Introduction
Under Peruvian law, shareholder agreements have become essential tools for strengthening the internal governance of companies. Although they are not expressly regulated in the General Companies Act, their recognition by legal doctrine and case law has grown considerably, allowing partners to establish agreements that complement or modify the provisions of the articles of association.
What is a shareholders’ agreement?
A shareholders’ agreement is a private agreement between one or more partners in a company, which regulates aspects such as:
- The exercise of voting rights.
- Restrictions on the transfer of shares.
- Composition of the board of directors.
- Drag-along and tag-along rights.
- Dividend policies.
These agreements allow the corporate structure to be adapted to the real needs of its partners, beyond the formal provisions of the articles of association (Revoredo.pe, 2021).
Validity and enforceability
According to academic publications such as Revista Actualidad Mercantil (PUCP), the enforceability of these agreements against third parties and against the company itself is one of the main legal issues. In principle, they are binding only between the signatory parties. However, they may become enforceable against the company if they are duly incorporated into the articles of association or if the company is a party to the agreement.
In this regard, the Revista Advocatus of the University of Lima indicates that, in order to ensure their effectiveness, agreements should be known to the corporate bodies and, where possible, ratified by a general meeting.
Types of common clauses
Among the most commonly used clauses are:
- Drag-along: gives a majority shareholder the right to compel minority shareholders to sell their shares under the same conditions.
- Tag-along: allows minority shareholders to join a sale initiated by a majority shareholder.
- Voting syndication agreements: agree to vote jointly on certain corporate decisions.
These clauses make it possible to reduce internal conflicts, establish orderly exits from the share capital, and align the interests of the partners (Revoredo.pe, 2021).
Risks and challenges
One of the main risks is a lack of clarity or contradiction with the articles of association, which can lead to legal disputes and even the partial invalidity of the agreement. In addition, in agreements with an indefinite term, the issue of unilateral termination has been the subject of doctrinal debate, as analyzed in the Revista de Derecho y Empresa (Law and Business Magazine).
It is also common for the parties to sign agreements without proper legal advice, which leads to ambiguities or clauses that are difficult to enforce.
Common cases of conflict
According to PPU Legal (2021), the most frequent disagreements between partners include:
- Disputes over strategic decision-making.
- Departures of partners without clear rules.
- Transfers of shares without consent.
In all these cases, well-structured shareholder agreements act as an effective preventive mechanism.
Conclusion
Although private in nature, shareholder agreements play a crucial role in the management and stability of Peruvian companies. Proper drafting, alignment with the articles of incorporation, and understanding by all involved are essential for their legal effectiveness. In a business environment where conflicts between partners can escalate quickly, these agreements are an indispensable legal tool.
Are you looking for legal advice for companies that guarantees well-structured and risk-free shareholder agreements?
At VAG Global, we provide tailored legal advice for companies, helping you prevent conflicts between partners, protect your investments, and strengthen internal governance. Our team of specialists in corporate law will accompany you throughout the process.
References
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Revoredo.pe – Shareholder agreement clauses
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University of Lima – https://revistas.ulima.edu.pe/index.php/Advocatus/article/download/4791/4728/