Shareholder agreement as the main manifestation of discretion in the corporate law of Ukraine

Abstract

The article discusses the prerequisites for establishing comprehensive legal regulation of the shareholder agreement in the corporate law of Ukraine. It argues that the shareholder agreement is an essential tool for regulating corporate relations and ensuring effective interaction among corporation members. The article emphasizes that the shareholder agreement is the main manifestation of discretion in the corporate law of Ukraine, and outlines its advantages over corporation charter, including greater flexibility, adaptability to unique circumstances, and the ability to establish optimal methods of responsibility for the parties. The article also highlights the advantages of using compensation as a mechanism for ensuring "satisfaction" in the event of a violation of the shareholder agreement, while also noting that parties can choose alternative mechanisms of responsibility that best suit their interests.
 It pays particular attention to the interaction between the shareholder agreement and legislative regulation and local corporate acts, such as the charter and bylaws of corporations. The article argues that the provisions of the shareholder agreement are limited by the imperative provisions of corporate legislation and the rules of the charter, which is the main local corporate act of the company. It recommends changes to corporate legislation to clarify the distinction between the provisions of the charter and the shareholder agreement, particularly in relation to the preemptive right of members of LLCs and ALLs, to avoid conflicts between the two.
 The argument is made that changes to corporate legislation are necessary in order to improve certain provisions. One such improvement would be to clarify the provision regarding the nullity of the shareholder agreement, which should include an obligation to vote in accordance with the instructions of the company's management bodies. Additionally, the range of subjects to which this provision applies should be expanded to include the company's subsidiaries and any other company bodies. It is also important to prohibit the inclusion of provisions in shareholder agreements that are aimed at harming the rights and interests of other members or shareholders of the corporation, as well as the interests of the company itself.