Russian Economic Development Ministry has prepared a draft federal law "On Amending the Federal Law" On Joint Stock Companies "and" On Limited Liability Companies "(in terms of regulation of certain aspects of large transactions and transactions with related parties)" (hereinafter - the " project " ). Already ended public discussion, and soon after modifications it should be introduced in the State Duma. The following are the most notable innovations that Russian Ministry of Economic Development proposes to legalize.
Consider extension of the list of transactions to be assessed on the size of
Draft serves to fix that analyzed for particle size characteristics, inter alia, subject to:
- employment contracts;
- transactions involving the duty of society to pass temporary possession and / or use of property (intellectual property).
Given that such transactions are in some cases can actually have a significant impact on the activities of companies, such a clarification is relevant and meets the current date jurisprudence.
However, unfortunately, the project did not take into account that employment contracts for the most part are of unlimited duration, and does not specify in this regard in respect of which specific categories of employees and payments must be analyzed for signs of size (although it would reduce the amount of labor necessary approvals contracts which, although formally fall under the signs of size, but should not be approved in terms of a reasonable business).
Addressing inconsistencies book value and market value of the alienated imuschestva
The project proposes to analyze the signs of size in the case of disposal of property with a carrying value of assets of the company not only to compare the carrying value of the property (as now), but the price of its alienation (if its value is higher). Such a specification is aimed at excluding Management abuse when alienated property with a carrying value of the low to the highest bidder (now formally a deal can not approve).
Updating of the list of transactions that do not require approval
The Project attempts to streamline the list of transactions that do not require approval as a major or related party transactions, that is certainly aimed at reducing the number of disputes that are relevant today (because now the approach of the legislator is not always consistent). Important in terms of the stability of the civil turnover seems proposal to remove the necessity of approval of the host contracts when they were approved by the relevant preliminary agreements - then the parties will not be able to "go out" of the deal when they become profitable, citing the lack of approval of the host contract.
For an explanation of the transactions made in the ordinary course of
The project is taking a commendable attempt to solve current as today the question of what is meant by the transactions made in the ordinary course of business. It is assumed that such transactions should treat the transaction:
- not differ significantly in their basic conditions of such transactions has repeatedly committed to this company for a long period of time; and / or
- not differ significantly in their basic conditions of similar transactions made by other persons engaged in the same activity.
It seems these criteria abound evaluative concepts ("substantially", "basic conditions", "similar transaction," "an extended period", "the same kind of activity") and, in fact, leave the decision on referring the issue to a specific transaction "normal" society at the discretion of the court. In practice this is unlikely to completely eliminate the existing abuse today.
Clarification of the decision to approve the transaction
Proposes to clarify the content of the decision to approve the transaction, in particular, provide by law for the possibility:
- specify the minimum and maximum parameters of the deal or the order of their definition;
- specify alternatives basic conditions of the transaction;
- put approval of the transaction under the condition of a number of transactions simultaneously.
Some points are already used in practice (such as the first paragraph), others are innovations and testify in an attempt to introduce the procedure for approval of transactions of more flexible mechanisms.
Validity of decision on approval
It is proposed to solve the problem of perpetuity of decision to approve the transaction and establish the validity of the solution for 1 year (which can be changed in the decision).
Ability to cancel a decision on approval
Provides the ability to cancel the decision on approval of the transaction by the same body that it took, before the approval of the transaction will be made, provided immediate notice to the other party.
Clarification about challenging the decision on approval of the transaction
It is proposed to introduce some restrictions on the range of persons who may initiate challenge the transaction in connection with the violation of the order of its approval. So, if it is to challenge the transaction, in addition to the company may be its shareholders (participants), regardless of the package of their shares (shares), the project proposes to grant this right to shareholders (participants), having at least 5% of the shares (10% package of shares).
However, the project specifies that the shareholders (members) owning less than 5% of the shares (10% stake), the community can offer to challenge a particular transaction, as the sole executive body of the company in good faith evades submission of a claim, then challenge yourself a deal. In the absence of any criteria Project "bad faith" sole executive authority in this matter, actually negates the effect of initially commendable attempt to limit the possibility of abuse by the minority shareholders.
Changing the grounds for refusal to recognize the transaction invalid
It is proposed to substantially change the situation in which the court leaves the transaction in force (corresponding to refuse the claim).
If the draft is adopted in this edition, you refuse to satisfy claims majority shareholders (holding 5% or more shares or 10% or more shares of the Company) will be more difficult because, in particular, from the plaintiffs would not be required to prove causation or shareholders (party) losses as a result of the transaction, and that his voice could affect the outcome of the vote, and this, in turn, may lead to a formal risk challenging transactions and thereby disrupt the stability of civilian traffic.
However, in the case of the claims of minority shareholders (holding less than 5% of shares or 10% stake in the company) wide discretion left to the court, as offered very general and vague formulation of the conditions for refusal of claims (for example, the court may reject the claim for recognition of the transaction invalid, if he comes to the conclusion "of the absence of reasonable grounds to believe that the filing of a claim in the public interest").
Eliminating the need for the approval of related party transactions
The project proposes to adjust the charter of the company need the approval of related party transactions, namely in relation to joint-stock companies to transfer approval of all or some of the related party transactions to the board, as applied to limited liability companies generally eliminate the need for approval of such transactions.
Development of Russia attempted to solve a very pressing problem today, corporate procedures relating to certain categories of transactions, including those related to the reduction of costs for the preparation and convening authorities authorized to make decisions on approval of transactions.
Although incorporated in the design ideas are generally aimed at building a more comfortable and flexible corporate environment, it seems that it should be subject to some improvements.