Shareholders Agreements and Shareholders' Remedies - Contract Versus Statute?

Bond Law Review, Volume 20, Issue 2, 2008

29 Pages Posted: 22 Jun 2018

Date Written: Jan 12, 2008

Abstract

Shareholder agreements reflect a reassertion of contractualism in corporate law at a time when statutory regulation is more extensive than ever. Though not displacing the statutory contract between members, shareholder agreements have a role to play both in direct contract between parties but also in setting reasonable expectations that may play a role in oppression actions or winding up on the just and equitable basis. As contracts they are prima facie enforceable but also subject to statutory overlays in the form of the laws of misleading and deceptive conduct and unconscionable conduct. Finally they are subject to some limitation in that the common law suggests that a company cannot in a shareholder agreement deprive itself of its power to alter its own constitution. There is also some doubt about the extent to which directors’ duties can be attenuated by shareholder agreement and whether shareholder disputes can be made the subject exclusively of commercial arbitration and kept out of the courts.

Keywords: Shareholders Agreements, Shareholders Remedies, Oppression, Contractualism

JEL Classification: K12, K22

Suggested Citation

Duffy, Michael, Shareholders Agreements and Shareholders' Remedies - Contract Versus Statute? (Jan 12, 2008). Bond Law Review, Volume 20, Issue 2, 2008, Available at SSRN: https://ssrn.com/abstract=3192206

Michael Duffy (Contact Author)

Monash University ( email )

23 Innovation Walk
Wellington Road
Clayton, Victoria 3800
Australia

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
104
Abstract Views
416
rank
317,165
PlumX Metrics