The Action for Nullity of the Shareholders General Assembly’s Decisions and Oppression Remedy: two different Tools belonging to different legal System
The Action for Nullity of the Shareholders General Assembly’s Decisions and Oppression Remedy: two different Tools belonging to different legal System

Summary/Abstract: The article argues that, despite being based on different legal concepts and using primarily different legal techniques, the action for nullity of the shareholders assembly’s decision and the oppression remedy claim are similar from a functional perspective. This entails further similarities, including legal technique ones. This is more than the classic scheme “different ways – same solution”; it is something like “different ways – same solution – (partially) same ways”. I argue that in a legal order that superposes a social framework characterized by conflict relations between actors that are not subordinated to each other (such as the corporate law is), it is unavoidable for a civil law judge to scrutinize the intimate relations of these actors, an operation that would not be allowed by the “legality review” paradigm. Nevertheless, the judge can do so if she accepts that the judgment is rendered on the basis of standards, and not of mere rules. In the field of corporate law, this renders irrelevant the distinction between “legality review” and “opportunity review”, borrowed from the administrative law. I illustrate this tenet with examples of litigation taken from the field of the action for nullity of the shareholders assembly’s decisions (in civil law systems) and oppression remedy claims (in common law systems).

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