Page 116 - Albanian law on entrepreuners and companies - text with with commentary

request to pursue claims on compensation of damages occurred from the Company,
annulment of the decision and other claims which this Law or the Statute envisage
against Managing Directors or members.
(7) Paragraph 6 of Article 91 applies also for these claims.

Comments:

1. The discussions on this section of the Law led to a number of amendments to Article 92
(1) and 92 (2). We have said already that the Articles 91-92 is a derivative suit. Under these
Articles, the member representing at least 5% of the equity or a smaller amount specified by
the Articles of association, and any of the company creditors (claiming to have unsatisfied
claims against the company amounting to at least 5% of the company’s capital) has the right
to asking the General Meeting to file a suit against the Managing Director, applying for the
nullification of an action or for the payment of damages to the company. Given that any
lawsuits under this Article are company lawsuits, and not minority members’ or creditors’
ones, they will have to be filed by the General Meeting, and in case of omission they may be
filed by minority members or creditors on behalf of the company only.
Based on the above, the claims are derivative, i.e. they cannot be filed by the minority
members of the creditors on their own behalf.

2. Following a concern raised by the stakeholders, there was a request to clarify whether
the lawsuit was to be filed in the name of the company rather than in the name of the minority
members or the creditors. Also, in an analogy with joint-stock companies (Article 151), it was
suggested that, in the case of limited liability companies, too, only creditors with claims of an
amount at least equal to 5% of the company equity would have a right to file derivative
lawsuits under Article 92 of Law No. 9901. Under the original wording of Art. 92 (2) of the
Company Law 2008 any creditor could start a derivative action. During the 2011-2012 review
of the Company, some stakeholders believed this was too wide. They believed this is likely to
open the floodgates for claims. Therefore, Article 92 paragraphs 1 and 2 were amended
accordingly.

Article 93
Rights Attached to Share
In the event of a member being prevented from exercising the rights attached to
his shares he may request the court to enforce these rights or grant compensation. A
claim must be brought within 3 years of the denial of the right.

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