and Directors in Colombian Corporate Law
action could be defined as the "claim
brought by the shareholder in his or her
own name, which cause of action belongs
to the shareholder in his or her individual
capacity, and that arises from an injury
directly to the shareholder."
system the derivative action general
definition is "the lawsuit brought by one
or more minority shareholders in order to
`enforce a corporate cause of action against
officers, directors, and third parties....'"
is the corporation, which acts and brings
the real defendant is the board of directors
for breaching of their fiduciary duties.
Claims in Colombia
Colombia allows two types of claims for
fiduciary litigation against officers and
directors who have harmed the corporation
with their acts or omissions. These are: (i)
individual action; and (ii) social action.
The
consists of the capacity granted to the
corporation, its shareholders and third
parties, to make the directors liable for
the damages caused by their negligence or
willful misconduct.
This action contains a presumption of
negligence against the directors who have
the burden to prove their innocence if any
breach or abuse of their fiduciary duties,
to the company's bylaws or the law, is
committed.
the provision established to regulate it,
that the action belongs exclusively to the
corporation and must be approved by the
voting of the majority (50 percent plus one
vote) of the shareholders (whether interested
or disinterested). This lack of clarity means
that in cases of conflicts of interest involving
directors who were also shareholders with a
controlling or dominant position, the latest
could block and veto the minority initiative,
since they are not required to abstain voting
the action's approval, thus making the
social action useless in practice for minority
shareholders in closely-held corporations.
Fiduciary Litigation Claims
of actions to pursue the liability of the
officers and directors. The claims proposed
by the Colombian government are: (i)
individual action (ii) social action; and,
(iii) derivative action.
of the department of corporate law for Pinilla,
Gonzalez & Prieto Abogados. His main area of
practice is related to civil and commercial law.
Pinilla, Gonzalez & Prieto Abogados. His main
area of practice is related to business and
commercial law.
Av calle 72 no - 6-30 pisos 9 y 14
Bogota, Colombia
jalzate@pgplegal.com
pgplegal.com
Rodríguez