Legal conflicts at a company; Agreements between shareholders and Bylaws.

The life of a Company is highly dynamic, internally the shareholders interact with each other and with the company, and externally the company carries out many activities with third parties to achieve its corporate purpose.

Some of these interactions will trigger conflicts that may lead shareholders to file a lawsuit to safeguard their rights. In this context, not all disputes derive from Shareholders’ Meetings, these controversies may also derive from a violation of the bylaws or, a shareholders’ agreement if there is one.

In any case, the type of procedure will depend on the violations that are considered to have been committed and the person who is considered to have failed to comply with the obligations, be it another shareholder, the board of directors, or the company itself. Some examples of these conflicts could be a violation of the right of first refusal, or the tag-along and drag-along clauses, or the lack of approval for a sale of shares.

In these contexts, shareholders wishing to initiate proceedings have several options depending on the context in which the grievances occurred and the objective to be achieved, the following options are commonly chosen: i) annulment of certain acts ii) compulsory compliance with obligations, iii) civil liability procedures or iv) forced call to assembly

With regard to civil liability procedures, in general, the administrators are held responsible for acts carried out outside the scope of their faculties. Some examples of this could be: i) acts negligent or illegal, that is, assuming obligations on behalf of the company that derives from violations of the law or the bylaws of the company, ii) not fully complying with the tax obligations of the company or iii) carrying out acts that could constitute fraud of creditors.

It will depend on the claims made by the shareholders as well as the repercussions that the claimed acts may have if there is the possibility of claiming damages or compensation in a legal proceeding. However, in Mexico courts do not usually award punitive or consequential damages in commercial disputes. For damages and loss of benefits, Mexican law refers to proof of the direct and immediate consequences of the violation to take into consideration the award of compensation and this normally does not include what is known as punitive damages in other jurisdictions.

An important and quite useful procedure in commercial matters are precautionary or precautionary measures, in this sense, the Commercial Code limits the measures to the retention of assets and restriction of free transit of people who could help in the procedure, however, the Supreme Court of Justice has ruled indicating that the parties may request the measures that are necessary to maintain the state in which the dispute is found and thus safeguard the matter of the dispute, for their request some requirements are contemplated, such as: i) that the ownership of the right and the need for the measure be presumably accredited, ii) the urgency of the concession, and iii) the issuance of a guarantee by the petitioner to compensate, if applicable, the possible damages that may be caused to the other part.

Taking into account the above concepts, it will always be more beneficial for individuals or companies to opt for negotiations or mediation of disputes, it should not be forgotten that at any time in the dispute, even with a judicial proceeding already started, it will be possible for the parties to reach an agreement to resolve the conflict.


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