Klanderbara stämmobeslut - Under vilka omständigheter blir ett felaktigt stämmobeslut gällande?

Sammanfattning: This essay is based on the question under which circumstances an erroneous resolution from the general meeting (hereinafter referred to as “resolution”) shall take effect and thus become enforceable by the board of directors. For the purpose of this essay, erroneous resolutions shall mean such resolutions that may be challenged by the shareholders pursuant to chapter 7 sections 50 and 51 in the Companies Act (hereinafter referred to as “ABL”). These are resolutions that contain an error in violation with ABL, the applicable annual reports legislation or the articles of association. Initially, the prerequisites for a resolution and the board’s duty to enforce a resolution will be examined. It appears as though a resolution is enforceable when the right to commence proceedings is forfeited pursuant to chapter 7 section 51 paragraph 1 ABL. Hence, to determine under which circumstances an erroneous resolution is enforceable one must initially determine for how long an action may be brought against the company. How long a shareholder may bring an action against the company is dependent on the error of the relevant resolution. If there is a minor error an action needs to be submitted within three months from the resolution date, but if the error is essential it should instead be that a certain period of passivity from the affected shareholders can cause the loss of standing. This essay highlights the difficulties in determining what effects different errors shall have. A study on the passivity effect in company law has not previously been undertaken and the essay is an attempt to study how such an examination could be performed. One prerequisite should be that the passive shareholder has been informed of the resolution, and the author’s opinion is that a shift in interest impacts the assessment of the period that needs to pass. Resolutions that contain material errors, as defined in chapter 7 section 51 paragraph 2 ABL, have in preparatory works and legal doctrine been referred to as nullities. The term is also used in contract law and is therein taken to be the strongest degree of invalidity. However, this essay concludes that there are no significant similarities between the effects of nullity in company law and contract law. This essay also highlights the difficulties in using the concept of nullity for the erroneous resolutions that fall under this second paragraph. Shareholders may also expedite the process by their consent when a resolution will be enforceable. A given consent to an error can, in some cases, lead to the loss of standing for the relevant shareholder. Finally, this essay ends with a discussion whether or not a longer limitation period for resolutions under chapter 7 section 51 paragraph 2 would have been preferable to the current vague effects of passivity.