Contemporary Problems of Social Work
Approval of interested party transactions under Russian law
Автор/Author: Starodumova S.Yu.,Golovkin P.A.
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At the moment, the Russian Federation stands in the way of reforms, which in substantial part aimed at increasing investment attractiveness of our country. One of the most important aspects that reflect the willingness of a state to attract serious investment, is the state of corporate law. Unfortunately, the legal regulation of corporate relations at the national level is at the stage of formation, which often causes difficulties in the right application. One of the most controversial and important institutions of corporate law are transactions that require special procedures for their approval. In this article we will discuss one type of such transactions, and the transaction in which fulfillment there is an interest.
We believe that the active involvement of additional investment will inevitably resulting in an increase in the number of cases of participation of the same individuals in different companies, and therefore there is a need to consider whether the interest of those or other persons In the Decision of the constitutional Court of the Russian Federation dated April 10, 2003 N 5-P with special emphasis on transactions of the joint stock company that may cause conflict of interests between the shareholders holding a significant number of shares of the management bodies of the company and minority shareholders.
In this regard, it should be stated that in the modern civil turnover, more and more cases, when the interests of different actors face, creating formal criteria for dividing the actual interest and legal. Despite the desire of the legislator to regulate corporate relations in civil law, the regulation of the Institute of transactions remained at the mercy of the sub-equity legislation, which contains many ambiguous wording, causing heated debate both in doctrine and in practice.
In addition it should be noted that in recent years do not cover this issue, despite the fact that practical problems that arise during the application of the legislation on related party transactions, becomes only more. In addition, most of the existing works are outdated or only affect certain aspects of the concepts. In particular, the study of the regulation of related party transactions in different time were devoted to the work of K. M. Aliyeva, B. A. Belov, A. N. Borisova, M. I. Bragin, A. C. Gabova, A. A. Glushchenko, O. C. Gutnikov, C. I. Dobrovolsky, V. C. Dolinsky, C. D. Zhdanov, A. A. Makovsky, S. D. Mogilev, Ie, The Great, O. N. Sadikov, R. O. Of Sboev, E. A. Sukhanova, M. Y. Tikhomirova, I. W. Faizutdinov, N. In. Fomicheva, I. C. Sitkunai, A. E. Engleskog.
The object of research is the relationship associated with the qualification and approval of related party transactions, as well as relations between the society, its members and third parties as a result of such legal facts.
The subject of research are the norms of the Russian legislation and in particular, the Federal law dated 26.12.1995, N 208-FZ "On joint stock companies" (Hereinafter - the Federal law on joint stock companies), which regulates the relations connected with the qualification and approval of related-party transactions. Due to the limitations prescribed in respect of the scope of this work, the emphasis is on the analysis of the regulation of related party transactions contained in the joint legislation. In our opinion, the practice of joint-stock legislation contains the largest number of controversial issues that require legal resolution. In addition, the study includes research of the Russian civilities, jurisprudence and international law, in the part concerning the Institute of transactions.
The study will be formulated the concept of related party transactions; researched the subject structure of related party transactions; basic criteria of affiliation, which is essential for related party transactions, as well as the most appropriate criteria for determining the continuity of the transactions; the procedure for approval of related party transactions.
The main method performed in a system-structural, which helped to identify the legal nature of the related party transactions in connection with other transactions, including interrelated, as well as the inner content of such transactions.
The combination of legal, historical and comparative legal methods allowed us to identify the specific impact of the historical conditions for the development of related party transactions, in particular the influence of various actors at the conclusion of these transactions.
Formal legal method made it possible to analyze the legal norms regulating relations on the approval of interested party transactions.
On the basis of the sociological method, grounded conclusions, suggestions and recommendations for business entities to establish criteria coherence transactions.
Systemic-structural method gave the authors the opportunity to consider transactions in corporate relations.
In law there is no concept of transactions, which should be interpreted as a transaction, the consummation of which by law require the consent or prior consent of a person having an interest in a transaction or entitled to give economic society mandatory instructions.
Enshrined in Russian law the subject structure of transactions is virtually unlimited expands the circle of persons who may have an interest in the transaction of business by the company. Varying interpretations of a given situation in judicial practice allows you to both expand and narrow the list of these persons In particular, the question of interest management organization which is carrying out functions of the sole Executive body in several societies wishing to enter into a transaction remains open. However, its solution depends the possibility of provision of services by most of the major management companies.
Despite the introduction of the civil code of the notion of affiliation as the relationship of connectedness, the question about affilirovannyh persons is one of the most controversial issues of the subject composition of transactions. A significant problem is the lack of legislative basis of the list of affiliated persons individuals not engaged in entrepreneurial activities. In addition, ambiguously interpreted the question about the possibility of accounting as subjects of interest of affiliated persons affiliated person. We believe that the inclusion of these amendments in the civil code can improve the regulation of this issue.
Ambiguously worded legislation the basis of the interest. The prevailing part of the courts does not recognize the possibility of actual interest. To recognize a person interested in the transaction must have formal criteria stipulated in the law. Analyzing such basis interest as "engaging in certain subjects of positions in management bodies of legal entities, which is a party...", it was concluded that for the purposes of applying this Foundation, most preferably will not consider the General shareholders ' meeting as the governing body, because the term "position" means not only a special competence and authority, but also a special procedure for its replacement.
In the work an attempt was made to develop universal criteria for determining connectivity. Transactions need to recognize the interconnected if: the subject of all transactions is the property of one kind; all transactions are made over a short period of time; parties all transactions are the same or related parties cash received from transactions aimed at the solution of any one specific task; one or more transactions ensure the fulfillment of one's obligations.
1.1. The concept of related party transactions, appeared in the Russian legislation in connection with the adoption of the Federal law of 26.12.1995 № 208-FZ "On joint stock companies". The term interested party transaction occurs and in other legislative acts, including the Federal law dated 14.11.2002 N 161-FZ "On state and municipal unitary enterprises" , Federal law dated 03.11.2006 N 174-FZ "On Autonomous institutions". Stakeholders can be defined as persons who have a real opportunity to influence the company shall make a transactions in connection with which there may be conflict of interest of the specified person and the company or its shareholders (participants), to prevent which serves as a special legal regime for transactions with interest.
In accordance with the company Law of the transaction (including loan, credit, pledge, guarantee), in which fulfillment there is an interest of certain persons specified in the law, committed by the company in a specific order. Thus, under the category of transactions can get any civil legal transaction in which interested persons.
Often, in an effort to avoid the use of rather complicated approval procedure, the society ignore the requirements of the legislation and do not approve of the transaction. There are often situations when a company simply lose sight of the need for the approval procedure. The law provides for the relatively harsh consequences of such negligence. According to p. 1 tbsp. 84 FZ on joint-stock transaction in which there is an interest and which are committed with violation of the requirements stipulated in the legislation, may be deemed invalid at the suit of the company or its shareholders. The wording of the law allows us to conclude that this transaction will be voidable.
Claims for recognition of such transactions invalid and the application of consequences of invalidity may be made within the period specified in clause 2 of article 181 of the Civil code of the Russian Federation (Hereinafter-the civil code), according to which the limitation period for the claim for recognition of the contested transaction invalid and the application of the consequences of its invalidity is one year.
The Supreme Arbitration Court of the Russian Federation (the SAC) also supports this point of view. In the Decision dated 14.12.2011 N YOU-15666/11 in the case N A60-27625/2010 the court came to the following conclusion: "however, considering the requirement for invalidating the agreement, the courts correctly assumed that deal with the signs of interest is voidable. Therefore, the lack of proper decision of the competent body of the management company for approval of such transaction is not a sufficient reason for declaring it invalid by the court".
The majority of authors have studied this Institute, believe that the understanding of the transaction which there is an interest, is revealed by identifying the entities to the transaction and the basis of their interest in the transaction . On the basis of such reasoning, and will be built much of this work, which will be closely scrutinized the most controversial issues related subjects and grounds of interest.
Thus we believe that the transaction, the consummation of which by law requires the consent of, the preliminary consent of a person having an interest in a transaction or entitled to give the company instructions obligatory for it is a transaction with interest.
1.2. The General procedure for the approval of transactions stipulated in Art. 83 of the Federal law on joint stock companies. The legislator, distributing authority for the approval of transactions between the Board of Directors (Supervisory Board) and the General meeting of shareholders, essentially formulated the norm so that it formed a significant advantage in favor of the Board of Directors. The transaction is subject to approval of the Board of Directors in almost all cases, except where expressly recognize the exclusive competence of the General meeting of shareholders. The position of the legislator seems quite reasonable when you consider its practical aspects. The use of the General meeting of shareholders, as a priority of the authority responsible for approval of transactions, would have led to a significant deterioration of the economic performance of the company. The procedure of holding the General meeting of shareholders is a complex and multistage process, it is frequently carrying out difficult. The company, in an effort to use the most appropriate path for them, sometimes ignore the instructions contained in the law, or interpret them in an unusual way. In this part of the paper will describe the most relevant and common problems associated with the procedure for approval of interested party transactions.
First of all it is necessary to describe the situation when there is a mixture of competence. Some societies, seeking to avoid the holding of the General meeting of shareholders, despite the mandatory guidelines of the law, approve the transaction by the Board of Directors. In judicial practice has developed a strong position, according to which transactions are subject to approval by the General meeting of shareholders in accordance with paragraph 4 tbsp. 83 of the Federal law on joint stock companies, however, approved by the Board of Directors shall be deemed invalid due to violations of the order of approval.
Ambiguous position exists in cases in which the transaction was approved by the General meeting of shareholders, although the law could be approved by the Board of Directors. Some scholars take the position, according to which, the approval by the General meeting of shareholders is always an appropriate form of approval, because this procedure takes into account the views of all shareholders, which effectively eliminates any conflict of interest. The most common opinion Century A. Gabov. The author considers the substitution of the appropriate authority unconditional grounds for invalidating the transaction . The largest part of the arbitration courts also adheres to this approach. The lease of non-residential premises was declared invalid by the court, as was approved by the General meeting of shareholders, although by its terms it does not fall under the exclusive competence of this body. To the opposite conclusion reached by the FAS of the West-Siberian district. In dismissing the claim for invalidation of the transaction, the court stated that the activities of the Board of Directors for approval of the deal, aimed at protecting the interests of shareholders. Describe the goals fully achieved in the course of approval of the transaction at the General meeting of shareholders. In our view, both positions have a right to exist. Despite the detailed regulation of the procedure of approval of the transaction by the Board of Directors, and the desire of the legislator imperative to distinguish between the competence of the bodies would be wrong to deny the fact that only by means of the General expression you can achieve the greatest confidence in the necessity of the transaction. Note that at a General meeting of shareholders approval of the transaction may be lobbied by the majority shareholders. Whereas, the Board of Directors is elected through cumulative voting allows minority shareholders at least to some extent, to hope for an independent decision.
Article 82 of the Federal law on joint stock companies fixed duty of persons who may be deemed interested in the meaning of Art. 81 of the Federal law on joint stock companies and must inform the Board of Directors, the auditor and the audit Committee of the company, certain information.
Pinning this duty has several goals. Firstly, the company gets the opportunity to be informed about the existence of the interest. Secondly, the possibility of participation in the approval process of the interested parties. unfortunately, this duty, like many others, very often are not executed. As a result, in the approval process for all involved stakeholders. In judicial practice, ambiguously resolved the question of the legal consequences of such participation. The vast majority of courts recognize that participation in the approval procedure, the persons concerned in the transaction, would be grounds for declaring it invalid, if a person significantly affected the voting results.
In one of the cases, the Supreme Arbitration Court was given this position. When deciding about the refusal to annul the contract, the court was guided by the logic that the decision on the transaction approval vote of the majority of independent disinterested Directors in connection with the transaction is valid. In our opinion, this position is the most appropriate because it allows to protect the rights of shareholders and the counterparty to the transaction. The invalidation of the transaction, it is unreasonable and unwise decision, if the participation of the person concerned has not resulted in any negative consequences for the company or its shareholders.
Some courts, rarely, but still had invalidated the transaction, the approval procedure involving interested persons, regardless of did their part have any influence. According to S. D. Mogilev, described the position of the courts in fact leads to unnecessary destabilization of contractual relations society. The author believes that the approval procedure should be considered as carried out legally, if regardless of stakeholder participation, the meeting would have had the necessary quorum, and approval would still have been made .
Completing a General analysis of the approval process, it is necessary to pay attention to the question of the date of approval of the transaction. Despite the fact that in Art. 83 of the Federal law on joint stock companies contains a provision according to which a transaction in which there is an interest, must be approved prior to its conclusion, some scientists still consider the subsequent approval as compliance with the established procedure. All thoughts in this case is based on p. 1 tbsp. 84 of the Law on joint stock companies. According to this standard, the court rejects the claim for invalidation of transactions made with violation of the provisions of the Federal law on joint stock companies, if at the time of the trial, the evidence subsequent to the approval of the transaction by the rules provided by this Law. In our opinion, the subsequent approval is a way of "healing" of the transaction, i.e., returning her to the requirements of the stock of legislation. Subsequent approval must be considered either as it should be, but rather as a valid procedure. A similar position is held by Century A. Gabov. The introduction of regulations allowing for subsequent approval is the next attempt of the legislator to stabilize circulation and to protect the economic interests of shareholders, and counterparties of the company.
1.3. The law on joint stock companies provides a different procedure for approval of related-party transactions, in societies with a number of shareholders 1,000 or less and the companies with more than 1000 shareholders. In the first case, the decision on the approval of interested-party transactions approved by a majority vote of the Directors who are not interested in such transaction, and in the second case, by a majority of votes of independent Directors who are not interested in such transaction.
Thus, it is possible to infer that in the decision on approval of interested-party transactions the joint stock companies, with the number of shareholders 1,000 or less can participate and dependent, in the context of p. 3 tbsp. 83 of the Federal law on joint stock companies, the members of the Board of Directors. The answer to the question about the reasons why the legislator to establish such a differentiation according to the number of shareholders in the scientific literature has not yet formed. The concept of "independent Director" is borrowed from the law of England. However, the said law provides for the presence of independent Directors without reference to the shareholders.
The existence of such differentiation can cause serious difficulties for companies, shareholders of which, close to 1000. Let us analyze the situation, when in company with a number of shareholders 999, required approval of the deal. The Registrar, in most cases, will operate slightly outdated information, because for seven days in the account of the nominee holder may be changes related to the increase in the number of holders of shares. According to Art. 29 of the Federal law on securities market, the status of the owner of the shares acquired from the moment of making an entry on the custody account or personal account. As a result, the Issuer, based on the available data, will put that company on the date of the meeting one of the number of shareholders and to take the decision on the relevant rules, and in fact it is completely different. As a result, the approval process will be broken, that is grounds for invalidating the transaction.
Unresolved you can recognize the issue on approval of transactions in the company of more than 1,000 shareholders, if at least one member of the Board of Directors will not be recognized as interested and (or) dependent. On the one hand at least one member of the Board of Directors (Supervisory Board) of the company must be an independent Director . Another indication of Art. 83 of the Federal law on joint stock companies on the need for the approval of the relevant transaction by a majority of votes excludes the possibility of this decision, one member of the Board of Directors . Judicial practice also does not give a definite answer to this question. In our opinion, the most reasonable you must accept the conclusion I. P. Pushkarev, because this position is most compliant with the General principles of corporate law. Otherwise, the vote will be just a formality, not for a balance of interests. A literal interpretation of the law cannot be used as a universal method for solving problems. The most logical would be to make the law, the condition on the minimum number of independent Directors required for a decision. This would help to avoid further controversy.
1.4. In the scientific literature discusses many different problems related to the approval of transactions by the General meeting of shareholders. Does not exist, for example, an unambiguous interpretation of the notion "subject of the transaction". Many scholars identify him with the notion of the subject of the contract, and then begin to talk about the content of this concept. Have questions about accounting already placed securities convertible into shares. Unfortunately, in this work it is not possible to analyze each of the existing problems. In addition, in our opinion, most of them are among onsecuritychange problems, which is devoted to the study of many scientific papers. In light of this, we will try to cover most problems specific to the study in this paper the concept.
Significant difficulties for the law enforcement authority is the use of a text Art. 83 of the Federal law on joint stock companies of the phrase "transaction or several interrelated transactions". The concept of "related transactions" plays a huge role in the approval process for related party transactions. Qualifications transactions as interrelated influences the calculation of the value of the subject of the transaction, and hence the division of authority for approval of transactions between the management bodies of the company. The legislation contains no definition or characteristics of related transactions that would cause the law enforcement authority a large number of problems.
A clear understanding of the criterion of coherence is necessary on the one hand, to protect the rights of individual subjects of corporate relations, and on the other hand, for the greatest stabilization of the economic turnover. The lack of a uniform understanding of the interconnectedness leads to the fact that depending on the selected criteria, in one case similar transactions recognize interconnected, but not in another.
Analysis of judicial practice and scientific literature made it possible to create a list of criteria on the basis of which the transaction may be recognized as interrelated. Raises enormous concerns the fact that even the courts of the same district often have opposing positions on this issue.
The least productive, in our opinion, are the attempts of some scholars to form a sample list of transactions, which is always interrelated. A. C. Gabov lists the following transactions: preliminary and basic agreements, basic contract and the additional agreement to it, the main and interim deal and other. Of course, all of the above transactions in most cases will be qualified by the courts as interrelated. Be aware that this model will not be effective if only because the market is not static and its continuous development will lead to the appearance of interrelated transactions at its core, however, is not included in the existing list . Of course, such gaps could be addressed through the amendment procedure. However, be aware that this is a complex and multistep process time-consuming. Consequently, the use of the analyzed approach may cause inconsistencies corporate law real life.
According to C. I. Dobrovolsky, must be considered typical for this type of transactions, the legal result, for the sake of which they are made. As a secondary criterion is also proposed to use the homogeneity property being the subject of transactions . In contrast to C. A. Piwnicki believes that the legal result would not be a universal criterion . Judicial practice also denies such an approach. The Regulation of FAS Northwest district, the court rejected in the qualification of several leases of non-residential premises as a related party transaction. The court stated: "the lease was sent to the transfer for temporary possession and use of the premises of the hotel complex, with a specialized purpose. Therefore, this contract is not interconnected with other leases entered into by the company regarding other areas of the same hotel complex, as concluded about that subject".
The homogeneity property also cannot be considered as a universal criterion, although this position exists in the judicial practice. So in a regulation, the court, pointing to the fact that the alienated property is homogeneous because the unified process, acknowledged the deal in his alienation interrelated. However, the superior court reversed this decision, stating that the court did not take into account the difference in the subject composition and economic purposes of the analyzed transactions.
Some courts resolve disputes take into account exclusively the coincidence of the counterparty in transactions and short period of time between their conclusion. By their logic, if the agreements concluded at different periods of time, in this case, we can talk about the lack of interconnectedness between transactions. On the contrary, if the deals were made almost simultaneously and with the same counterparty, it is possible to speak with confidence about the existence of interconnectedness . In our opinion, this approach has some significant drawbacks. In this situation ignores the fact that organizations with a wide range of activities can regularly provide a variety of services to its loyal customers, the content and purpose of these services will be different. For example, the organization can carry out the construction of the property, and to lease passenger transportation for the employees of its client. If you follow the logic described above, these transactions can also be viewed as interrelated. It seems most logical to use such criteria in conjunction with other, existing in law enforcement.
For a complete and comprehensive analysis of the approval process for transactions in which there is interest, it is necessary to analyse in detail the content of such ambiguous terms as "normal business operations" and try to create the most universal criteria for classifying certain transactions to those committed in the ordinary course of business.
The use of the term "normal business activity" can be explained by the desire of the legislator to simplify and accelerate the work of the society in respect of transactions which are the basis for its existence. First of all it is necessary to say that the legislation does not contain a legal definition of normal economic activities of the company, which characterizes it as an evaluative notion, requiring analysis in each case. Under normal economic activities, in the opinion of the Plenum of the RF, it should be understood that any operations that have been adopted in the current activity the corresponding LLC or JSC or other business entities engaged in similar activity, similar in terms of assets and turnover, regardless of occurred if these transactions these companies previously .
For transactions in the ordinary course of business of the LLC or JSC may include transaction:
- the acquisition by the company of raw materials required to carry out production and business activities;
- sales of finished products;
- obtaining credits to pay for current operations (e.g., purchase wholesale lots of products for further sales by retail sales).
However, as indicated by the Plenum of the RF, is not a basis for qualification of the transaction as perfect in the ordinary course of business:
- the presence of one only of the fact of its making in the framework of the activity referred to in a certificate of incorporation or bylaws of the company (JSC) as the primary for a given legal entity;
- the fact that the company has a license to engage in such activity .
This approach scientists and vessels is controversial for several reasons. First, it is not difficult to imagine a situation where a joint stock company in the Charter which defined the main activity, during its existence only a few times had entered into such transactions. Following the above logic, courts and scholars, we conclude that all other transactions of this society will not enter into the boundaries of traditional economic activities, because they are not directed at the implementation of the main activity, even if they are much more common. Secondly, the capacity of the joint stock company is a General, not a special character. Therefore, the company is entitled to carry out any lawful activity. The legislation does not contain obligations of the founders of the JSC to determine object activity within the Statute. The lack enshrined in the Charter of the company the main activity, in fact, would mean the inability to use, society, Institute of normal business activity in the process of approving transactions in which there is an interest. Similar is the position of O. C. Fedosov. The author, criticizing this approach, indicates that: ordinary business activities may be activities that are not provided by the Charter, as provided for by the Charter of the activities may not fall under the notion of normal economic activity, since in practice the society could rarely perform activities of a similar nature .
The study made it possible to accumulate the most relevant positions of scientists and law enforcement officials with proposals of changes in the theory and practice of enforcement of existing law. Most of the findings in the study, approval of transactions with interest, largely based on the analysis of judicial practice, which will enable them to form a uniform position of the courts.
Analysis of normative-legal regulation of related party transactions, allows to make a conclusion about the presence of a large number of controversial issues that exist both in doctrine and in practice. Is positively describe the activities of the Supreme Arbitration Court of the Russian Federation, which gave a significant clarification on many issues relating to related party transactions.
Used the structure of the work allowed us to delve into the analysis of the subject composition, the grounds of interest and transaction approval procedure, the contents of which are, in essence, forms the analyzed Institute. Thus, in the course of the work, we came to the following conclusions.
However, the study was not until the end of open questions concerning the definition of normal business operations causing difficulties in the implementation of procedures for approval of related party transactions. In particular in the judicial practice was formed position, according to which transactions in the ordinary course of business are recognized as such if they are regular, in this order, on an ongoing basis and to ensure the existing production process. The main purpose of such transactions is to create the necessary conditions for the implementation of main activities, by means of which formed their connection with the ordinary economic activities of the company.
 The decision of 10 April 2003 N 5-P "On the case about the verification of constitutionality p. 1 tbsp. 84 of the Federal law "On joint stock companies" in connection with the complaint of open joint stock company "Argun" // the Bulletin of the constitutional Court of the Russian Federation. N 3. 2003. C. 4.
 Federal law dated 26.12.1995 № 208-FZ "On joint stock companies" (as amended on 22.10.2014 g) // the Russian newspaper. N 248. 29.12.1995. Article 19.
 Federal law dated 14.11.2002 N 161-FZ "On state and municipal unitary enterprises" (as amended on 04.11.2014 g) // Sz the Russian Federation. 2002. N 48. C. 4746
 Federal law dated 03.11.2006 N 174-FZ "On Autonomous institutions" (as amended on 04.11.2014 g) // Sz the Russian Federation. 2006. N 45. C. 4626.
 The civil code of the Russian Federation (Including 1) from 30.11.1994 N 51-FZ (as amended on 22.10.2014 g) // Sz the Russian Federation. 1994. N 32. Article 3301.
 The definition of the SAC dated 14.12.2011 N YOU-15666/11 in the case N A60-27625/2010 // ATP "Consultant plus"