Newsletter-21

83 COMMERCIAL LAW transferor. Notwithstanding this, according to the dominant view un- der the doctrine, which is different from the Preamble, in the case of non-inclusion of these provisions completely, or partially, under the transfer agreement, the transfer agreement shall be deemed invalid. Approval of the General Assembly Unless specified otherwise under the articles of association, for the transfer of shares, approval of the shareholders’ general assembly is mandatory. Since it is explicitly stated under the TC that the share transfer shall become valid with this approval, approval is a condition for validity. The Swiss Code of Obligations regulates the timing of transfer of rights through a separate article, and also sets forth that the transfer shall be valid only when approved by the general assem- bly, if necessary. In such a case, it is clear that the transferor, but not the transferee, must attend the general assembly meeting wherein the transfer will be approved. This is because the owner of the subject shares is the transferor shareholder until the approval or rejection deci- sion of the general assembly is made. Such approval is among the non-transferable rights of the general assembly and cannot be transferred to other bodies or persons, such as the board of managers. Approval of the share transfer is not one of the important decisions in terms of Article 621 of the TCC. Therefore, the general assembly shall make the decision regarding the approval of the share transfer with the simple majority of the votes represented in the meeting within the scope of ordinary decision taking procedures regulated under Article 620 of the TCC. As per the general provisions, it is possible to stipulate higher quora under the articles of associations. Provisions under the Articles of Association Under the articles of association, it is possible to remove the ap- proval requirement for the share transfer, as well as to prohibit the transfer of shares, or to soften or aggravate the transfer conditions. Ap- proval not being mandatory and the possibility to prohibit or restrict the transfer indicate that the TCC leaves the share transfer order to