It is a reductionist error to conceive of the law of freedom of association as a constitutional prerogative circumscribed only to the power to form collective entities, such as corporations, since in reality, this right also encompasses the inalienable right of every person to disassociate himself or herself from the of the legal structure of which it was once a part.thus reaffirming their autonomy and self-determination.
That is to say, the act by which a partner decides to separate The fact that he is a member of the commercial company to which he belongs is nothing more than an unequivocal manifestation of the same fundamental right that allowed him to join the company in the first place.
This prerogative, enshrined in the constitutional framework, finds its most eloquent reflection in the corporate sphere, particularly in the stock corporationrecognized as the maximum expression of the capitalist corporate model.
Under this scheme, the shareholders of a publicly traded corporation enjoy the inalienable right to separate themselves from societyThe Company's bylaws, as long as the cases set forth in Article 206 of the General Law of Mercantile CorporationsThe provision of such a power, which endorses the dynamic and voluntary nature of the business association, is a rule that, by providing for such power, endorses the dynamic and voluntary nature of the business association:
"When the General Shareholders' Meeting adopts resolutions on the matters included in Sections IV, V and VI of Article 182, any shareholder who has voted against shall be entitled to right to separate of the company and obtain the reimbursement of his shares, in proportion to the company's assets, according to the last approved balance sheet, provided that he requests it within fifteen days following the closing of the meeting".
Consequently, the right of separation is a right of the shareholders of the corporation "....who have voted against the resolutions of the shareholders' meeting on change of corporate purpose, change of nationality, transformation and spin-offs" (León Tovar, S.H., 2018, p. 105). Likewise, it is perfectly valid to argue that the right of separation constitutes a essential prerogative shareholder, conceived as a mechanism for the voluntary severance against the corporation of which it forms part, motivated by a substantial disagreement with any of the determinations adopted by the general shareholders' meeting. This right operates, therefore, as a instrument for the protection of dissentpreserving the coherence between the individual will and the collective course of the corporate entity.
However, although this right is established as a power, it is not a right to intrinsic to the corporate prerogative bundle that every shareholder has, the exercise of his or her is not irretrievably limited to the cases provided for in Article 206 of the General Law of Mercantile Corporations. On the contrary, it may be subject to extension, specification or particular configuration by means of bylaw clauses expressly agreed upon by the corporate will, as authorized by paragraph b), section VII of article 91 of the same mercantile law:
"The articles of incorporation or policy of the corporation shall contain, in addition to the information required by Article 6, the following:
(...)
VII. If applicable, the stipulations that:
(...)
In the same vein, the exercise of the right of separation by the shareholder should not necessarily be constrained to the grounds rigidly delineated in the aforementioned Article 206 of the General Law of Mercantile Corporations. On the other hand, the rules governing its origin and execution may be subject to a more flexible and nuanced configuration by expressly incorporating them in the bylaws, through agreements that reflect the will of the partners and the particular design of their internal regime.
While it is legally valid to delimit the scope of this power According to what is decided by the statutory flow, a relevant normative tension arises when trying to reconcile the content of articles 206 and 91, section VII, of the same legal body, or in other words, this interpretive collision can lead to scenarios in which the right to privacy is not shareholder's freedom of association -which includes both voluntary incorporation and voluntary separation. dangerously corneredThe exercise of this right is subject to restrictions that make it difficult or practically impossible to exercise it effectively.
Thus, when the bylaws operate to the detriment of the right of separation, or when the law imposes formulas that are difficult to harmonize, there is a risk that the shareholder will be left with the right of separation. trapped in an unwanted legal relationshipwithout adequate mechanisms for their disengagement, which not only violates their sphere of autonomy, but also denaturalizes the free and voluntary nature that should prevail in any commercial association..
This phenomenon is particularly noticeable when it is a strategic shareholderThe majority shareholder, whether a majority shareholder or a shareholder with a decisive influence in the company's affairs, who intends to exercise the right of separation. In such scenarios, this power is hindered by a carefully designed legal engineering to shield its permanence, through sophisticated anti-exit covenants inserted in the social contract.
In view of the foregoing, it is not uncommon for these shareholders to be vested with special series shareswhose statutory configuration restricts the causes of separation within extremely restrictive and exceptional margins.
Under this logic, it is common for the remaining shareholders -moved by the desire to preserve the strategic stability and the symbolic or financial capital represented by such partner- to implement all kinds of restrictions aimed at preventing their dissociation, which includes artificially limiting the right of separation to minimum hypotheses, even more reduced than those provided for in Article 206 of the General Law of Commercial Companies, which represents a distortion of the corporate balance and a potential violation of the freedom of association in its negative aspect: to withdraw from, separate from or freely abandon a corporate structure with which it no longer shares an interest or business vision.
The challenge, then, is to find a point of equilibrium that safeguards both the continuity and governance of the society, as well as the voluntary and free essence of the associative bond.
What happens when the right of separation has been designed within the statutory framework with an excessive, almost suffocating degree of restriction? In a first approximation, it could be argued that, if this power has been shaped in a notoriously limited manner through a corporate agreement entered into under the protection of the article 91, section VII (b), subsection VII of article 91 of the General Law of Mercantile Corporationsthere is the latent risk of an outright violation of corporate rights inherent to the shareholder.
The fact is that imposing unreasonably stringent conditions for the exercise of this prerogative -one of the most important of all elementary and inalienable in the architecture of corporate law - can be translated into a genuine affront to its legal sphereby obstructing the legitimate interest of to dissociate oneself from a collective structure with which one no longer shares affinity, objective or desire for permanence.
Such a limitation could even be seen as a form of covert statutory coercionwhere the right of separation is emptied of practical content, leaving the shareholder trapped in an entity that is transformed, by contractual provision, into an entity that, by contractual provision, becomes a compulsory and forced associationThe company's business law, contrary to the principles of freedom and voluntariness that govern not only commercial law, but also the constitutional framework itself in matters of freedom of association. In this sense, the unreasonable restriction not only transgresses subjective rights, but also calls into question the legitimacy of the social pact itselfby distorting the fundamental balances of the corporate regime.
However, the spirit behind Section VII of Article 91 referred to above, far from implying a normative intent aimed at directly or automatically restrict the shareholder's ability to to separate from the corporation of which it is a member, much less to erect barriers that make it impossible for it to leave the corporation, responds rather to a different logicdeeply rooted in the postulates of the autonomy of will governing corporate law. Indeed, this provision, in addition to recognizing the legitimacy of statutory covenants that model the regime of separation, is not intended to suppress or neutralize the disassociation of the partner.The company suggests an alternative way of solution: encouraging shareholders to exercise their economic freedom through the sale of their sharesi.e., through its voluntary transferThis is the most basic, natural and primordial exercise of the right of share ownership.
This is due to the fact that the share is a security whose main feature is that it is ambulatory, i.e., it is intended to circulate because it is a "mercantile thing" as provided by the General Law of Securities and Credit Transactions (Dávalos Mejía, 2012). Therefore, the most elementary and primordial basis that a share title can have is that it is a means that the transfer of shareholder status.
What, then, can a strategic shareholder do if he or she finds himself or herself cornered by an excessively restrictive statutory regime in terms of exercising their right of separation? The answer, as simple as it may seem, is of substantial importanceThe only alternative left to you is to to opt for the transfer or disposal of its shares through the celebration of a legal act transferring ownershipThe Company has a number of legal mechanisms available, such as a purchase and sale, a donation, an assignment of rights, among others.
Therefore, if the controlling shareholder is prevented by the statutory body of the social contract to exercise their right of separation in accordance with the various causes that may be agreed upon in a corporate agreement, invariably, the option to transfer its shares will persistThe mechanism that, even in such contexts, remains intact.
By virtue of the foregoing, it would not be legally appropriate to hold that such shareholder's right to freedom of association has been violated.even though the statutory covenant in question severely narrows the margins of the exercise of the right to separation. The interpretative purpose that must be drawn from the systematic coordination between articles 206 and 91 of the General Law of Commercial Companies (Ley General de Sociedades Mercantiles) does not lie in establishing a regime of prohibition or covert waiver of this right, but rather, in to encourage the use of shares as live instruments in commercial transactionsThe circulation of these assets is promoted through acts of transmission as a natural expression of corporate dynamism.
At the end of the day, the transfer of a share certificate is fully in tune with the very essence of the acts of commerce: the constant flow and equity capital mobility in the framework of commercial relations.
Notwithstanding the foregoing, the dialectical tension between freedom of association and the exercise of the right of separation does not find its definitive outcome in the mere possibility of transferring shares, since, if we take as an analytical axis to the strategic shareholder within a corporation, it is clear that a statutory covenant restricting the right of separation does not constitute, in itself, the only regulatory barrier that can hindering their disengagement from the entity.
In fact, there are at least two additional scenarios that can further narrowing the possible exits for this controlling shareholderon the one hand, the intervention of the board of directors and, on the other hand, the general shareholders meeting.
Pursuant to the provisions of the Article 130 of the General Law of Mercantile Corporationsthe transfer of shares may be subject to the express authorization of the board of directors.This makes this collegiate body an important real institutional filter that conditions, delays or even prevents the effective realization of the disposal of the shares. Thus, the free disposition of securities is subordinated to an external willThis places the shareholder - however strategic it may be - in a state of structural dependence The company's own decision-making centers, accentuating the complexity of the exercise of its associative freedom in a negative sense.
"Article 130.- It may be agreed in the articles of incorporation that the transfer of shares may only be made with the authorization of the board of directors. The board may deny the authorization by designating a purchaser of the shares at the current market price".
The shareholders, in full use of their private autonomy, may agree in the articles of incorporation that the board of directors shall approve or authorize the transfer of a block of shares, and by application of the legal principle qui potest plus, potest minusit may also be validly established that such a transfer or acquisition of shares is subject to the express resolution of the general shareholders' meeting.
In any case, when this type of statutory restrictions on the transferability of shares, whether emanating from the administrative body or from the sovereign assembly, coexist with a statutory framework that severely restricts the exercise of the right of separation, the strategic shareholder - even with its specific weight within the share capital - finds itself virtually trapped in a corporate structure that denies it any viable exit route. In other words, the strategic shareholder would lack any statutorily authorized means of dissociation from the corporation, and would be forced to remain in a legal framework which, although formally legitimate, would not allow the shareholder to exercise his or her right of withdrawal, could strain the boundaries of the principle of freedom of association in its negative aspectby cutting off the possibility of self-determining its continuity within the collective entity.
What recourse is left to the shareholder at such a crossroads? the only legal tool available to the shareholder will be the exercise of a generic action for nullity.Thus, its disengagement may be based on the invocation of contractual, corporate or even equity mechanisms that make it possible to restore the balance broken by the statutory restrictions and ultimately preserve, the essence of its right of self-determination within the corporate entity.
Unless the shareholder can be included in the assumptions and hypotheses set forth in Article 201 of the General Law of Commercial Companies regarding the opposition action (which could be very difficult because generally a strategic or controlling shareholder does not represent a minority in the capital stock), the most viable judicial alternative that the shareholders may have in these cases is the promotion of the generic nullity action provided for in article 8 of the Federal Civil Code, because the corporate contract, by restricting the shareholder from exercising his right of separation or transferring his shares without the prior authorization of a body, his most basic corporate rights would be violated, being a clear disregard of the provisions of the General Law of Commercial Companies, as stated in the thesis "NULLITY OF SHAREHOLDERS' MEETING MINUTES. THEY CAN BE CHALLENGED BY MEANS OF THE GENERIC ACTION OF NULLITY WHEN THE CAUSES AND FACTS THAT MOTIVATE IT DO NOT CLEARLY AND SPECIFICALLY MEET THE ASSUMPTIONS OF NULLITY AND OPPOSITION REGULATED BY THE GENERAL LAW OF MERCANTILE CORPORATIONS":
Therefore, there would be a third nullity action based on the general rules of nullities regulated by the Federal Civil Code, since although de lege ferenda it would be convenient that the aforementioned partners could also exercise the challenge of resolutions adopted in meetings based on the aforementioned precepts of the General Law of Mercantile Corporations, in order to concentrate in a single figure the possibilities of invalidating corporate resolutions, the fact is that the current legal regulation contained in the aforementioned special legislation has the aforementioned limitations, without excluding the generic action of nullity because, in terms of Article 8 of the Federal Civil Code, resolutions are null and void. of the Federal Civil Code, the acts that contravene provisions of public order or prohibitive laws are null and void, and this includes rules other than those of the special law (Third Collegiate Tribunal in Civil Matters of the First Circuit, 2005, Tesis Aislada, Registro digital: 176513).
As a final reflection, it should be specified that the purpose of the foregoing is not to affirm that the regulatory convergence between articles 91 and 206 of the General Law of Commercial Companies is, per seHowever, what is legally unavoidable is to recognize that, in the reality of corporate practice, the will of the parties and the contractual engineering deployed in the bylaws are usually the true architects of scenarios where the most essential corporate rights of the shareholder are transgressed or blurred, even when this implies stifling the legitimate exercise of the right of separation as the ultimate expression of freedom of association in its negative aspect.
By Eduardo Velasco López
References.
Political Constitution of the United Mexican States. Last amendment, regarding ordinary sessions of the Congress of the Union, published in the Official Gazette of the Federation on January 24, 2024. https://www.diputados.gob.mx/LeyesBiblio/ref/cpeum.htm
Dávalos Mejía, C. F. (2012). Securities and credit operations. Theoretical and practical analysis of the General Law of Credit Instruments and Operations and related topics.. 4th ed. Oxford Publishing House.
León Tovar, S. H. (2018). The classes of shares of the corporation and the rights of the shareholder. Kindle edition.
General Law of Mercantile Corporations. Last amendment published in the Official Gazette of the Federation on October 20, 2023. https://www.diputados.gob.mx/LeyesBiblio/ref/lgsm.htm
NULLITY OF MINUTES OF SHAREHOLDERS' MEETINGS. THEY CAN BE CHALLENGED BY MEANS OF THE GENERIC ACTION OF NULLITY WHEN THE CAUSES AND FACTS THAT MOTIVATE THEM DO NOT CLEARLY AND SPECIFICALLY MEET THE ASSUMPTIONS OF NULLITY AND OPPOSITION REGULATED BY THE GENERAL LAW OF MERCANTILE CORPORATIONS. Third Collegiate Court in Civil Matters of the First Circuit. Isolated Thesis. Civil. Digital record: 176513. Thesis: I.3o.C.514 C. Ninth Epoch. Judicial Weekly of the Federation and its Gazette. Volume XXII, December 2005, page 2730. https://sjf2.scjn.gob.mx/detalle/tesis/176513
