Ana Perestrelo de Oliveira, in co-authorship with Madalena Perestrelo de Oliveira, has written an article entitled “Pre-emptive rights in the sale and purchase of shareholdings and contract fraud”, published in the Revista de Direito Comercial.

The article sets out a detailed analysis of the legal system’s responses to cases of potential fraud related to the right of pre-emption in the sale and purchase of shareholdings. This right allows a shareholder to substitute a third party in a sale and purchase agreement under the exact same conditions previously agreed between the selling shareholder and the third party. However, there are practices that seek to circumvent this right, such as when a shareholder uses a special purpose vehicle to avoid the pre-emptive rights of other shareholders.

The authors explore several dimensions of this issue, including the pre-emptive rights established in company by-laws and shareholders’ agreements, the question of “improper pre-emption”, the effectiveness of pre-emptive rights and the means of reacting to non-compliance therewith, the classification of non-compliance as contract fraud, and the difference between fraud and simulation, among other topics. 

• This article is available here.