Shareholders’ Agreements in Spanish Law, A Matter to Be Decided by Judges

Abstract

Shareholders’ Agreements produce in Spanish Corporate Law a substantial level of disputes, most notably regarding close corporations. Three recent decisions of the Spanish Supreme Court on the matter bear witness to this statement. The matter is extremely relevant, given that Shareholders’ Agreements are a common and desirable ingredient of corporate life, and legal uncertainty is harmful for entrepreneurship. The main proposal in the paper is that Shareholders’ Agreements comprising all shareholders in the company, together with the bylaws build the contractual structure of the company. In fact, to a large extent Shareholders’ Agreements contain the rules on corporate governance of the company, and thus, intend to govern unanimously the relationships among shareholders. From this viewpoint, the absolute segregation, within the legal theory of the corporation, of Corporate rules from Contract rules should be revisited and revised.

Keywords: shareholder’s agreements, enforcement, close corporation