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False sign

10.06.2011 10:00 / Vedomosti

It is no point to complete shareholders` agreement according to the Russian law, as you can only copy company rules. This is the result of the legal experiment, which was set up by the co-owners of "Verny znak" company.

According to the Russian law the co-owners of the companies can complete management agreements since summer 2009. Amendments to the law about JSC and LLC went into effect at that time; they had been passed as the Moscow International Financial Center was created. Business used the opportunity. From the experience of the White & Case Partner Andrei Dontsov, already 10-15% of new shareholders` agreements are completed in accordance with the Russian law. For example, "Rosnano" declared about the use of the instrument in their investment projects.

But courts are not ready to give company members carte blanche in asset management tool choice. The co-owners of the LLC "Verny znak" decided to set up an experiment. Dmitry Dmitriev, the Partner of the law firm "Pravovoy Departament" and 20% owner of "Verny znak", controverted the agreement which he completed to the other party - Roman Shchitkov (80%). Dmitriev explains that they had difficulties in company management, so wanted to settle them, and at the same time see how agreements in accordance to Russian law work in practice. To the beginning of June, courts of three instances rendered ineffective not only the engagements forbidden by express law (for example, about exclusion from the poll), but by the company rules as well. For example, disproportional profit distribution, restrictions on disposal of interest ("Vedomosti" has all the decisions).

It comes out that the norm about the agreements exists in the law, but is of zero value, Dmitriev states and promises to file a supervisory appeal to the Supreme Arbitration Court (SAC). The President of the In-house Lawyers Association and Deputy Director of the Legal Department of "Rosnano" Alexandra Nesterenko mentions that the courts could destroy the management agreement of "Verny znak" co-owners because they intentionally included the articles which are forbidden by law and presented it as an experiment. She hopes that the case will not establish a precedent, otherwise business risks will be too high.

The decision proves apprehensions that the system does not work without law reformation, says Ivan Oskolkov, the Department Director of The Ministry for Economic Development: "It comes out, that what is not directly allowed by law is forbidden".

New version of the Civil Code is prepared by the Presidential Executive Office to be introduced in the State Duma. The President lawyers offered to restrict the opportunities of co-owners agreements made outside the company rules: shareholders` or LLC members powers volume is defined in the document in accordance to their shares. That means that by shareholders` agreement you can`t waive rights given by the block of shares.

At present time, the Ministry for Economic Development, the MIFC working group and the SAC have a discussion of the bill change to get more liberalized, said two members of the discussion. For now, the work is not completed, Oskolkov says. He thinks essential to allow to make agreements not only between company owners, but also between them and, for example, potential investors, and to introduce a concept of irreducible penalty. Nesterenko adds that it is important to resolve disproportional profit distribution and votes in Management Boards, and allow to waive rights by one of the co-owners.

Project Group №2Ivan Oskolkov