acting in their individual capacity,
considering that the director's actions have
affected them directly, therefore causing
damages during the performance of their
duties to personal interests of the formers.
action, the interests of the corporation are
excluded by means of this new version
of the direct action. Also, any attempt of
trying to seek damages must be pursued
through the derivative action.
The
want to bear the directors liable, according
to article 16 of the Bill Project, for their
actions if they were detrimental or caused
harm to the company.
its authorization needs to be approved by
the majority of the shareholders of the cor-
poration in the form of a general assembly
decision. Whenever no special majority is
established in the company's bylaws, the
default rule for this kind of corporate deci-
sions is 50 percent plus one vote.
Besides the attempt to fix the numerous
practical problems of the current social and
individual actions, the innovative proposal
of the Bill Project is the importation to the
different existing alternatives from the U.S.
legal system, of the well-known derivative
action.
been initiated) to protect those minority
majority approval required to activate the
social action, but still considering that the
directors have damaged the corporation,
thus, filing the lawsuit on its behalf.
The derivative action could only be
filed by a person who was a shareholder
of the corporation at the time the acts or
omissions where executed by the alleged
liable director,
exceptions authorized by law.
not contemplated in the other two actions,
which is that the claim can be used by an
individual shareholder, on behalf of the
corporation, to prevent the detrimental
conduct of the director with the purpose of
avoiding the "occurrence of an imminent
damage to the company."
the minority shareholders' misconduct,
reckless or wrong use of this new legal
instrument, they will be held liable for the
director's legal fees, litigations costs and
any other damages caused to the them or
the corporation if their derivative suit is
frivolous, they use it to holdup the company
or for any other detrimental purposes.
withdrew the Bill Project No. 70 of 2015
so that it could be amended and adjusted.
However, we are expecting that the new
text maintains intact the scope of the
actions we have discussed.
Directors, FIFTH. ED. VOLUME II, 1380 (1998) (quoting
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 95 (1991),
and Hawes v. City of Oakland, 104 U.S. 450, 453 (1881)).
5 BILL PROJECT NO. 70 OF 2015. ARTICLE 32.
which it is aimed to correct the damages directly suffered
by an shareholders, partner or a third party by reason of
the manager's actions, the affected persons may demand
their personal liability pursuant to article 16 of this law,
through an individual action, provided that said damages
do not correspond to those that can be requested through
the derived action.
7 BILL PROJECT NO. 70 OF 2015. ARTICLE 26.
harm suffered by the company as a consequence of the
managers' actions, the company may demand, through
a collective action, their responsibility pursuant to the
provisions of article 16 of this law. In order to initiate the
collective action of responsibility, the authorization of
the general assembly of shareholders or partners shall be
obtained.
action of responsibility has not been initiated, any
associate may petition for the derived action in order
to correct the damages suffered by the company as a
consequence of the managers' actions. In these cases,
the action will be filed by the plaintiff in the name of the
company.
ACTION. The plaintiff must have had the capacity as
associate when the facts or omissions that give rise to the
liability occurred or must have acquired said capacity
subsequently, by operation of the law, (...).
the same action in case of avoiding the occurrence of an
imminent damage to the company.