El pacto parasocial omnilateral como pacto social

Abstract

Exposure and critique treatment of the Supreme Court’s doctrine on the so-called omnilateral shareholder agreements. The omnilateral shareholder agreement, being agreed unanimously by all the partners of the company, does not respond to the general criteria of doctrinal characterization of shareholder agreements, so it does not seem correct to treat it according to such general criteria. For this reason, it may be appropriate to distinguish between typical shareholder agreements (those related to the organization of the corporate relationship and the rights and obligations of the partners as such) and the atypical ones. If the former —typical— are signed by all the partners unanimously, the shareholder agreement is a real and effective social agreement as long as it does not go beyond the limits of art. 1255 CC, even if they modify or exclude non-fundamental imperative rules (or public order) of the specific regime of the social form to which they are related. Under such conditions, the omnilateral agreement can be qualified as a statutory norm in a substantive sense within corporate companies that, as such, would be valid and effective between the company and all its partners under the protection of the essential content of the fundamental right of association ex art. 22 CE, as long as the omnilateral pact continues to be so. Under such constitutional protection, the omnilateral agreement fulfills the function of allowing the creation and organization of atypical capital companies in the internal sphere or relative to the relations between the company and its partners, allowing the maximum personalization of the capital company. Being a statutory norm in a substantive sense, the omnilateral agreement is outside the rule of unenforceability ex art. 29 LSC and should allow the estimation or dismissal of actions to challenge corporate resolutions to be founded on the basis of the case related to the infringement of the corporate bylaws ex art. 204.1 LSC.