Contactar Esade

Derecho Mercantil II (GED70254)

General information

Type:

OB

Curs:

3

Period:

S semester

ECTS Credits:

4 ECTS

Teaching Staff:

Group Teacher Department Language
Sec: A Javier Fontcuberta Llanes Derecho ESP
Sec: A Miguel Trías Sagnier Derecho ESP

Group Teacher Department Language
Sec: B Javier Fontcuberta Llanes Derecho ESP
Sec: B Miguel Trías Sagnier Derecho ESP

Workload distribution

Workload distribution:
- Lectures: 34.5 hours, 33% of total credits
- Guided activities: 35 hours, 33.5% of the credits:
* Participatory sessions: 10.5 hours
* Preparation of assignments: 12 hours
* Preparation of case studies: 12.5 hours
- Independent study: 35 hours, 33.5% of total credits.

COURSE CONTRIBUTION TO PROGRAM

This course forms part of the central core of the training required for all lawyers within the framework of Commercial Law. It covers materials that all students in the Law School, even those who use the information in areas outside the legal field, should be familiar with and handle with ease.

As regards values, we will examine how the structures and institutions addressed represent the core business structure and the foundations on which financial markets are based. Throughout the course we will reflect on ethical principles on which these institutions are founded: the principles of good faith, loyalty, trust, and the ongoing relation between exchange guarantees and free will are principles which will arise in our analysis of the structures, legal solutions and their interpretation.

Course Learning Objectives

Upon completing this course, students should be able to:
- Understand how commercial companies work and differentiate between different types of companies, choosing the most suitable statutory options.

Competences

11. Tenacity, persistence, constancy
8. Quality orientation and achievement
19. Teamwork and collaboration

Relation between Activities and Competences

11 8 19
Case studies, group work, debates and final exam      

CONTENT

1. CONTENT

MERCANTILE COMPANIES
Objective: learn about different types of companies, in particular, public limited and limited liability companies, both in terms of their creation and organisation as well as their structural modification.
Content: Mercantile companies. Partnerships. Public limited company: Concept, foundation, capital, governing bodies, annual accounts, statutory modifications, dissolution.

2. COMMERCIAL COMPANIES. PARTNERSHIPS.

TOPIC 1. COMMERCIAL COMPANIES I
Origin and evolution. The formation of company types up to their codification. 19th century codification. Evolution of the codification up to the present day and trends in the formation of new types of company. Economic importance of the social entrepreneur. Concept of the commercial company. Civil and commercial companies. The choice of the type of company. Mercantile company due to the object or the structure. The use of commercial types for non-commercial purposes.

TOPIC 2. COMMERCIAL COMPANIES II
The founding of companies. The core business and its elements: doctrinal orientations regarding the characterisation of the core business; Spanish law. Capacity and consent. Object: different meanings (object as an activity to be carried out; object as a contribution: the contribution and its adaptation to the company type). Cause. Structure. Effects of the foundation. The legal capacity: levels of subjectification in social entities. Internal legal relations: partner-society relation. Administration and representation: social bodies. External legal relations: assets and responsibility. Registered office and nationality of companies. Foreign companies in Spain. Types of commercial company. Legal types and atypical companies. Partnerships and capitalist societies. The joint venture contract.

TOPIC 3. PARTNERSHIPS
The collective company: concept, characters and importance. The foundation. Internal legal relations: statute of the collective partner. Organisation: management and social agreements. Property regime: the partners' participation and the obligation to contribute. Particularities of the industrial partner. External legal relations: representation. Responsibility through social debt. The simple limited partnership: concept, characteristics and importance. The foundation. Types of partner and the characteristics for each type. Internal legal relations: statute of the limited partner. Organisation: management and social agreements. Property regime: the partners' participation and the obligation to contribute. External legal relations: representation. Responsibility through social debt. Dissolution and liquidation of partnerships.

3. CAPITAL COMPANIES (I). THE PUBLIC LIMITED COMPANY.

TOPIC 4. INTRODUCTION
Concept of Public Limited Companies and their regulation. Public Limited Company: Origin and historical evolution. Economic and social significance in the market system. Its diverse economic function: publicly and privately-held companies. Spanish Law: background and prevailing regulations. Concept and characteritics of the Public Limited Company. Capitalist society. Incorporation of the status of partner to a negotiable value: the share. Limitation of liability: 'piercing the corporate veil' doctrine. Legal status and corporate organisation. Mercantile due to structure.

TOPIC 5. FOUNDATION
Types of foundation. Simultaneous foundation: formal requirements, public deed and registration. The foundation of the single shareholder company. Successive foundation: constitutional process. Public deed and social statutes: their contents. Advantages of founders and promoters. Proposed company: regime of the obligations assumed before registration. De facto corporation. Defects of the foundation. The annulment of the company.

TOPIC 6. SHARE CAPITAL AND SHARES. OBLIGATIONS.
The concept of share capital. Capital and property. The main guiding principles for capital. The debate over the guarantee function of capital. Subscription and payment. Contributions made by the partners: cash and non-cash. The share as part of the capital. The principle of equivalence between nominal values and contributions. The shareholders' obligations: contributions, payments, issues above par and ancillary obligations. The share as a set of rights. Shareholders' rights: political rights (vote, information, contestation) and economic rights (profit sharing, liquidating distributions). The right to preferential subscription. Other rights. Ordinary and preference shares. Non-voting shares. Redeemable shares. The defaulting shareholder. The share as a negotiable value. Representation through and certificates and book entries. Formal requirements for certificates: nominative and bearer shares. Provisional share certificates. Transfer of shares. Limitations on free transfer. Constitution of security interests over shares: joint ownership, lien and beneficial ownership of shares. Insider trading: original and derivative acquisition, financial aid. Reciprocal shareholdings. Obligations: Concept and types. Convertible bonds. Issue. Bondholders' union. Amortisation.

TOPIC 7. MODIFICATION OF COMPANY STATUTES. DISSOLUTION OF PARTNERSHIPS.
Doctrinal approach and legal treatment. Rules to protect shareholders: general and specific requirements (imposition of new obligations, modifications detrimental to one share type). Special cases: restrictions on free transfer and modifications of the business objectives. Increase of share capital: general requirements, proceedings and forms. Delegation to the administrators and authorised capital. Types of capital increase in accordance with the exchange value: new contributions; reserves; credit compensation; conversion of bonds into shares. The right to preferential subscription and its exclusion. Reduction of share capital: general requirements, proceedings and forms. Creditor guarantee. Different categories, depending on their economic function: return of contributions and cancellation of called-up share capital; constitution or increase in reserves; compensation for losses (the accordion operation); the so-called reduction to be charged to reserves. Dissolution of partnerships. Dissolution due to not distributing dividends.

TOPIC 8. GOVERNING BODIES IN PUBLIC LIMITED COMPANIES I: THE GENERAL ASSEMBLY.
The bodies of the Public Limited Company. Organisational models of public limited companies: evolution and current trends. The position of the bodies and their relations under Spanish Law. The modern trends of Corporate Governance. The Unified Code on Good Corporate Governance. The advertising of corporate governance. The General Assembly of Shareholders. Meetings in privately held companies. Meetings in public companies. The problems of delegation and absenteeism. Different categories of shareholders: controlling, institutional and individual. Competences of the Assembly. Types of assembly: ordinary and extraordinary, general and special. Call for General Assmbly: power and obligation to call; requirements; legal call; the universal assembly. Constitution: right to attend; representation; quorums.Holding, right to information; deliberation; voting and voting pacts (share syndication: its advertising in listed companies), formation of majorities and reaching of agreements. Regulations of the Assembly. The minutes of the assembly and their approval. Contestation of social agreements. Causes of contestation. Legitimation, expiry and proceedings.

TOPIC 9. GOVERNING BODIES IN PUBLIC LIMITED COMPANIES II: THE ADMINISTRATORS
General characterisation and forms of organisation. Function and competences of the administrators: management and representation. The sphere of representation: actions unrelated to the social object. Legal nature of the administration's relation. Capacity and aptitude to be an administrator. Prohibitions and incompatibilities. Nomination and duration of the position. The dismissal of administrators and the causes. Compensation. Administrators' duties and conflicts of interest. Regime of responsibility and its demands. The Board of Directors as a governing body. Nomination of board members: proportional representation and co-opting system Internal functioning, positions and delegation of powers. CEOs and executive committees. Board Regulations. Contestation of agreements. The Board of Directors in public companies. The modern trend for them to become supervisory bodies.

TOPIC 10. ANNUAL ACCOUNTS AND THEIR INSPECTION
Structure of annual accounts. The balance. The profit and loss account. The report. The management report. Preparation of the annual accounts. Preparation of the abridged annual accounts. Consolidated accounts. Inspection: auditing of accounts. General problems and evolution of comparative law. Spanish regime: obligatory nature. Object of the audit and contents of the report. The auditors: their independence, nomination, revocation and responsibility. Approval of the annual accounts: meaning of the approval and treatment in comparative law. Advertising regime: filing with the Companies Register. Effects of non-compliance with the obligation to file. The application of the accounting profit or loss. Distribution of dividends. Legal, statutory and voluntary reserves. Interim dividends.

TOPIC 11. DISSOLUTION AND LIQUIDATION OF THE COMPANY
Concept and causes of dissolution. Proceedings. Effects. Responsibility of the administrators with regard to the dissolution. Dissolution and insolvency proceedings. The liquidation of the company. The liquidators. Liquidation operations. Termination of the public limited company.

Relation between Activities and Contents

1 2 3
Case studies, group work, debates and final exam      

Methodology

The course methodology is based on:
a) Lectures on the majority of the topics.
b) The study of a selected number of topics through individual study, group work and class discussions.
c) The completion of practical case studies linked to the course topics.

Consequently, the work to be undertaken by students includes:
a) The study of the topics taught in conjunction with one of the recommended textbooks.
b) The completion of the group work assignments according to the method described in the section 'Group work'.
c) The completion of practical case studies.
Normally, these case studies will have to be completed but not submitted. The submission of a number of case studies will be requested and prior notice will be given for these. We will devote a session to each practical case study. At the beginning of these sessions there may be a set writing task. All written responses to questions or case studies that are submitted will be assessed. Oral contribution in the sessions devoted to the completion of the case studies may also be assessed.

Group work
Faculty will organise students into groups of two to complete a writing task (5 to 10 typed A4 pages in length) that offers an argued response to the questionnaire handed out for each assignment. The written assignment should be based on the recommended reading as well as the views and debates generated by each group. The pair will choose a spokesperson for each assignment, and he/she will take the lead in completing the written assignment. However, both have to debate the content of the task and will have to sign each paper. There will be a different spokesperson for each of the group work assignments so that each student will act as spokesperson once.

The recommended methodology for group work is as follows:

1. The group members divide the readings between them, bearing in mind that they must have both read the section of the textbook corresponding to the topic being studied.
2. A group meeting is held to discuss members' responses to the questionnaire with regard to the completed reading. During the meeting the spokesperson will take notes to prepare the draft of the writing task.
3. The spokesperson writes a draft of the assignment and gives it to the other group member.
4. The group meets again to revise the draft and the spokesperson completes the final draft.

During the presentation session some students (whether spokespersons or not) will be asked to present their conclusions on one or a number of the points addressed in the questionnaire.

Group work assessment:

The mark for the group work assignment will be shared by both group members; however, that mark will be computed twice for the spokesperson. In so doing, the grade will be calculated twice, so that at the end of the course each person will have three marks for the assignments. Assessment of the assignments will be done using a shared number of marks distributed in accordance with the effective contributions made by the group members.

Those asked to make a spoken contribution will be assessed. Failing to participate without due justification will represent a mark of zero for that assignment.

ASSESSMENT

ASSESSMENT BREAKDOWN

Description %
Case studies, group work, debates and final exam 100

Assessment criteria

The assessment in this course aims to foster students' ongoing work and the progressive consolidation of the material taught.

There are three elements to this assessment:
a) Tests on the case studies and the submitted case studies.
b) Teamwork and contributions to class discussions on the topics addressed in assignments.
c) The final exam in January.

The final mark will be calculated as follows:.
A) If the final exam grade is less than 45 (out of 100), the final mark for the course will be that of the final exam.
B) If the final exam mark is over 60, the final mark for the course will be whichever is highest:
B.1. The final exam mark or
B.2 The final exam mark x 0.5 + the average mark of "a" and "b" x 0.5
C) If the final exam mark is between a 45 and 60, the final mark for the course will be calculated as follows: the final exam mark x 0.5 + the average mark for "a" and "b" x 0.5.

Students who do not:
1. Pass the course in the FIRST SITTING due to not attending class, not completing the assignments or copying the latter, will not be able to RE-SIT the final exam and will therefore have to re-take the course and complete all the assignments indicated by faculty.
2. Have the level of competencies demanded may move on to the next year of the programme but will not be able to complete the final degree project until achieving the level of competencies demanded for the programme.

Bibliography

Short bibliography:

Broseta Pont, Manuel: Manual de Derecho Mercantil. Ed. Tecnos, Barcelona, 2015.
Sánchez Calero, Fernando: Instituciones de Derecho Mercantil. Ed. McGraw Hill, Madrid, 2015, 2 Volumes.
Uría, Rodrigo: Derecho Mercantil. Marcial Pons Ed., Madrid, 2015.
Vicent Chuliá, Francisco: Introducción al Derecho Mercantil. Tirant lo Blanch, Valencia, 2015.

Additional bibliography and material:
Uría, Rodrigo; Menéndez, Aurelio: Curso de Derecho Mercantil. Ed. Civitas, Madrid, 2005, 2 Volumes.
Uría, Rodrigo; Menéndez, Aurelio: Comentario al régimen legal de las sociedades mercantiles. Ed. Civitas, Madrid, 1999, several volumes.
Rojo Fernández-Río, Ángel; Beltrán, Emilio: Comentario de la Ley de Sociedades de Capital. Ed. Civitas, Madrid, 2011.

Insolvency law:

Alonso Ureba; García Villaverde; Pulgar Ezquerra, J. (dir.): Derecho concursal. Estudio sistemático de la Ley 22/2003 y de la Ley 8/2003 para la Reforma Concursal. Ed. Dilex, Madrid, 2003.
Bercovitz, R. (coord.): Comentarios a la Ley Concursal. Tecnos, Madrid, 2004.
García Cruces; López Sánchez (dir.) La reforma de la Ley Concursal: una primera lectura del Real Decreto-Ley 3/2009. Aranzadi, Pamplona, 2009.
Peinado; Valenzuela (coord.); Jiménez Sánchez (foreword): Estudios de Derecho concursal. Marcial Pons, Madrid, 2007.
Rojo; Beltran (dir.) Comentario a la Ley Concursal. Civitas, Madrid, 2004 (2008 reprint).

LEGAL TEXTS

GENERAL LAWS
* Spanish Constitution
* Civil Code

COMMERCIAL LAWS

*Commercial Code
*Royal Legislative Decree 1/2010, approving the amended text of the Capital Companies Law.
*Law 3/2009, 3rd April, on structural amendments to commercial companies.
*Law 24/1988, 28th July, on the Securities Market.
*Law 22/2003, 9th July, on Insolvency.

RECOMMENDED CODES
* Unified Code of Good Governance

Timetable and sections

Group Teacher Department
Sec: A Javier Fontcuberta Llanes Derecho
Sec: A Miguel Trías Sagnier Derecho

Horari Sec: A

From 2015/9/15 to 2015/10/22:
Each Thursday from 10:00 to 11:30. (Except: 2015/9/24)
Each Tuesday from 8:00 to 9:30. (Except: 2015/10/6, 2015/10/13 and 2015/10/20)

From 2015/10/6 to 2015/12/15:
Each Tuesday from 8:00 to 9:30. (Except: 2015/12/8)

From 2015/10/29 to 2015/12/17:
Each Thursday from 10:00 to 11:30.

Monday 2016/1/18 from 10:00 to 14:00.

Wednesday 2016/6/29 from 9:00 to 12:00.

Group Teacher Department
Sec: B Javier Fontcuberta Llanes Derecho
Sec: B Miguel Trías Sagnier Derecho

Horari Sec: B

From 2015/9/15 to 2015/10/22:
Each Tuesday from 10:00 to 11:30. (Except: 2015/10/6, 2015/10/13 and 2015/10/20)
Each Thursday from 8:00 to 9:30. (Except: 2015/9/24)

From 2015/10/6 to 2015/12/15:
Each Tuesday from 10:00 to 11:30. (Except: 2015/12/8)

From 2015/10/29 to 2015/12/17:
Each Thursday from 8:00 to 9:30. (Except: 2015/11/12 and 2015/11/26)

Thursday 2015/11/26 from 10:00 to 11:30.

Monday 2016/1/18 from 10:00 to 14:00.

Wednesday 2016/6/29 from 9:00 to 12:00.