Розвиток концепції корпоративного договору в Україні

In recent years, the use of shareholder agreements in private companies has become increasingly widespread in Ukraine. This can be attributed to the preference of experienced Ukrainian and foreign investors to regulate their relationships in private companies more comprehensively, particularly with respect to corporate governance, share transfers, and exits from investments, than is typically provided by the corporate laws of any jurisdiction, including Ukraine. Such practices have long been the norm in developed countries and Ukraine has not remained isolated from these trends in corporate law having recently aligned its legislation with contemporary approaches in the field. However, a decade ago, Ukrainian corporate law did not contain a concept of shareholder agreements while Ukrainian courts considered shareholder agreements to be against public policy. The purpose of this article is to analyze the evolution of legislation and court practice on shareholder agreements in Ukraine from a historical and comparative perspective. The author highlights similarities in the judicial philosophies of Ukrainian courts and those in the United States and Germany. Specifically, it is noted that courts in the United States and Germany initially exhibited hostility toward contractual freedom in corporate law, a stance mirrored by Ukrainian courts in the 21st century. However, the author observes that Ukrainian court practice has significantly lagged behind major developments that occurred in the latter half of the 20th century and the early 21st century. The article further examines a fundamental shift in the philosophy of Ukrainian corporate law following the adoption of legislation on shareholder agreements and limited liability companies in 2017 and 2018. These reforms aligned Ukrainian law with leading global trends by formally permitting shareholder agreements. The new legislation also introduced irrevocable powers of attorney and option agreements, enhancing the practical effectiveness of shareholder agreements. Based on the findings presented in this paper, the author concludes that the regulation of shareholder agreements in Ukraine has been developing in line with global trends, but with a significant delay, which led to structuring of investments in Ukraine mainly via foreign holding companies with minimal use of Ukrainian corporate law. The author further concludes that the legislative regulation of shareholder agreements is crucial for attracting investment to the Ukrainian economy, since there is always demand by professional investors for contractual regulation of corporate relations in a private company. The paper further emphasizes that adaptive corporate law is a key factor in the successful reconstruction of Ukraine, as any investment begins with robust corporate relations and governance.