Page 61 - Albanian law on entrepreuners and companies - text with with commentary

(2) Unless otherwise provided by this law or the Statute, partners, members and
shareholders have the same rights and duties under the same circumstances and shall be
treated equally.

Comments:

1. Traditionally, fiduciary duties were established for partners (members and shareholders)
as against other partners, and for directors and officers as against the corporation. In the light
of balanced responsibilities emerging during the European and international corporate
governance debate new general principles have emerged. Article 14 (1) of the new Company
Law reflects these principles: mutual trust between stakeholders involved plus common
responsibility for the interest of the company as such. These duties also apply to Managing
Directors in partnerships—they are partners—and they set the general standard for the duties
of Managing Directors—in LLCs and JSCs—and of JSC members of Boards of Directors and
Supervisory Boards, which are further specified by Articles 98, 163, 164 and 167.
The duties expressed by Article 14 (1) obviously also imply fiduciary duties of majority
shareholders as against minority shareholders. If, for example, dividends are withheld from
shareholders for an extended period of time, this may amount to an oppression of a minority
which fiduciary duties are supposed to control. Articles 15 to 18 are special regulatory
expressions of this general principle of ‘mutual trust.’

2. Article 14 (2) is one of the major provisions which are dedicated to protecting a
company’s membership and in particular to control the dominant influence of voting
majorities. In this context, we should also mention Article 1087 Civil Code which provides
that any agreement that excludes one or more partners from the participation in the profit or
loss, is invalid. The Statute cannot abolish the principle of equal treatment as such. It can
certainly apply differences as long as they are not arbitrary, based on sufficient reasons and
proportional with respect to the balance between the interests of the company and the interest
of the partners, members or shareholders.
Any decisions which violate the principle of Article 14 (2) can be challenged in court by
minority members and shareholders according to Articles 91 to 94 and 150 to 153. In
partnerships, violation of the principle can lead to the dissolution of the company on request
of at least one of the partners, Article 47, or to the expulsion of a (managing) partner based on
the same grounds, Article 48.

Article 15
Rights to Information
(1) The person responsible for the management will keep the other partners,
members and the shareholders informed about the company performance and make
available, at their request, any internal document of the company with the exception of
the documents specified in Article 18. This obligation may be fulfilled by placing

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