The Effectiveness Of Anti-takeover Clauses In The Articles Of Association Of Listed Companies

At present,there is no unified standard and understanding of mandatory norms and arbitrary norms in the company law.Therefore,in order to judge whether the anti-takeover provisions violate the mandatory norms of the law and whether they break through the boundaries of the autonomy of the articles of association,it is necessary to analyze the special situation of amending the articles of association of the listed company to set the anti-takeover clause.As we all know,"Haley biological case" is a judicial judgment on the effectiveness of the anti-takeover clause.And this case makes it clear that the clause of limiting the right of nomination for director candidates by shareholders is invalid.However,there are various types of the clause of limiting the right of nomination for director candidates by shareholders.So,it does not meet the needs of theory and practice that considering that the clause of limiting the right of nomination for director candidates by shareholders is invalid.Therefore,this paper starts from the analysis of the "Haley biological case".Then we define the connotation and boundary of the right of nomination for director candidates by shareholders.And in accordance with the principles of not violating the mandatory provisions of laws,not harming the interests of shareholders and not harming the interests of the company,we determine the effectiveness of different types of theclause of limiting the right of nomination for director candidates by shareholders.The first chapter is to sort out the "Haley biological case".After reviewing the controversial focus of the case and the judicial determination,it is concluded that the clause of limiting the right of nomination for director candidates by shareholders cannot be simply determined to be invalid.At the same time,we found that in the relevant cases of the right of nomination for director candidates by,there are still great disputes on the specific concept of the right of nomination for director candidates and the subject,content and boundary of right exercise in the judicial field.So,it is necessary to clarify the relevant content of the right of nomination for director candidates in order to judge the effectiveness of the clause of limiting the right of nomination for director candidates by shareholders.Chapter two is to definite the clause of limiting the right of nomination for director candidates by shareholders.First of all,on the basis of the comparison of the right of nomination for director candidates by shareholders and the voting right of shareholders and the proposal right of shareholders,the concept of the right of nomination for director candidates by shareholders is clarified.At the same time,it explains the reason that under the Chinese legal environment,the subject of the right of nomination for director candidates is the shareholders.Then we clarify the content of the right of nomination for director candidates by shareholders and the relevant provisions of Chinese law.At the last,we summarize the types of the clause of limiting the right of nomination for director candidates by shareholders.There are the clause limiting the holding time of nominated shareholders,the clause limiting the shareholding of nominated shareholders,the clause limiting the number of candidates for director nominated by shareholders,the clause of restricting on the qualifications of nominated directors and the clause of limiting the procedure for the nomination of directors.Chapter three clarifies the basic principles of judging the effectiveness of anti-takeover clauses.First,the principle of mandatory provisions of law shall not be violated.The amendment of the articles of association of a listed company shall not violate the basic principles of the company law,such as the principle of the sameshare and the same right,the majority of capital,etc.And the articles of association shall be invalid if it violates the mandatory norms of principle.Second,the principle of interests of shareholders shall not be harmed.It mainly includes the principle of equality of shareholders,the principle of not improperly restricting the ownership of shares,and the protection of the legitimate rights and interests of minority shareholders.Third,the principle of interests of the company shall not be harmed.In order to prevent the anti-takeover measures taken by the company's management,it is necessary to take the interests of the company and minority shareholders as the basis for judging whether the anti-takeover provisions in the articles of association are effective.Chapter four to judge the effectiveness of the clause of limiting the right of nomination for director candidates by shareholders based on Three types of standards as defined in chapter three.The conclusion is as follows: the anti-takeover that takes a stake of more than 3 percent is invalid in essence;the anti-takeover clause that restricts the nomination right of shareholders' candidates for director with the duration is,in essence,the deprivation of the nomination right of some shareholders' candidates for director,which is invalid;the articles of association of the company shall not attach any conditions to the nomination right of directors candidates of shareholders,otherwise it shall be invalid;the company's articles of association stipulates that the positive conditions necessary for directors to hold office within a reasonable range are valid,but the restrictive provisions on the selection process of directors shall be deemed invalid.Chapter five is the conclusion,which is my own thoughts on judging the effectiveness of anti-takeover clauses.And I suggest establishing the system of shareholders' right of nomination.