The making of decisions or acts is the central core that allows the development of the corporate purpose or activities of companies. In that sense, they do not correspond to a single person, but may be carried out by the general meeting, board of directors, partners' meetings, or any other governing body of private legal entities. Thus, discrepancies may arise among them, resulting in erratic decisions.
Pursuant to Article 191 of the Colombian Commercial Code, active standing is granted to administrators, statutory auditors, and absent or dissenting partners, who will have the possibility to challenge if the decision made is not in accordance with legal guidelines, company regulations, or bylaws.
Therefore, in the role of the entities authorized to exercise the right to file a challenge action, they have the dynamic faculty to properly supervise compliance with legal parameters in decision-making, and this will allow them to contest the validity and legality of such decisions within the term stipulated by law.
In that sense, it is established that the action to challenge has a limitation period, which is limited to the range of two (2) months following the date of the respective act, that is, from the moment the meeting for decision-making was held. However, it is noted that any decision or act that must comply with the legal formality of registration in the commercial registry shall be counted from the moment the requirement was fulfilled.
To proceed with challenging the decision made by the company's bodies, they may go before the civil judge of the corporate domicile or before the Superintendence of Companies, where the respective lawsuit will be filed based on the precepts that gave rise to the action. Likewise, it should be noted that the judge may be requested to provisionally suspend the effects of the challenged act, basing the request on the serious harm that it may cause.
However, the provisional suspension of the decision will be subject to the judge's discretion based on a subjective assessment of the harm that could be caused, therefore, according to their criteria, they will proceed to order and implement it.
Finally, the court judgment will allow us to evidence the legal or statutory violation of the decision made. In any case, it should be noted that many corporate decisions directly or indirectly affect persons other than the parties to the proceedings.
Paula Florez – AZC CONSULTING ATTORNEY