Rodolfo Fernández Cuellas, director of the Business Law Seminar of the ESADE Business School and corresponding academician of the Royal European Academy of Doctors-Barcelona 1914 (RAED), believes that Spanish legislation should be more guarantee and incorporate mechanisms that are common in other countries of Anglo-Saxon tradition, such as the United Kingdom and the United States, in an article published by the newspaper Expansión on June 7 with the title “Cómo resolver un conflicto con inversor minoritario” (How to resolve a conflict with a minority investor).
Referring to his speech of admission at the RAED, “Las dinámicas mayoría-minoría en las sociedades de capital” (The majority-minority dynamics in the societies of capital), the academician proposes how the law should be reformed to put an end to situations of abuse. So that alternatives to the right of separation are specified in order not to jeopardize the viability of a company.
“The social interest of a company isn’t only its maintenance over time, but also that the rights of minority partners are taken into account, which is crucial in modern commercial law”, he says.
For Fernández Cuellas, the legislator should take into account the establishment of the SMEs in Spain, the current development of start-up or unlisted companies and that companies need alternative mechanisms to bank financing so that when there is an abuse of position of the majority, there are alternatives to the right of separation that the existing mercantile legislation contemplates. “The Spanish law is very guarded, but in the operation of capital companies it is excessively liberal”, says the expert.
The academician believes that Spanish law should contemplate alternative mechanisms to separation and mediation and arbitration systems to resolve conflicts amicably. “What is a real failure is to go to the criminal court, there are many lawyers who do it, even though it is longer and strenuous than the commercial one, we have seen families that have ended up facing each other and that a divorce that only affected the business. It has extended to personal relationships and is also perpetuated between generations”, he concludes.