PhD student: Mr C.W. Rebel

Promotors: E.C.H.J. Lokin, Prof G.J.C. Rensen

Duration: 1/12/2022 - 30/11/2026

Abstract:

Corporate relations are shaped by law, custom and, in particular, by articles of association, regulations, resolutions and the principle of reasonableness and fairness pursuant to Article 2:8 of the Dutch Civil Code; together, they form the internal structure and division of powers within the company. Within the limits of the law, parties enjoy freedom to shape their relationships in this respect. The law allows entrepreneurs to shape their company form as they see fit (to facilitate), but imposes (mandatory) requirements to protect the interests of other parties involved in the company (to regulate). The past two decades have been marked by an extensive legislative operation, concerning the modernisation of company law. In this, further flexibilisation of corporate relationships and a balanced power and accountability structure stand side by side as key principles. In legal practice, relationships within the company are largely shaped along the lines of the law of obligations, by way of contract - between founders, shareholders, directors, the company or third parties. Individual shareholder(s) and the company enter into a contractual legal relationship with each other under a variety of circumstances, with the aim of ordering their mutual relationship and the checks and balances governing that relationship outside the statute book. Contractual ordering of the legal relationship between the company and individual shareholder(s) fit within the flexibilisation trend noted above within company law. According to Timmerman, contractual design of corporate relationships "exposes the limits of what the corporate structure entails. This study focuses on contractual legal relationships between individual shareholders and the company in open and closed corporate relationships. It concerns a discussion of the foundations of Dutch company law, addressing the qualification of the NV/BV as an 'institutional part of the legal order', the meaning and scope of the mandatory law principle in private incorporation and the relationship between company law the (regulating) law of obligations. This formulates an assessment framework, against which contractual legal relationships between individual shareholders and the company, inventoried from legal practice, are assessed. Finally, the regulatory framework within which private incorporation takes place is discussed.