SENEGAL Trends and Developments Contributed by: Malick Lo, Chadi Safieddine and Mohamed Kamil, SCP Houda & Associés
SCP HOUDA & ASSOCIES 66 boulevard de la République Building Seydou Nourou Tall 1st Floor Dakar Senegal Tel: +221 338 214 722 Fax: +221 338 214 543 Email: houda@avocatshouda.com Web: www.avocatshouda.com
Prevention and Management of Shareholder Disputes under OHADA Law: Contractual Tools and Exit Mechanisms Shareholder conflict is one of the most damaging risks to a commercial company’s existence. Whether it takes the form of a deadlocked general meeting, a clash between majority and minority shareholders or a breakdown of trust within a family group, it directly threatens the company’s operations, profitability and sometimes its very survival. In the OHADA region, where economic activity is often structured around joint ventures between local and international partners or family companies with delicate capital structures, this issue takes on particular acuity. The Uniform Act on the Law of Commercial Compa - nies and Economic Interest Groups (AUSCGIE) has enriched the toolkit available to practitioners. Through the express recognition of extra-statutory agreements, the introduction of a provisional administrator and the strengthening of minority shareholders’ informa - tion rights, the OHADA legislator has sought to equip shareholders with the means to prevent and manage crises. Senegalese courts and the Common Court of Justice and Arbitration (CCJA) have since been refin - ing, on a case-by-case basis, the legal regime appli - cable to these instruments. This article provides a practical overview of the avail - able tools, from upstream prevention to crisis exit mechanisms.
Building a Robust Contractual Framework The best way to manage a shareholder dispute is to anticipate it. OHADA law offers considerable latitude to organise, in advance, relations between sharehold - ers and the procedures for resolving conflicts. Preventive Statutory Clauses The articles of association constitute the first line of defence. Public limited companies and simplified joint-stock companies may include approval clauses allowing the board or the general meeting to control the admission of any new shareholder. The pre-emp - tion clause gives existing shareholders priority rights in the event of a proposed share transfer, thereby pre - venting the entry of an unwelcome third party. The lock-up clause, governed by Article 765-1 of the AUSCGIE, temporarily prohibits the transfer of shares for a period not exceeding ten years, provided it is jus - tified by a serious and legitimate reason. These claus - es, to be enforceable against the company and third parties when not contained in extra-statutory agree - ments, must appear in the articles of association and comply with the publication formalities required by the Trade and Personal Property Credit Register (RCCM). Their drafting requires particular care, as an imprecise or imbalanced clause may be rendered ineffective or may itself become a source of litigation. Shareholders’ Agreements and Extra-Statutory Agreements Article 2-1 of the AUSCGIE expressly recognises extra-statutory agreements. Such agreements allow shareholders or only some of them, to organise gov -
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