TÜRKIYE Law and Practice Contributed by: Selim Keki, Çisem Altundemir and Erkin Tuzcular, Balcıoğlu Selçuk Eymirlioğlu Ardıyok Keki Attorney Partnership
• the duty of equal treatment of shareholders under equal circumstances; • convening a general assembly when a signifi - cant portion of the share capital is depleted; and • establishing a committee for early determina - tion and management of risks. Additional obligations may be imposed on the members of the board by the articles of asso - ciation. Please also refer to 3.2 Decisions Made by Par- ticular Bodies . 4.7 Responsibility/Accountability of Directors The directors in JSCs and managers in LLCs are primarily responsible towards the compa - ny. While there are ways for shareholders and creditors to enforce direct claims against them, this occurs as an extension of their duty of loy - alty towards the company itself. In other words, the possibility of making such claims does not establish a direct duty of loyalty towards share - holders or creditors. In the context of group companies, claims can be made by additional parties (for example, the shareholders or credi - tors of the company’s subsidiary), but these also do not construct a direct duty of loyalty. In JSCs that have issued capital markets instru - ments (which includes any listed companies), the board of directors is responsible for prepar - ing accurate financial tables and reports. Board members responsible for preparing financial tables and reports must provide an undertak - ing to guarantee the truth and accuracy of the financial tables and reporting.
Other officers are mere employees and are liable only to the company and under their employ - ment agreements. 4.8 Consequences and Enforcement of Breach of Directors’ Duties If a director faultily breaches their obligations under the law or the articles of association and causes damage to the company, the company itself, its shareholders or creditors of the com - pany may bring an indemnity claim against such director. For companies that have issued capital mar - kets instruments (other than shares), investors in such capital market instruments may bring claims against directors even though they are not shareholders. If listed companies do not adhere to the cor - porate governance requirements, the CMB is authorised to adopt resolutions and take the necessary steps to enforce adherence to the cor - porate governance rules. If the board of directors or the general assembly of a company do not follow the CMB’s instructions to achieve com - pliance with the corporate governance require - ments, although the board of directors has suf - ficient members to resolve on such points within the 30-day grace period to be provided by the CMB, the CMB may appoint a sufficient number of independent board members to adopt neces - sary resolutions and take the steps necessary to achieve compliance with corporate governance rules. In addition, if a public company incurs losses five years in a row, all privileges granted to shares in terms of voting rights and representation at the board of directors can be removed by the CMB.
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