Ответственность на основе доктрины, разработанной решением судебных инстанций по делу «Райлэндз против Флетчера», в английском праве признается самостоятельным деликтом. Действительно, одно время ответственность на основании этой доктрины принималась за попытку расширить пределы применения строгой ответственности на ответственность владельца источника повышенной опасности или на ответственность владельца производства[261]. Широко этот принцип используется судами для обоснования ответственности за вред, причиненный утечками воды, газа, нефти из трубопроводов и танкеров. Использовался этот принцип также и для взыскания ущерба, причиненного взрывными работами в карьере, взрывами динитрофенола на фабрике по производству взрывчатых веществ. Сфера его применения была также распространена на «долговременное» воздействие ядовитого дыма из фабричных труб. Данный принцип исходит из непременного условия использования земли особым образом, чреватым повышенной опасностью для людей. Оно не должно быть просто обычным использованием земли или таким, которое служит общественным интересам. В силу этого данный принцип не распространяется на обычные бытовые ситуации, которые могут возникать, например, при утечках воды и газа в квартирах, дефектах электропроводки в жилом доме либо в конторе фирмы.
Сегодня судебный прецедент, который зародился в Англии, набирает стремительное проникновение и в другие правовые системы. Особое значение судебный прецедент приобретает в связи с деятельностью Европейского суда по правам человека. Так, в странах континентальной Европы, в том числе и в Украине, где Европейская конвенция о защите прав человека и основных свобод имеет юридическую силу, решения Европейского суда, прецедентные по своему характеру, являются обязательными для национальных судов всех инстанций. Из этого следует, что тенденции развития украинского права, в частности и уголовного, совпадают с тенденциями развития права континентальной Европы[262].
Европейская конвенция о защите прав человека и основных свобод (далее - Конвенция) не содержит положений, гарантирующих право на чистую, тихую окружающую среду[263]. Тем не менее, количество дел, связанных с ущербом, наносимым человеку действиями либо бездействием властей в данной области, разрешаемых Европейским судом по правам человека (далее - Европейский суд), увеличивается. Это демонстрирует, что в ней заложена возможность защитить экологические права человека. Для этого применяются права, уже закрепленные в Конвенции и на первый взгляд не имеющие отношения к экологии. В настоящее время ученые говорят о «позеленении» ряда прав, закрепленных в Конвенции. Расширяя объем правоотношений, на который распространяются гарантии Конвенции, Европейский суд применяет положения, касающиеся экологического права. Так, в деле «ДиСарно и другие (DiSarno and Others) против Италии»[264] Европейский суд сослался на положения Конвенции ООН о доступе к информации, участии общественности в процессе принятия решений и доступе к правосудию по вопросам, касающимся окружающей среды (Орхусская конвенция), расширив область обязательства по предоставлению информации об угрозах, включив в нее не только опасную деятельность человека, но и стихийные бедствия. Интересно, что Европейский суд исходил из стандартов этой Конвенции и в деле «Ташкын и другие (Tashkin and Others) против Турции», хотя Турция не является участницей этого соглашения.
Кроме того, исследовав все обстоятельства по делу «Дубецкая и другие против Украины», Европейский суд пришел к выводу, что на протяжении длительного промежутка времени деятельность шахты и фабрики нарушала нормы украинского экологического законодательства[265]. В сложившейся ситуации государство не способствовало переселению этих семей, не обеспечило эффективную защиту от экологических рисков, связанных с постоянным проживанием в непосредственной близости от промышленных предприятий. Таким образом, все это время люди находились на территории, которая была опасна для проживания из-за загрязнения воды и воздуха, а также посадки грунтов вследствие производственной деятельности двух государственных промышленных предприятий. В этом деле Европейский суд установил, что, хотя «решение экологических проблем, связанных с работой двух крупных промышленных предприятий, которые функционировали с нарушением норм с самого начала и нагромождали отходы на протяжении более 50 лет, являлось сложной задачей, которая требует времени и значительных ресурсов, тем более в контексте низкой рентабельности этих объектов и общегосударственных экономических трудностей, власти не предоставили достаточных объяснений, почему им не удалось в течение более чем 12 лет либо переселить заявителей, либо найти какие-либо иные эффективные решения их индивидуального бремени».
Выводы. Проведенный сравнительный анализ институтов уголовного права в сфере охраны атмосферного воздуха стран Великобритании и Украины основывался на исследовании норм, что устанавливают ответственность за совершение преступлений в этой сфере. Проведенный в статье сравнительно-правовой анализ дает возможность сделать предположение, что повышение опасности посягательств на окружающую среду, объективно требует совершенствования как отечественной, так и зарубежной уголовно-правовой охраны природы.
Gleb A. Pichikov, Aleksey E. Pechenkin,
Masters of Law,
International Business Law (LLM),
Faculty of Law, Novosibirsk State University,
Novosibirsk, Russia
REPRESENTATIONS, WARRANTIES AND INDEMNITIES IN ENGLISH LAW
Introduction. Using words «representations» or «warranty» or «indemnity» makes essential difference if it settled by a contract and may trigger material consequences to parties. At first, the distinction between these legal concepts means the difference in damages which are potentially recoverable can be significant. In case of Sycamore Bidco Ltd v Breslin & Anor[266], buyer tried to prove that the warranties in a share purchase agreement also constituted representations. The High Court of Justice noticed: «... The point has a real significance in terms of the measure of damages (and also the date at which damages should or can be assessed), so it is necessary to deal with it. If the claimants are right about it, and can otherwise put their claim successfully in misrepresentation, then they may be entitled to recover damages which would not be available under a contractual claim. At their highest, the misrepresentation claim damages are equivalent to or exceed the consideration paid. At its highest the warranty damages claim is about £6 million. Hence the point's importance.» So, lawyers must be extremely exact while drawing a contracts by English law.
Representations. Representation is a statement, which relates to a matter of fact or present intention, made during contractual negotiations, which the parties do not ordinarily intend will become a contractual term, but which may induce another party to enter into a contract[267]. There is a deep difference between promises and representations: a promise may be defined as a statement by which the maker of the statement accepts or appears to accept an obligation to do or not to do something. At the same time, representation is a statement which simply asserts the truth of a given state of facts. The distinction between this terms was shown in case of Kleinwort Benson Ltd v Malaysia Mining Corp Berhad[268]. The claimants agreed to make available to a subsidiary company of the defendants a £10 million credit facility. The defendants refused to act as guarantors but they gave to the claimants a letter of comfort which stated that ‘it is our policy to ensure that the business of [the subsidiary company] is at all times in a position to meet its liabilities to you under the above arrangements’. The subsidiary company ceased to trade after the collapse of the tin market at a time when its indebtedness to the claimants was £10 million.
The defendants refused to honour their undertaking in the letter of comfort and so the claimants took proceedings against them, arguing that the defendants were in breach of contract in failing to pay. But the Court of Appeal held that the letter of comfort did not amount to a contractual promise by the defendants. Therefore, they were not liable to the claimants. It was held that the letter of comfort was simply a representation of fact as to the defendants’ policy at the time when the statement was made. The defendants did not promise that they would not change their policy for the future; they did not state that ‘it is and will at all times continue to be our policy to ensure that the subsidiary will at all times be in a position to meet its liabilities to you’. So, promises and representations are functionally different and have different legal consequences.
Connected to representation term is misrepresentation - unambiguous, false statement of fact or law which is addressed to the party misled, which is material and which induces the contract. Negligent misrepresentation is actionable at common law where there is a Hedley Byrne v Heller[269] relationship between the claimant and the defendant. The existence of such a relationship depends upon a number of factors, including the knowledge of the representor, the purpose for which the statement was made and the reasonableness of the reliance by the representee.
Legal regulations of representations consist of statute and common law. Fundamental aspect of this institute is that English law allows a tort recovery for misrepresentation without even contractual liability considered, according to Misrepresentations Act of 1967[270]. Under this statute, if material misrepresentation is in a contract, this is a ground to rescind it. Usually English courts won't look into such background as the intent of party who made representation or into how justifiable reliance can be. The right of rescission can be barred in a number of circumstances, including where it is impossible to put the parties substantially back in their original position or where third party rights would be infringed - where rescission is unavailable for any reason, the court will usually award damages in lieu of that remedy. Section 2(1) of the Misrepresentation Act 1967 states that where a misrepresentation has been made by one contracting party to another, the party making the misrepresentation is liable to the other in damages unless he can prove that he had reasonable grounds to believe and did believe up to the time that the contract was made that his statement was true.
The principal remedies for misrepresentation are rescission and damages. Rescission is in principle available for all types of misrepresentation. The effect of rescission is generally to put the parties as far as possible into the position which they would have been in had the contract not been concluded and in particular to ensure that the claimant is not unjustly enriched at the defendant’s expense. Damages can be claimed for fraudulent and negligent misrepresentation and under section 2(1) of the 1967 Act. In all cases the measure of damages is the 13.1 13.2 13.3 13.4 13.5 13.6 reliance measure. In the case of innocent misrepresentation the court has a discretion to award damages in lieu of rescission under section 2(2) of the 1967 Act. The ability of a contracting party to exclude liability for misrepresentation is controlled by section 3 of the Misrepresentation Act 1967 which subjects any term which purports to exclude or restrict liability or a remedy for misrepresentation to the reasonableness test.
Important requirement to representation consist in representing fact, not opinion. In case of Royal Bank of Scotland PLC v Chandra[271] Court of Appeal noted, that « … It therefore makes no difference whether one treats the representation as a forecast of future costs or as a statement by Mr Chandra of what his own belief was in respect of the likely future costs. Mrs Chandra did not ask her husband for a breakdown of all the relevant pros and cons used in his calculations and did not get one. She did not ask him in terms whether it could be said with confidence that future finance would not be necessary and he did not say to her that his forecast was or was believed to be one which could be made with complete confidence. She asked for and was given his conclusions: і.e. his own view of whether £700,000 would be enough. Even if it can be said that his view was negligent, it does not amount to a misrepresentation....».
As to estimates of damages for misrepresentation claims in tort, general rule is that damages are quantified at the date the misrepresentation is made - effectively meaning the same date of assessment for both contract and tort claims. For claims in both contract and tort, in case of Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd[272], the court noticed, that it retains discretion to substitute a different date of assessment if that would give rise to a more just award of damages.
The damaged party may loose a rescission right in some circumstances. First of all its about estoppel: the actions of party mustn't go against decision to rescind a contract. In case of Long v Lloyd[273] plaintiff induced to purchase lorry by defendant’s misrepresentation that it was in excellent condition. On the first journey after sale, the dynamo broke and the plaintiff noticed several other defects. Defendant offered to pay half the cost of some of the repairs. On the next journey, the lorry broke down completely. Examination by an expert showed that the lorry was not in a roadworthy condition at all. Court held that although the first journey did not amount to affirmation since it was a trial run, the second journey was held to be an affirmation since the Plaintiff had knowledge that the representation was untrue.
Warranties. In early contract law breach of warranty was, in its origin, a pure action of tort. It continued as a tort action until Stuart v. Wilkins, in 1778, which is said to have been the first instance of an action of assumpsit upon a seller's warranty. From that time until the present the tendency to treat breach of warranty as a contractual action has gained momentum until now many courts simply assume that a warranty is contractual in nature.[274]
In modern contract law, warranty is a contractual assurance from a seller to a buyer. It is a subsidiary or collateral provision to the main purpose of the agreement. A breach of warranty claim is an action for breach of contract and is subject to the normal legal requirements of proving loss. A party that breaches a warranty is only responsible for the loss and damage that is foreseeable as a result of the breach.[275]
For example, In Sale of Goods Act 1979 «warranty»means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated.[276]
The damages for which a seller is liable is the amount necessary to compensate the purchaser for any loss resulting from the breach. For example, where a company is acquired through the purchase of shares, the damages for which a seller is liable is the difference between the amount paid for the shares and the market value of the shares at the time of acquisition.
This puts the buyer into the position that it would have enjoyed had the contract been properly executed. Accordingly, where breach of warranty results in a target company incurring liability, but its market value is not affected, the damages for such a breach would be nil.
In case Robinson v Harman (1848), which is best known for a classic formulation the rule of the common law, that where a party sustains loss by reason of a breach of contract, he is, so far as money can do it to be placed in the same situation, with respect to damages, as if the contract had been performed. [277]
Warranties can take many forms and no one set of warranties can be entirely suitable for every case. Buyers will seek to include warranties pertinent to the subject of the agreement and the risks associated with it. Depending on the agreement, warranties could provide protection in a wide range of matters, including ownership of shares, financial matters, quality and performance of products.
In the case Watts v Morrow Mr. and Mrs. Watts had discovered that the property they had purchased required repairs not mentioned by the defendant, a surveyor, in his report in August 1986 prior to their purchasing of the property at a cost of £177,500, £2,500 over the asking price.
When the couple received the report and were satisfied that the building was in no need of urgent repairs, they entered into a contract to buy the house. They took possession of the house in 1987 and decided to get a quotation from a builder, Mr. White, for some of the issues mentioned in the defendants report. It was then that the builder noticed other problems that required attention. Mr. Wadey was then instructed to undertake another structural report. His findings were more extensive than that of Mr. Morrow's and he had identified some issues that were in need of immediate redress. Mr. and Mrs. Watts decided then to make a claim for negligence and/or breach of contract.
This case is important as it allows some redress from a negligently conducted structural survey even though there is no warranty given that the «condition of the property had been correctly described.»The case identifies that when someone hires a surveyor he does so to have «peace of mind» and «reassurance» that the house will not cause him distress and inconvenience.
One of the main purposes and effects of warranties is to apportion risk and liability between a buyer and a seller. Warranties protect a buyer by providing a possible price adjustment mechanism if a warranty proves to be false and, in the context of a sale of the business, by enabling a buyer to gather information on the business through a disclosure process.An indemnity is a contractual obligation by one party to reimburse the other with regards to any specific liability that arises. Indemnities usually cover specific risks. The indemnity shifts the potential liability of a specific event or risk from the buyer back to the seller. [278]
Indemnities. Indemnity is a party may claim against the indemnity if it proves it has suffered loss in relation to the indemnified matter. There is no clear duty to mitigate loss unless the contract expressly states this requirement. A party can still claim against an indemnity if they knew about the breach and still entered into the transaction. The limitations parties negotiate for the warranties will not automatically apply to the indemnities. Parties must specifically negotiate any limitations that apply to indemnities separately.[279]
Under common law, a buyer is clearly obliged to mitigate any loss for a breach of warranty. There is no such clear obligation for a buyer to mitigate its loss under an indemnity. It is necessary for a buyer to prove that losses arise as a result of a breach of warranty - that share value has fallen as a result of the breach - and all issues relating to matters such as remoteness of damages apply. With an indemnity, however, a buyer can recover any losses sustained without having to prove that there has been a diminution in share value.
For example, the leading case Whittington v Seale-Hayne is an English contract law case concerning misrepresentation. It holds that indemnities can be claimed under English law for any consequential costs of a contract not turning on an innocent misrepresentation. [280]
In this case which a contaminated farm was sold. The contract made the buyers renovate the real estate and, the contamination incurred medical expenses for their manager, who had fallen ill. It was undisputed that Whittington was entitled to indemnity for rates paid or repairs costs. Whittington sought rescission and indemnity for loss of poultry, profits and medical expenses. There would now be a common law claim under Misrepresentation Act 1967 for damages.[281]
An indemnity is distinct from a warranty in that: an indemnity guarantees compensation equal to the amount of loss subject to the indemnity, while a warranty only guarantees compensation for the reduction in value of the acquired asset due to the warranted fact being untrue (and the beneficiary must prove such diminution in value).Warranties require the beneficiary to mitigate their losses, while indemnities do not. Warranties do not cover problems known to the beneficiary at the time the warranty is given, while indemnities do.[282]
However, warranties should not be used as a substitute for due diligence as it is better and usually cheaper for a buyer to know of a problem in advance so that it has the chance to walk away, negotiate a price reduction or seek specific contractual protection, rather than having to sue for breach of warranty at a later stage.
Conclusion. Warranties are the part of contract, while representations may not be contained in it, cause the first ones have contractual law nature, second ones have tort law nature. There are also difference in damages and rescission between this institutions. Representation consist in representing fact, not opinion. As to estimates of damages for misrepresentation claims in tort, general rule is that damages are quantified at the date the misrepresentation is made. The damaged party may loose a rescission right.
Warranties serve to apportion a risk and liability between a buyer and a seller; and indemnities is a contract by which the party providing the indemnity undertakes as an original and independent obligation to indemnify (make good) a loss. Given the impact that the difference between warranties and indemnities can have on clients, it is crucial that lawyers remember the distinctions between the two while negotiating for best presenting interests of his clients.
Master of Juridical Sciences,
Adilet School of Law, Сaspian University
LEGAL REGULATION OF SHAREHOLDER AGREEMENTS UNDER THE LAWS OF KAZAKHSTAN, LATVIA AND GERMANY
Shareholders’ agreements are known in world law practice. This legal structure provides an opportunity for shareholders to more optimally regulate various issues of corporate activity and to provide such substantive actions (inactions) for the exercise of shareholder rights, like voting at a general meeting in a certain way, the introduction of a certain procedure for the formation of company bodies, the restriction in the disposal of shares belonging to shareholders, the distribution of financial flows, profits, etc.
On this occasion Ya. Dianova points out that the main value of a shareholder agreement is that it allows for: redistributing the rights of shareholders in the domain of corporate governance, regardless of the number of votes given to certain shareholders in accordance with the law; increasing the liquidity of shares of non-public companies by granting to shareholders additional rights to dispose of their shares under certain circumstances and establish appropriate obligations for other shareholders to purchase such shares; providing for the undertakings of shareholders related to the promotion of business development, competitiveness and the economic security of a company that cannot be established by the articles of association and internal documents of the company; stipulating mechanisms for settling disputes among shareholders out of court or through arbitration.[283]
G. Chemla, M.A. Habib and A. Ljungqvist write shareholders’ agreements allow for the detailed regulation of relations between shareholders in cases where legislative provisions are deemed to be not sufficient or not appropriate. From an economic perspective - given dynamic moral hazard and uncertainty - shareholder agreements permit the pursuit of efficiency-driven ex ante decisions with regard to investments in the firm by enhancing certainty in relations and mitigating relational-specific moral hazard issues.[284]
As noted, a good Shareholder agreement is like a fence at the top of a cliff, which stops company owners from falling over the edge and into the hands of lawyers who wait in the ambulance parked beside the rocks below.[285]
Initially, shareholders’ agreements appeared in the countries of the Anglo-Saxon legal system but quickly spread in the countries with Roman-German law.[286]
So, on January 1, 1966, a new Stock Corporation Law (Aktiengesetz)[287] became effective in Germany. Undoubtedly, the corporation has become one of the most powerful forces in 20th century economics.[288] Thus, in Germany shareholders’ agreements have been in use since the second half of the 20th century; it is evidenced by the decisions of the German Imperial Courts at the time: to recognize the validity of the agreements of participants in business entities regarding voting obligations in a certain way.[289] In practice shareholders’ agreements are common,[290] shareholders’ agreements occur primarily in family held stock corporations but are at least not disclosed in all firms with different family members as shareholders.[291] However, despite this fact, Germany is one of the states that does not provide for a special legal regime for shareholders’ agreements.
Since the early 1990s, with the arrival of foreign investors in the Kazakh and Latvian markets, this legal instrument has also been applied in these countries. Nevertheless, Kazakhstan and Latvia are also included in the group of those states where special legal regimes for shareholders’ agreements are not provided.
In Kazakhstan, Germany and Latvia, the parties to the shareholders’ agreements may be the shareholders themselves and the joint-stock company, as well as third parties, subject to certain restrictions, which are based on the main principles of civil law. However, in practice, mainly participants of shareholders’ agreements are shareholders. Moreover, both some shareholders and all shareholders of the company may be parties to the shareholder agreement.
As a rule, the company acts as a party to the agreement, in which shareholders participate, and the company does not bear obligations to the parties to the agreement and receives only rights to protect the interests of the company. For example, when the terms of the agreement provide the company with the right to file a suit against the shareholders to the agreement if the latter abuse their shareholder rights in relation to the company and thereby cause harm to it.
As the law enforcement practice shows, the creditors of the company, creditors of the shareholders, interested in preserving the shares of the respective shareholder for the purpose of foreclosure in case of violation of the obligation, potential investors, spouse or wife of the shareholder, for the purpose of monitoring the implementation of rights with respect to common joint ownership of shares, and others act as third parties.
As German scientists note, the conclusion of such agreements with the participation of third parties is allowed even when these agreements are called upon to create for the latter the possibility to influence the activities of the company. The incentive for consolidation of such a structure is the desire of shareholders to ensure the balance of their interests related to the activities of the company. Practical importance is placed on such agreements when accepting financial investors into the company, which, with the help of relevant contractual rules, want to secure their investments. Separate restrictions for the conclusion of shareholders’ agreements with third parties are established where the third person is given an all-encompassing, unlimited right to determine the behavior of the participants in the company. The invalidity of such an agreement is based on the principle of prohibition of self-elimination from participation in the affairs of the company.[292]
With the participation of the company itself as a party to shareholders’ agreements, one should note the norm § 136 of the German Law «On Joint Stock Companies», according to which the right to vote is not allowed in pursuance of the instructions of the company, the board or the supervisory committee of the company.[293] A similar mandatory norm is also present in P. 1 of Art. 281 of the Commercial Law of Latvia: obligations are void when the shareholder undertakes to always follow the instructions of the company or its structures.[294] There is no similar mandatory norm on joint-stock companies in the Kazakh legislation.
When choosing the terms of the shareholder agreement, the main role is played by the lawfulness of the chosen conditions; otherwise, the agreement can be recognized as invalid (in full or in part), and as a transaction that contradicts the requirements of the law. This rule is general for the Kazakh, German and Latvian legislation.
The legality of the terms of the shareholders’ agreements can be divided into two levels. 1. The legality of the terms of the shareholder agreement is determined by mandatory norms established in the legislation. 2. The legality of the shareholder agreement is determined by the requirements and limitations set out in the charter of JSC.
The analysis of Kazakhstani, German and Latvian legislation on joint-stock companies showed that many norms are formulated mandatorily and cannot be changed at the discretion of the parties to the agreement. This was done to protect the legitimate interests and rights of participants in corporate legal relations, primarily, minority shareholders, as well as other individuals, in the first turn, creditors of the company.
According to the opinion existing in Germany, it is necessary to check in each individual case whether there is a mandatory prescription of the law or shareholders can derogate from it.[295] In turn, norms that contain explicit prohibitions cannot be changed by agreeing parties. For example, such provisions include § 12 of the German Law «On Joint Stock Companies», which provides that where it is stipulated that the release of many-voiced shares is not allowed; § 26, where it is established that any preferential right granted to an individual shareholder or a third party must be specified in the company’s charter with the indication of the empowered person,[296] etc. The case law of the German Supreme Court on this issue confirms it.[297]
Paragraph 3 of Article 281 of the Commercial Law of Latvia stipulates that obligations are void, when the shareholder undertakes to express his attitude during the voting, depending on the remuneration.[298] In P. 1 of Art. 268 of the Commercial Law of Latvia, there is a mandatory norm: only a meeting of shareholders has the right to decide: 1) on the annual report of the company; 2) the use of profits for the previous year; 3) electing and revoking of board members, auditor, company controller and liquidator; 4) presenting an action to the members of the management board, the members of the supervisory board and the auditor or on the refusal of the claim against them, as well as on appointing a representative of the company to support the claim against the board members; 5) changing the company’s charter; 6) increase or decrease of the authorized capital; 7) issue or conversion of securities of the company; 8) determination of remuneration to the council members and the auditor; 9) termination or continuation of the company’s functioning or its reorganization; 10) general principles, types and criteria for determining reimbursement provided to members of the management board and the council; 11) distribution of shares to employees and members of the management board and members of the council.[299]
Thus, the term in the shareholders’ agreement to change the competence of the general meeting of shareholders will be illegal.
In the Law of the RK on JSC, P. 5 of Art. 13 prohibits to transfer the right of veto, certified by the «golden share»; Part 3, P. 1 of Art. 22. establishes a prohibition on the payment of dividends on preferred shares with the company’s securities, etc.[300]
As an example, one can specify the decision of the Specialized Interregional Economic Court of Almaty dated 23.02.2015 on invalidation of paragraph 3.2 of the shareholders’ agreement between shareholders of JSC Almatystroy, according to Art. 158 of the Civil Code of the RK, for the reason that the parties to the agreement changed the statutory period for payment of shares from 30 to 60 days (Part 3, P. 3, Art. 25 of the Law of the RK on JSC).[301]
It should be noted that paragraph 3 of Art. 14 of the Law of the RK «On Joint-stock Companies» stipulates that the rights of shareholders shall not be restricted.[302] Also, according to Art. 8 of the Civil Code of the RK, citizens and legal entities dispose of their civil rights at their own discretion, including the right to their protection.[303] Thus, the Kazakh legislature proceeds from the fact that nobody is entitled to restrict the rights of shareholders, but they can express their will at the disposal of their rights.
Some studies justify the establishment of various types of correlation between the shareholder agreement and the charter of the joint-stock company: 1) shareholders’ agreements may clarify (elaborate) the norms and rules specified in the company’s charter; 2) shareholder’s agreements may be concluded on issues not considered in the company’s charter (in some cases, in legislation as well, thus compensating for institutional weaknesses); 3) the shareholder agreement can be used instead of the company’s charter (і.e., among other things, it can be a hybrid form of managing contractual relationships for the creation of a joint venture); 4) both the charter and the shareholder agreement may act in the company, but since the creation and modification of the terms of the shareholder agreement is associated with lower costs, it de facto serves as the main document that regulates the company’s activity.[304]
An analysis of the German corporate legislation allows making a conclusion that the charter prevails over the shareholder agreement. As Ch. Dittert confirms, the relations regulated by the charter are in most cases priority, even if another version of the distribution of interests is provided for in the shareholder agreement.[305]
In other words, the parties to the agreement cannot subsequently change, at their discretion, the provisions of the charter, which are subject to mandatory binding in the charter, according to the law. Generally, such agreements are void. At the same time, German jurisprudence admits exceptions to this rule, but only when, in spite of the violation of the charter, a participant whose rights are somehow affected by the actual change, cannot invoke invalidity in relation to other participants, since otherwise, such a participant would behave inconsistently, because he earlier agreed with the actual change that was reflected in the agreement, and then he referred to its invalidity due to formal non-compliance with procedures for changing the charter.[306]