Samtyckes- och förköpsförbehåll : Om möjligheter att frångå dessa vid en överlåtelse samt dess ändamålsenlighet

Sammanfattning: In 2006, the new Swedish Companies Act entered into force, allowing shareholders to include consent and pre-emption clauses in their articles of association. The purpose of the introduction of these was to increase the possibility for shareholders to regulate the circle of owners. However, as a general rule, a share should be freely acquired and transferred, which becomes limited by the transferrestrictions. The ability to regulate the circle of owners is important for small and medium-sized companies, which can be subject to major consequences if the circle of owner’s changes, as these companies are often dependent on being able to control their circle of owners. The new reservations are aimed at before a transfer takes place. The procedure often involves time-consuming and administrative processes, which can have a negative impact on the transaction. One of the essay's questions focuses on this problem and the study aims to account for the possibility of waiving reservations in a transfer process by looking at various alternative procedures and principles that may be relevant in such a matter. This section also draws on some practical insight from interviews with practicing lawyers. The conclusion on the issue has been that it is probably possible to override the rules that follow from the restrictions if all shareholders agree on this. How-ever, the legal situation is unclear, as the principle of the consent of all sharehold-ers is not directly expressed in the text of the law and has not been examined in relation to the consent and pre-emption clauses to derogate from these rules, especially when a rule is clearly surrounded by an invalidity sanction. The second question examined in the paper was to investigate the effectiveness of the consent and pre-emption clause. To answer this question, a comparative analysis of German law has been made. The aim has been to place transfer restrictions in German limited companies in relation to the Swedish reservations. Both weaknesses and strengths of the formulated reservations that we in Sweden have today has been examined. The conclusion in this respect has been that the German one entails greater flexibility and can satisfy the needs of shareholders in a more appropriate manner, while the Swedish ones provide greater legal cer-tainty. The question whether reservations could be more effective is answered with a yes. A possible provision allowing the possibility to waive the rules when all shareholders agree would have met the needs of the market in a more appro-priate way.