiss Clause) duty is to enable the enforcement of the corporate legal obligations outlined in the agreement. If a member fails to fulfil his obligations, the entitled person may acquire his participation, which will enable him to pass the necessary resolution in the members meeting (general meeting). After the voting, the “seller” is entitled to buy back his participation at the same price.
If the members want to exclude acquiring participation by third persons in the company without their approval, there are adequate securities to be specified in the shareholders’ agreement (for example the right of first refusal, option right).
By the specific type of shareholders’ agreement the creditor makes investments in the company and becomes member in order to secure the transaction. If the company or the original owners of the company breach the contract, they will be held individually liable till the limit of the investmented amount.
The shareholders’ agreement is an efficient option to rule major transactions, and with the help of the securities described in this study, the investor could feel his money in safe. On the other hand, there are still a lot of questions to be answered. For example the compliance of these securities with the strict provisions of the law. It is the duty of the practice to reveal the answers.