Halka Açık Anonim Ortaklıklarda Ayrılma Hakkına Konu Payların Diğer Pay Sahipleri veya Yatırımcılara Önerilmesi ve Hukuki Sonuçları

Abstract

The first regulations regarding the appraisal right in Turkish law were made with the adjudgment of Article 24 of the Capital Markets Law No. 6362. The appraisal right first appeared in US law, which was included in the Anglo-Saxon legal system in the middle of the 19th century. With the appraisal right, the minority shareholder is given the right to leave from the body of the partnership that has carried out the important transaction to which it is opposed by selling his/ her share at a fair value, in return for his/ her veto right, which he/ she lost in the transition period from unanimity to majority, in joint stock companies. With the appraisal right, not only the interest of the minority shareholder, but also the transaction interest of the partnership and the majority interest are protected. When the associate who opposes the important transaction uses his/ her appraisal right, the partnership becomes obligated to purchase the share subject to the appraisal right. The aforesaid obligation to purchase may create a significant financial risk on the assets of the partnership. In order to reduce the financial risk and protect the assets of the partnership, alternatives have been envisaged in foreign legal systems in which the appraisal right is restricted in certain situations, the share subject to the appraisal right is provide from a determined source of the partnership, or the offer, which is the main subject of our study. Within the scope of the Law No. 7222 on the Banking Law and Law on Amending Certain Laws, the adjudgment of the Capital Markets Law regulating the right to leave were changed, allowing the share subject to the appraisal right to be offered to other shareholders or investors. The authority to regulate the procedures and principles regarding the offer has been given to the Capital Markets Board. As a result of the amendments made in the Law No. 7222 and the demands from the market, No. II-23.3 the Communiqué on Significant Transactions and the Appraisal Right was issued by the Capital Markets Board, and the procedures and principles regarding the offer were regulated by the Communiqué. In the first part of our study, the concept of the appraisal right, its historical process, purpose and function, its comparison with similar legal rights and the regulations regarding the appraisal right in Turkish law are explained; in the second part, the historical process of the offer in foreign legal systems and Turkish law, the characteristics of the right and the usage process are explained and suggestions regarding regulation are made; in the last part, the offer is compared with similar legal institutions.