Arrangement of joint stock company legal liability provisions in the articles of association

The articles of association of a joint stock company is a contract that has a very important function in the process from the moment of establishment of the company until its termination. It can be considered as the constitution of the company in terms of its function in establishing the partnership, protecting it, promoting it to the outside, regulating its internal and external relations, and determining the rights, powers and responsibilities of the shareholders. However, the scope of the articles of association, which is a contract in its nature, has been narrowed in the eyes of optional regulations with the existence of the principle of mandatory norms regulated in the Turkish Commercial Code. The principle of mandatory norms gives validity to the complementary provisions of the articles of association as regulated in the law, if they are expressly permitted by law. The principle in question, when interpreted only literally, disproportionately limits the freedom of contract guaranteed by the Constitution. However, fundamental rights and freedoms can be limited by law, provided that they comply with the principle of proportionality. Considering both the superiority of freedom of contract over the hierarchy of norms and the legal justification of the article in which the principle of mandatory norms was established, complementary articles of association will be able to find a place in the articles of association while preserving the purpose that the principle of mandatory norms aims to protect. In other words; Complementary articles of association may be regulated in company articles of association to ensure legal stability and certainty, to protect shareholders and to protect other interest groups associated with the company. In this regard, articles of provisions, which deal with situations that directly affect the company's core capital as a result, should be secured by the articles of association and regulations that protect interest groups, especially the legal entity of the company. Additionally, regulations regarding the Capital Markets Board's Corporate Governance Principles Communiqué should be established within the framework of the legal stability and certainty that the principle of mandatory norms aims to provide. In other words; A joint stock company should be able to provide a legal basis for both national and international commercial activities with articles of association that include alternative dispute resolution methods such as arbitration and mediation, stipulate regulations for the protection of human rights, and concretize the duties of the company bodies in detail.