The Federal civil law, states that in order to remove the directors that were appointed in the articles of incorporation of a civil partnership, all the partners consent is required.[1] However, what does “all the partners consent” entail?
The director of a civil partnership sued the nullity of a general shareholders’ meeting resolution in which, by unanimous vote, he was removed from his position. In such a meeting all the partners where present including the director himself. However, according to the director, the requirement establishing the consent of all the partners contemplated by the civil code of the state of jalisco was not met.[2] The dispute was brought to the collegiate courts through a direct amparo action.
The fourth collegiate court in civil matters of the third circuit, ruled that since the civil code of Jalisco does not contemplate what “all the partners consent” means, given the similarities between civil and commercial corporations, thus the provisions established by the General Corporations and Partnerships Law (GCPL)[3] shall apply. Likewise the rules that regulate voting rights in case of conflict of interest between the partners or between the director and the company, shall also apply.
As provided by the GCPL, voting rights are ruled by conflict of interest principles, such as the one consisting of submission to the majority collective will. Meaning that if there is a conflict of interest, a director’s vote to remove himself from his position shall not be considered, to foster the collective interest.
The court determined that, in order to revoke the director appointed in the articles of incorporation of a civil partnership, the consent of said director is not needed. On the contrary, he must refrain from exercising his voting right and submit himself to the majority will. Since it is clear the existence of a conflict of interest, therefore the director shall not put his personal interest before the civil partnership.
[1] Federal Civil Code. Article 2711.
[2] Civil Code of the State of Jalisco. Article 229.
[3] General Corporations and Partnerships Law. Articles 156, 196 and 197.
[4] https://sjf2.scjn.gob.mx/detalle/tesis/20262
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