CHALLENGE OF MINUTES OF THE ASSEMBLY AND BOARD OF DIRECTORS

In concept 220-28028, the Superintendence of Companies allowed itself to define what is

understood by minutes:

The minutes are the private legal document through which everything that happened in the
corresponding meeting is reported, with the declaration of the highest body or the people
designated by it being sufficient for its approval. Therefore, if it presents what happened in
a poor way, it can refrain from approving it until the necessary corrections are made,
avoiding partial approvals given that the document is a single document and as such
inseparable.

Article 191 of the Commercial Code regulates the issue of challenging the minutes of the
assembly or meeting of partners1 , along with this article, is article 422 which deals with the
so-called meeting in its own right. Thus, the action can be attempted by the administrators,
statutory auditor and absent or dissident partners when the decisions made at the respective
meeting did not comply with the legal or statutory requirements, within two months
following the date of the meeting. meeting in which the decision was made, except in the
case of agreements or acts that must be registered in the commercial registry, in which case
the referred term is counted from the corresponding registration.

Article 191 of the CPC and 382 of the CGP, article 20 of the CGP grants jurisdiction to the
civil judges of the circuit in the first instance over matters of challenging assembly minutes,
as well as article 24 of the CGP which grants jurisdictional powers to the Superintendency
of Companies to resolve the challenge of Assembly minutes.2 ,

1
ARTICLE 191. CHALLENGE OF DECISIONS OF THE ASSEMBLY OR BOARD OF PARTNERS.
Administrators, fiscal auditors and absent or dissident partners may challenge the decisions of the assembly or
the board of partners when they do not comply with the legal requirements or the statutes.

The challenge may only be attempted within two months following the date of the meeting in which the
decisions are adopted, unless it concerns agreements or acts of the assembly that must be registered in the
commercial registry, in which case which two months will be counted from the date of registration.

2
OFFICIAL 220-031225 OF FEBRUARY 25, 2014, SUBJECT: CHALLENGE OF DECISIONS –
OFFICIAL 220-005635 OF JANUARY 27, 2013; OFFICIAL 220-054538 OF MARCH 16, 2016 Ref:
It is necessary to specify that the right of challenge contemplated by the law is only
exercisable with respect to acts that may be invalid under the terms of article 899 of the
Commercial Code, and obviously for the defects and irregularities that are required for
invalidation, which implies that mere disagreement with the decision that is not shared is
not enough, since in that case there would be no legal basis to promote the action and other
mechanisms will be appropriate if it is a matter of defects that affect the decision.
Furthermore, if the company or any associate has been harmed by an act that the law
considers illegal, the relevant civil and criminal actions must be attempted, so that the
administrators who made the decision, or those who, despite their reluctance to approve it,
they executed it, proceed to joint and several compensation.

It is observed that the legislator has given a different treatment for the challenging action,
depending on whether or not they are acts subject to the registration formality, in both cases the
expiration term is two (2) months, counted, in the first case, from the moment of its registration, and
in the second, from the date of the meeting in which the decisions have been adopted. In other
words, the law has wanted to differentiate between acts that only have internal significance for the
respective company, which should not be provided with commercial advertising, and those that
have been considered to be of interest to third parties, must comply with such formality; For the
former, the challenge action begins with the issuance of the act and ends two months later. For the
latter, the challenging action arises with the registration and expires within the same term. 3

In other concepts, it has reiterated the same reasoning and the applicable standard, stating that the
standards in reference:

a) (...) are currently in force, which are applicable, as pertinent, in challenging the acts and decisions
of assemblies, meetings of partners, boards of directors or any other governing body, depending on
whether the jurisdiction corresponds to the civil judge of the circuit of the domicile of the company
or the Superintendence of Companies; b) the first of the aforementioned regulations is of a general
nature applicable to all types of commercial companies and establishes who is entitled to challenge

CHALLENGE OF DECISIONS OF THE HIGHEST SOCIAL BODY; see ruling of the Constitutional Court
C-833 of 2006 on deconcentration and jurisdictional functions, October 11, 2006, MP Jaime Araujo Rentería
3
OFFICIAL 220-017160 OF FEBRUARY 20, 2015, SUBJECT: FROM WHAT MOMENT IS THE
PERIOD TO CHALLENGE THE MINUTES OF THE ASSEMBLY OF A CORPORATION AND
COMPETENCE TO HEAR THE CHALLENGE, see in the same sense: OFFICIAL 220-081120 OF MAY
20, 2014, SUBJECT: CHALLENGE OF ACTS, ADMINISTRATIVE MEASURES AND DISMISSAL OF
LEGAL PERSONALITY, case Capital Airports Holding Company against CAH Colombia SA, Verbal
process, process number 2012-801-029, on challenge of minutes by purpose illicit.
such acts or decisions; c) The second of those named indicates the procedure that must be followed
for this purpose; d) the third, attributes to the Superintendency of Companies jurisdiction to hear the
challenge process regarding the supervised companies, through the summary verbal process, while
the compensation action for possible damages that may arise from the act or decision , will be the
exclusive jurisdiction of the judge; e) the fourth, lies in the civil judges of the circuit the jurisdiction
to hear in the first instance the challenge of the acts or decisions of the highest social body and
boards of directors of the legal entities of private law, through the verbal process, without prejudice
of the competence attributed to administrative authorities, in the exercise of jurisdictional functions;
f) the fifth, grants this Body jurisdiction to hear, and prevent, challenges to corporate decisions, in
the case of companies subject to its supervision, that is, those inspected, monitored and controlled.

As can be seen, article 382 of the General Process Code is not the only rule that regulates matters
relating to the challenge of acts or decisions of assemblies, meetings of partners, boards of directors
or any other administrative body, but rather also those to which reference was made previously, and
therefore, are applicable in each specific case.

ii) Pursuant to the provisions of article 87 of Law 222 of 1995, modified by article 152 of Decree
019 of 2012, which deals with administrative measures, it states that “In any case in any company
not subject to surveillance of the Financial Superintendency, one or more associates representing no
less than ten percent of the share capital or one of its administrators, provided that they are
companies, sole proprietorships or branches of foreign companies that, as of December 31 of the
immediately preceding year, register assets equal to or greater than five thousand (5,000) current
legal monthly minimum wages or income equal to or greater than three thousand (3,000) current
legal monthly minimum wages, may request the Superintendency of Companies to adopt the
following measures:

(…)

Paragraph 2. Companies, branches of a foreign company or sole proprietorship not subject to the
supervision of the Financial Superintendency, that do not meet the requirements established in this
article may use conciliation before the Superintendency of Companies to resolve conflicts that arise
between associates or between these and society. Without prejudice, to go to court under the terms
of article 252 of Law 1450 of 2011." (The call is ours). From the analysis of the aforementioned
provision, it is deduced that this, in addition to the administrative measures enshrined therein,
provided for the possibility that any of the companies and branches of foreign companies not
subject to the supervision of the Financial Superintendence, that do not meet the requirements
required therein to request an administrative investigation, you may go before the Superintendency
of Companies to resolve corporate conflicts that may arise between the associates or between them
and the company.

Then, under these conditions, any company or branches of foreign companies that are not subject to
the supervision of the Financial Superintendency, including home public service companies, may go
before this Agency to resolve corporate conflicts that arise. inside the company.

A different thing is stated regarding the companies supervised by the Superintendency of Ports and
Transportation, which will not be able to make use of conciliation before the Superintendency of
Companies but before the entity that exercises its supervision, since according to the ruling of
September 25 of 2001 of the Council of State, Plenary Chamber of Administrative Litigation, said
Superintendency has the same jurisdiction as Supersociedades because it is comprehensive
surveillance, objective and subjective control.

(…)

iii) On the other hand, the rejection of legal personality consists or occurs when the company is
used in fraud of the law or to the detriment of third parties, the associates or administrators who
have carried out, participated in or facilitated the fraudulent acts, will be jointly and severally liable.
for the obligations arising from such acts and for the damages caused.

Now, it is up to this Entity to declare nullity of the fraudulent acts and the rejection of the legal
personality of the companies subject to its supervision, that is, of those inspected, monitored and
controlled, through the summary verbal procedure.

In effect, article 24 already mentioned states that “The administrative authorities referred to in this
article will exercise jurisdictional functions in accordance with the following rules:

(…)

5. The Superintendency of Companies will have jurisdictional powers in corporate matters,

referring to:

(…)

d) The declaration of nullity of fraudulent acts and the rejection of the legal personality of the
companies subject to its supervision, when the company is used to fraud the law or to the detriment
of third parties, shareholders and directors who have carried out, participated in or facilitated the
fraudulent acts, they will be jointly and severally liable for the obligations arising from such acts
and for the damages caused. Likewise, it will be aware of the compensation action that may arise
for possible damages arising from fraudulent acts.4

The Superintendency has also said that INEFFECTIVE DECISIONS DO NOT REQUIRE CHALLENGE. On
this aspect, he has cited the jurisprudence of the Council of State, First Section, ruling of August
28, 19975, Exp. 2133 MP Carlos Galindo Pinilla, where the procedural and substantial aspect of the
issue has been defined, as follows: “As in accordance with article 190 of the C. of Co., meetings
held without the required quorum are ineffective, which means that “they do not produce effects
without the need for a judicial declaration or administrative ruling, they do not require being
challenged due to their lack of value or their legal uselessness is implicit in "that sanction that
works automatically by operation of law" 5 . This is what article 897 of the aforementioned Code
means by the expression “full right.” Once the lack of quorum is verified, those same
circumstances determine “per se” that the act is ineffective, that is, that it cannot produce any
effect. In this virtue, it must be understood that the right of challenge provided for in article 191 of
the Commercial Code is only exercisable against acts vitiated by nullity, that is, those that are
adopted without the required majority but within a meeting held with the legal quorum. or
statutory, or exceeding the limits of the social contract.” Although it is true, the decision adopted
by the highest social bodies in accordance with the previous courses is ineffective, it is also true
that the budget that gave rise to it must be recognized, and it is thus that in paragraph 3 of article
18 of the Decree 1023 of 2012, by means of which the structure of the Superintendence of
Companies is modified, established that it will be competent to recognize the budget of
ineffectiveness provided for in the Second Book of the Commercial Code, to the office of the
Deputy Superintendent of Commercial Procedure and the procedure It will be established in
articles 233 of Law 222 of 1995, and literal C) of numeral 5 of article 24 of Law 1564 of 2012
General Code of the Process, General Code of the Process.6

4
OFFICIAL 220-132662 OF OCTOBER 7, 2015, SUBJECT: EXCLUSION OF SHAREHOLDERS –
MAJORITIES – BOARD OF DIRECTORS – CHALLENGE OF MINUTES – CALL AND OTHER
TOPICS – SAS.; OFFICIAL 220-062953 OF APRIL 24, 2014 matter CHALLENGE OF DECISIONS ART.
190 AND 191 OF THE COMMERCIAL CODE
5
General Theory of Societies José Ignacio Narváez, 1st Ed. 1975, page 34, cited by OFFICIAL 220-062953
OF APRIL 24, 2014 CHALLENGE OF DECISIONS ART. 190 AND 191 OF THE COMMERCIAL CODE.

6
Official Letter 220-042557 From April 30, 2013, Ref.: Filing 2013- 01- 074527 The corporate bylaws, like
all contracts, are law for the parties; OFFICIAL 220-170644 OF OCTOBER 14, 2014 SUBJECT: BY
GENERAL RULE, ASSOCIATES CANNOT DIRECTLY CALL THE HIGHEST SOCIAL BODY –
REMOVAL OF LIQUIDATOR – SOCIAL ACTION FOR LIABILITY – CHALLENGE OF MINUTES;
Official Letter 220-048316 Superintendency of Companies of April 11, 2011; CONCEPT 220-50244, DE
1998, Superintendency of Companies