УКЛАДЕННЯ КОРПОРАТИВНОГО ДОГОВОРУ

Abstract

The article analyzes problematic issues that arise in the process of concluding a corporate agreement. The purpose of the article is to determine the form of the corporate agreement, the methods and procedure for its conclusion. The research was conducted using the following methods of cognition: dialectical, systemic and structural, logical and legal, comparative and legal and other general scientific as well as special scientific methods. The types of corporate rights (obligations), the procedure and stages of concluding a corporate agreement were researched using dialectical methods such as systemic and structural. The logical and legal method was applied for processing and substantiating directions for improvement of the legislation regarding the conclusion of a corporate agreement. The comparative law method was used while analysing the provisions of the current Law of Ukraine dated by September 17, 2008 No. 514-VI "On Joint-Stock Companies" and the Law of Ukraine No. 2465-Ⅸ "On Joint-Stock Companies" adopted on July 27, 2022, which will enter into force from January 1, 2023, regarding the form of concluding a corporate agreement, on the basis of which shortcomings in the legal technique in the current shareholder legislation were revealed. It was determined that the most significant stage in the conclusion of a corporate agreement is the agreement of the will of all the participants, which can be carried out in the pre-contractual process, which precedes the actual signing of the relevant document by the parties, since the agreement of the terms of the corporate agreement directly affects the distribution of corporate control and can determine the policy of the corporate management in society. The methods of concluding a corporate agreement were distinguished, namely: 1) signing as a result of a joint development and agreement of the terms of the contract in negotiations; 2) by sending the text of the corporate agreement signed by one party to the other party, signing it by the other party and sending it for signature to the next party, while none of the parties should make changes to the wording of the text of the agreement being signed. On the basis of the conducted research, the following conclusions were drawn: a) the special purpose of the corporate agreement, the specificity of the subject composition and its peculiar scope of application prompt, the neccessety to obtain appropriate legal regulation of the issues of concluding such an agreement, the implementation by the parties of the "mechanics" of such an agreement, since the conceptual importance of this issue is that the details and completeness of the definition of the rights and obligations of the parties to the corporate agreement, its validity, stability and predictability of the legal relations that will arise between the parties to the agreement depend on how the agreement will be concluded; b) the expression of the will of a member of the company who is not a party to a corporate agreement, or a third party, to enter into such an agreement does not result in the automatic consent of the parties to such an agreement to enter into such an agreement "with anyone and everyone";3) the specificity of the conclusion of a corporate contract is explained by its phenomenon, its "sui generis", that is, the uniqueness of this legal construction, which, despite the presence of similarities with other similar constructions, has a certain specificity, in connection with which the traditional exchange of an offer and acceptance as a method the conclusion of the contract is not applicable for the conclusion of both multilateral and bilateral corporate contracts. The requirements for the form of a corporate agreement, which are expressed in the need to conclude a single document signed by the parties, can be met by: 1) drawing up and signing a document that contains the conditions developed by the parties as a result of negotiations, in the joint presence of the parties to the future agreement, as well as 2) when the document is successively signed by all its parties without joint presence and without making changes to the text of the contract; 3) the requirements for the form of a corporate contract, established in the legislation, make it impossible to conclude it using information and communication systems, by acceptance for execution, transfer of property, implementation of conclusive actions, conclusion of the contract on organized capital markets and organized commodity markets, auctions, and tenders.