1. Independent Audit Mechanism In Consideration Of 6102 Numbered Turkish Commercial and Abolished 6762 Numbered Commerical Code
The “majority will” constitutes an essential component in administration of Joint Stock Corporations. In other words, the control of Joint Stock Corporatins are in major shareholder’s power. In practice, that fact can bring minority shareholder’s efficiency down and also it can cause some problems regarding to the conflict of interest between minor and major shareholders.
For this reason, it is a solid requirement to ensure that minority shareholders can get detailed information about the administration and financial activites of the corporation. By this way, the rights arising from share ownership might be used more deliberative and efficient by the shareholders. Indeed, the abolished 6762 Numbered Code was including some protective provisions for the shareholders, in complience with the principles of equality, accountability, transparency.
In essence, 6102 Numbered Turkish Commercial Code aims protecting the shareholder’s benefits, too. According to that aim, the lawmaker has brought some new specific provisions and legislations in line with the principles stated above.
Without a doubt, one of the most functional one of these new legal arrangements is “Independent Audit Mechanism”. Under favour of “Independent Audit Mechanism”, it has become easier for the minority shareholders(-not limited with only minority shareholders) to get and/or follow up their expected utility According to the Article 437 of 6102 Numbered Turkish Commercial Code, the shareholders have right to information and evaluation. Yet, “Independent Audit Mechanism” can be considered as an inevitable consequence of the Article 437.
In 6102 Numbered Turkisc Commercial Code, Independent Audit Mechanism has ensured by the Article 438: The Right To Request The Appointment Of An Independent Auditor. According to that Article; “Every shareholder has the right to request the appointment of an independent auditor whenever it necessitates exercising its shareholders’ rights in the general assembly meeting, although it is not included in the agenda, and provided that the information or evaluation right has already been exercised.”
Hereby in 6102 Numbered Turkish Commercial Code, “The Right To Request The Appointment Of An Independent Auditor” has been arrenged as a shareholder right as well as minority right, distinct from Abolished 6172 Numbered Code.
2. The Exercise of “The Right To Request The Appointment Of An Independent Auditor”
Even if any shareholder(-including but not limited with minority shareholders) has “The Right To Request The Appointment Of An Independent Auditor” without any exceptions, the lawmaker also aims to prevent the corporations from abuse of right. For this reason, the exercise of this right has been stipulated to existence of some requirements&conditions, by the lawmaker. First; the information or evaluation right which has stated at Article 437, should have already been exercised. Here, it will be beneficial to highlight the point that; the shareholder who requested “The Appointment Of An Independent Auditor” is not obliged to be same person with the shareholder who has already exercised the Information or Evaluation Right”, as long as concerning to same subjects/matters. Second; the subject of the independent audit request should be “spesific and definite“ as scope and content. And as a last requirement; “requesting the Appointment of an independent auditor” should be “essential” for enjeyoment of the rights arising from share ownership.
In case of existence of all requirements, the shareholders request can request “ the appointment of an Independent Auditor” in general assembly meeting, although it is not included in the meeting agenda.
2.1-)If such request is approved by the General Assembly;
If such request is approved by the General Assembly; either corporation itself or the shareholder who made such request can apply to national commercial courts who has jurisdiction in the area of the headquarters of the Corporation, in 30 days for an independent auditor appointment. It should also be emphasised that, although the shareholders can make independent audit requests even if it is not scheduled on the General Assembly agenda, it doesn’t oblige the General Assembly to approve the request. General Assembly has authority to refuse the request.
2.2-)If such request is rejected by the General Assembly;
If such request is rejected by the General Assembly; the minority shareholders, or shareholders whose total nominal value of shares are at least one million TL may request the appointment of an independent auditor from the national commercial court who has jurisdiction in the area of the headquarters of the Corporation, in 3 months.
In case the claims are considerable and the application petition clearly refers to the damages incurred by the incorporators or bodies of Corporation, the court approves the request and appoint an independent auditor. The court doesn’t need solid evidences to appoint an auditor. Yet, submitting considerable and persuasive claims might be sufficent. As a result, General Assembly’s rejection about the audit request, constitutes a minority right.
The courts decision about such application is final judgement order and the applicant shareholders don’t have right to appeal against court’s decision.
