Are omnilateral parasocial agreements enforceable against the company?

1.- What are parasocial agreements?

2.- Are omnilateral parasocial agreements enforceable against the company?

3.- Are these agreements enforceable in other countries?

4.- Conclusion.

1.- What are shareholders’ agreements?

Shareholders’ agreements or extra-statutory agreements are a widely accepted tool in the commercial field. Their purpose is to regulate the relations between the partners outside the bylaws and the corporate contract. Moreover, their validity is fully accepted in our legal system.

However, it is generally understood that these agreements are of a contractual or private nature. This means that they only affect the partners who sign them. However, what happens with omnilateral agreements or agreements signed by all the partners?

2.- Are omnilateral parasocial agreements enforceable against the company?

We must start from a clear premise: our corporate legislation explicitly establishes that agreements reserved to the company will not be enforceable against it. However, when is a shareholders’ agreement hidden or reserved to the company?

The term “omnilateral” is relevant. It is understood that an extra-statutory agreement signed by several (not all) partners is reserved, not opposable to the company. However, the consideration of the company as a real third party outside the omnilateral shareholder agreement is debatable.

• What is the opinion of the majority doctrine?

The majority doctrine believes that, once signed by all the partners, the company is not alien to the shareholders’ agreement. The company would know, in this case, the intention and will of the partners. Therefore, and in relation to our legislation, not being considered as reserved would allow its enforceability against the company.

• What is the opinion of our legislator?

As previously mentioned, our legislator refers to this issue in a brief manner: it only establishes that those reserved covenants will not be enforceable against the company. There is no further analysis of the parasocial agreements or possible exceptions to this statement.

However, we can predict the opinion that it will have in the future regarding this matter. We do so on the basis of the Draft Bill of the Commercial Code, which, after several amendments, is not yet in force. In it, the legislator makes a much more detailed approach to the figure of shareholders’ agreements. This includes a pronouncement on the enforceability of these, in which it is categorical: no type of shareholders’ agreement will be enforceable against the company.

• What is the opinion of the case law?

The case law is the one that, in the absence of greater clarity by the legislator, has ruled on this matter.

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Legal challenge of Company’s resolutions and its simultaneous correction

Our legislation expressly allows companies to adopt resolutions that leave the previous agreements without effect.

The Supreme Court, from the very beginning, considered these covenants as not enforceable against the company. However, in recent years, the Provincial Courts seem to have begun to accept exceptions.The reasoning carried out by the Provincial Court of Barcelona (AP Barcelona) in 2009 is relevant.

In this judgment, the Barcelona Provincial Court does not directly attribute opposability to these omnilateral extra-statutory agreements. However, it looks for an alternative mechanism to be able to oppose them to the company. The case is as follows: partners signing an omnilateral shareholders’ agreement do not comply with the provisions of the same. Thus, a resolution is adopted at the General Meeting that differs from what is stated in the agreement. The signatory partners in compliance challenge this agreement, opposing the omnilateral shareholders’ agreement to the company. That is to say, they try to annul the agreement made in the Meeting for being contrary to the shareholders’ agreement.

What is the opinion of the AP of Barcelona? Although it determines that the omnilateral shareholders’ agreement is not sufficient by itself to challenge the corporate resolution, it does end up annulling said resolution. It does so by considering the omnilateral parasocial agreement as representative of the corporate interest. Lets remember that the infringement of the corporate interest is one of the grounds for challenging corporate resolutions. Therefore, the resolution that was adopted in violation of the agreement was, in turn, detrimental to the corporate interest. For this reason, the corporate resolution was finally annulled.

However, in 2020 the Supreme Court ruled that corporate resolutions can only be challenged if, in addition to violating the shareholders’ agreement, are subject to a legally established ground for challenge.

3.- Are these agreements enforceable in other countries?

In foreign countries, the opinion on this matter is usually aligned with the provisions of the majority Spanish doctrine.

This is the case for Austrian case law, for example, which considers it mandatory not to separate the will of the company from that of its partners. Therefore, if all have signed a shareholders’ agreement, the company must inevitably be involved in it.

The same happens in Colombia, where both doctrine and jurisprudence agree: a corporate agreement contrary to the omnilateral shareholders’ agreement can be challenged, since the company is not a party to the agreement.

Finally, in the common law area, we have the example of Canada. They have  there the figure of “Unanimous Shareholders Agreements” ( aka “usa”. That is to say, omnilateral parasocial agreements that regulate the relations between the partners. However these usa, are also permitted to  restrict or transfer powers or authority from the administrators to the partners. This takes this type of agreement one step further.

4.- Conclusion

In our country, nowadays, parasocial agreements, even omnilateral, are not enforceable against the company. This implies the impossibility of challenging corporate agreements for the mere fact of breaching such agreements.

However, this does not prevent the existence of mechanisms that, without being properly opposable, do allow the desired outcome to be obtained. We refer to the one described above by the Barcelona Court of Appeals: establishing the corporate interest as an inseparable figure of the omnilateral shareholder agreement.

If this article has been of interest, we also suggest you to read the following article published on our website: The reintegration and its effects in debt refinancing agreements