Resolutions adopted by the general assembly of a joint-stock company are binding not only upon the shareholders but also upon the board of directors and all corporate officers. Therefore, the legislator has granted the shareholders and other interested parties the right to bring legal action for annulment of the general assembly resolutions under the Turkish Commercial Code No. 6102 (“TCC”). Articles 445 and 446 of the TCC set out in detail the circumstances in which an annulment action may be brought, the statutory time limits, and in particular, who may bring such an action. However, the most debated issue in practice is whether a shareholder is required to have dissented to initiate such proceedings, and if so, how and when this dissent must be lodged.
This article will focus on the legal nature of dissent and explain how and when they should be submitted.
1. Legal Nature of the Dissents
Under Article 446 of the TCC, one of the groups entitled to file an annulment action consists of shareholders who were present at the general assembly meeting, voted against the resolution, and had their dissent recorded in the minutes. This rule establishes a direct link between a negative vote and dissent; it shows that a negative vote alone is not sufficient, and that dissent must also be clearly reflected in the meeting minutes. Consistently with this approach, the Court of Cassation has long held that a dissenting vote, on its own, does not grant the right to file an annulment action. The dissent must be recorded after the voting takes place, as a condition for bringing the action.
The basis for requiring these two conditions together is both the wording of the law and the prohibition of contradictory behavior. A shareholder who voted in favor of a resolution cannot later seek its annulment, and likewise, a shareholder who cannot prove that they cast a dissenting vote is not entitled to bring an annulment action. This rule aims to protect the will of the general assembly and to prevent a shareholder who did not oppose the resolution at the time of voting from acting inconsistently at a later stage.
Accordingly, the dissent is not a legal obligation or a contractual duty, but rather a procedural burden imposed on the shareholder in order to exercise the right to file an annulment action. By having their dissent recorded in the minutes, a shareholder who voted against a resolution preserves this right; otherwise, the loss of the right results from the shareholder’s own failure to fulfill this burden. The legislator requires a clear and identifiable expression of dissent to ensure order during the meeting and to facilitate establishment of evidence in disputes that may arise afterward.
The fulfillment of this procedural burden has been expressly characterized as a “special condition for filing an action” in the established case-law of the Court of Cassation. Accordingly, if no statement of dissent exists, courts dismiss the lawsuit without examining its merits, on the grounds of lack of condition for the lawsuit. This approach shows that the statement of dissent constitutes the core procedural requirement for filing an annulment lawsuit; and its existence and timing aren’t seen as a mere formality, but as a prerequisite for the court to hear the case at all.
2. How a Dissent Should Be Recorded
Under Article 422 of the Turkish Commercial Code, it is mandatory for the minutes of general assembly meetings to include only the number of affirmative and negative votes cast; it is not legally required to record the names of the shareholders who voted. Although this technical rule reflects the practical needs of joint-stock companies with large and dispersed shareholder structures, it also makes it difficult to determine which shareholder cast a dissenting vote. Therefore, it is essential that shareholders wishing to file an action for annulment have their negative votes recorded in the minutes.
On the other hand, especially in companies with a small number of shareholders, minutes sometimes list the votes by name, clearly showing which shareholder voted against a resolution. Therefore, some scholars argue that in such cases a separate dissent should not be required, as the purpose of the law—identifying the dissenting shareholder—is already fulfilled. For a period, the Court of Cassation also adopted a similar view in certain decisions, holding that if the dissenting shareholder was identified by name in the minutes, the lawsuit could be examined on the merits even without a separate dissent statement. However, this doctrinal debate was largely resolved by the Plenary Assembly of the Court of Cassation in its decision dated 17 November 2022 (E. 2020/662, K. 2022/1551). The Court clearly stated that a dissent constitutes a special condition for filing an action, that merely showing the dissenting shareholder’s name in the minutes does not remove this requirement, and that the shareholder must record their dissent after casting a negative vote.
Therefore, within the framework of current case law, the argument that ‘the number of votes is sufficient’ or ‘there is no need for a dissenting opinion if the name is written’ is no longer valid. Today, in practice, every shareholder who casts a negative vote must also have their dissent recorded in the minutes.
On the other hand, a statement of dissent does not need to include any reasoning. It is sufficient for the shareholder to simply declare that they oppose the resolution; any reasons written in the dissent are not binding in the subsequent annulment lawsuit. Therefore, the essential function of the dissent is nothing beyond recording that the shareholder did not agree with the resolution.
3. Timing of the Dissent
The timing of the dissent is just as important as its existence. According to the consistent case-law of the Court of Cassation, the dissent must be recorded after the resolution has been adopted; any dissent declared before the vote—referred to as “preconceived dissent”—is considered strictly invalid. (11th Civil Chamber, 19.06.2019, 2018/2156 E., 2019/4580 K.)
This approach is based on the idea that a shareholder can express a definitive intention only after the resolution has actually been adopted. Any statements made before the vote are considered to be of a deliberative nature and cannot produce any legal effect. Indeed, the Court of Cassation has explicitly stated in many of its decisions that criticisms, questions or wishes expressed during negotiations cannot be considered dissenting opinions. (11th Civil Chamber, 19.11.2024, 2023/6824 E., 2024/8023 K.)
In this context, the most appropriate approach is for the shareholder to state their dissent immediately after each agenda item is voted on and to request that it be recorded in the minutes. If the shareholder has already expressed dissent after each individual vote, there is no need to give a separate, collective dissent at the end of the meeting.
However, a significant practical issue may arise: the presiding committee may refuse to record the dissent or may simply omit it from the minutes. In such cases, the burden of proof rests entirely on the shareholder. The most reliable method is to submit a written dissent to the Presiding committee immediately after the vote and to establish ways to prove in the future that it was submitted but not recorded in the minutes (witness statements, meeting recordings, notarial notice, etc.). If the minutes are not shared or are later altered, proving the dissent becomes more difficult. Therefore, representatives are strongly advised to obtain a copy of the minutes at the end of the meeting.
Consequently, while dissenting is one of the essential conditions for filing an annulment action, the current approach of the Court of Cassation interprets this requirement in a very strict manner. Casting a negative vote alone is not considered sufficient; the dissent must be expressly recorded in the minutes after the resolution has been adopted. Hence, shareholders should be careful not to overlook this detail when seeking to preserve their rights during the meeting. As long as the procedural rules are followed closely, the mechanism provides an effective safeguard for shareholder rights within corporate law practice.