Dear Sirs,
We refer to your query concerning the subject matter above.
We understand that you wish to form a platform for private equity investments established as a partnership limited by shares (Société en commandite par actions, “SCA”) under Luxembourg law.
We are asked to give our legal advice on whether the British Private Equity and Venture Capital Association (“BVCA”) clause regarding the transfer of interests in a SCA (the “Clause”) could be adapted to the SCA as to be valid under Luxembourg law (I) and whether this Clause should be reflected in the articles of incorporation or in a separate shareholders agreement (II).
The clause provides for rules regarding the transfer of the general partner’s interests (I.1), the situation of a “special limited partner” (I.2) and the transfer of the limited partners’ shares (I.3).
As a preliminary remark, it has to be noted that the SCA is governed by section V of the law on commercial companies dated 10 August 1915 (the “Law of 1915”) which states that the provisions regarding the limited company (Société anonyme, “SA”) will apply, unless there is a specific provision regarding the SCA .
As far as the transfer of shares and interests are concerned there are no specific provisions in Section V of the Law of 1915.
I. Validity under Luxembourg Law
1. Transfer of the general partner’s interests
The Clause provides that the general partner can in principle freely assign its shares (i.e. without the consent of the limited partners) but that in case of private equity or venture capital funds some constraints might apply (in some cases). Therefore, there are several questions arising: are the shares of a general partner freely negotiable; can the right of the general partner be limited (if the answer to the first point is yes); on which conditions (if the answer to the second point is yes).

Because of its unlimited liability the general partner of an SCA has a status similar to the unlimited interest