Introduction
Last July, the Spanish Voluntary Jurisdiction Act 15/2015, of 2nd July, came into force (hereinafter “the Voluntary Jurisdiction Act” or “Act”). The Act applies to certain situations where the intervention of public bodies is required, although no controversy exists. Specifically, the Act provides for voluntary jurisdiction proceedings in matters concerning persons, family, inheritance law, law of obligations, property rights, voluntary auction files, commercial matters and conciliation. In this article we will briefly analyse Title VIII of the Act concerning voluntary jurisdiction proceedings regarding commercial matters.
Title VIII on voluntary jurisdiction proceedings regarding commercial matters
With regards to commercial matters, the Act provides for eight different proceedings:
I. Exhibition of books from the persons legally obliged to keep the general accounts.- When appropriate, it is possible to request the display of books, documents and accounting support by the persons legally obliged to keep them. The Commercial Judge will authorise the scope and content of said exhibition, which will take place before the clerk.
II. Call for both ordinary and extraordinary general meetings.– The call for both ordinary and extraordinary general meetings can also be requested from Commercial Courts. Once the request is admitted, the clerk will hold a hearing and, if he/she agrees with the call requested, he/she will call for the general meeting.
III. Appointment and removal of a liquidator, auditor or controller.- It is possible to request the appointment or revocation of a liquidator, auditor or controller of an entity before the Commercial Courts. In these cases, the clerk will issue a decision. Additionally, a testimony of such decision will be sent to the Commercial Registry for its registration.
IV. Share capital reduction and redemption or disposal of shares.- Also, where provided by law, it is possible to request from the clerk a share capital reduction or redemption or sale of the shares of a company.
V. Judicial dissolution of companies.-The managing directors, partners and anyone interested may call for the judicial dissolution of the company before the Commercial Courts, where appropriate under the Law. In these cases, it is for the judge to reach a decision.
VI. Convening of the general assembly of bondholders.- In this case, if applicable, the clerk will issue a decree –against which there will be no appeal- convening the general meeting of bondholders for the establishment of the Syndicate of Bondholders.
VII. Robbery, theft, loss or destruction of asset title or representation of parts of partner.– Legitimate holders of documents of title who have been deprived of them, and those who have suffered their destruction or loss may initiate voluntary jurisdiction proceedings. After the appropriate formalities, the clerk will issue a decree in which it will decide on whether to prohibit the negotiation or transfer of the documents of title, the suspension of the payment of capital, interests or dividends, or the deposit of the goods, as appropriate.
VIII. Appointment of an expert in insurance contracts.- When an agreement among the experts appointed by the insurer and the insured cannot be reached in order to determine the damages and the appointment of a third party cannot be agreed upon, it is possible to request the appointment of another expert in order to issue the opinion. If the parties do not agree, the clerk will appoint the expert.
Conclusion
Ultimately, through the Voluntary Jurisdiction Act, court clerks, notaries, property and mercantile registrars are granted powers with respect to certain matters where the judicial authority is not necessary. Previous to this Law, these matters were allocated to Judges. Notwithstanding the above, note that in all voluntary proceedings regarding commercial matters, the intervention of a lawyer and a court agent (procurador) is required.
Carla Villavicencio
Vilá Abogados
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23rd September 2015
