Business needs to be protected. Protection of assets, rights and interests of a business.
The topic in the title of the material is of interest for everyone, but when I tried to find research on this subject, my lawyers met with a sufficiently small number of them.
The only material that, in my personal opinion, deserves mention is the work on the topic “Four corners of protection” by Ilya Samoilov, Ph.D., deputy. Dean of the Faculty of Law. M.M. Speransky Academy of National Economy under the Government of the Russian Federation, published in EZh Lawyer.
Having studied it, I will be forced to retell it in part, or I may repeat it and express my own opinion.
Let me remind you that I am interested in business protection strategies and tactics that allow us to systematically ensure the protection and defense of the interests of the latter in any conflict that has arisen.
Every business has fears. Fear that business will be lost. Fear of having to share it without reason with others.
There are fears that this will happen at the initiative of the state, for example, in the face of law enforcement agencies or simply thugs from the main road. This can also be attributed, the emergence of requirements of state bodies to prosecute (tax, administrative) and the recovery of relevant taxes, fines and other things.
Probably not so important a specific expression of such fear.
He is now the question of how to manage it. Managing fear (derived from possible legal risks) will either eliminate its occurrence or minimize the possible costs of appearance (including temporary).
As logic and practice show, the main interest is represented either by assets belonging to a business or shares (shares) that provide control over this business.
It is also worth accepting that the initial thesis is that prevention is always cheaper than eliminating the consequences that have already occurred. Unless you are in the category of people whose roast rooster does not bite yet, he will not do anything.
Although a banal and classic example, when in itself the beneficiary of a business may pose a danger to him is death. In this situation, there can be a problem of both obtaining operational control over the company, creating conditions for fulfilling obligations under contracts to third parties, and entering into the inheritance of heirs.
Understanding that it may be of interest to "interested" in business (I do not want to use the term "raider", because in part he is already tired of constantly and not always appropriate use), it is advisable to identify specific vulnerabilities.
These vulnerabilities include:
1. Individuals - shareholders (participants) of the company, management bodies (sole executive body, board of directors, management board and others);
2. Legal entities - the companies themselves, through which the business activity is conducted, and their obligations to third parties (ala payables, although the claims of third parties may not be proprietary).
We will not say that the requirements may be frivolous, specially created, or specially acquired (consolidated). I will note here that, understanding the subjects of vulnerabilities, ideally it is to control possible litigation at least disputes over them (including by tracking information in the case files, receiving mail correspondence).
Also, if we imagine that obtaining control over a business is a project that has its own price, then it would be reasonable to make a preliminary calculation of the costs of running such a project. Although the work performed in this way will not give a complete picture of the costs, it is possible to strengthen the business’s motivation for preventive protection measures, or more rapid and radical ways of protection in a war that has already begun.
At the same time, an understanding of the project budget will make it possible to better assess the rivals in the conflict and the seriousness of their intentions. Although such conflicts can be quite an interesting form of investment.
To underestimate rivals, by the way, will be stupid. And expensive. And it may have a lethal effect.
The budget, in my opinion, is one of the key factors in the situation under discussion. Therefore, if the budget of those who are “interested” in business turns out to be more than planned, then they may decide to stop the aggression. Such a decision can be made when the budget is equal to the value of the business itself.
Different factors influence the choice of an object of attack by “those interested in another's business”. These include, inter alia, the fame of the company, the nature and level of business relations, the social and social activities of the company, the level of management.
Most likely, the invaders will strive to make the project itself legally formally clean. Because it is important, probably, not only to capture, but also to keep the captured.
Therefore, preventive measures against seizure are based around:
1. in relation to individuals - the senselessness of the impact, pressure on them, as a single taken person or some group of them cannot give the desired effect for attackers;
2. in respect of legal entities - control over obligations, counterparties, possible grounds for the appearance of claims.
In this regard, the following elements of vulnerabilities are highlighted that need to be worked on (in fact, the main points of the organization of legal protection of business):
1. protection and protection of individuals (shareholders / participants, governing bodies), including in situations of forced transactions and transactions in the interests of third parties;
2. protection and security of property owned by the company (s);
3. protection and defense of persons acting on behalf and in the interests of the company;
4. protection and security of the established structure for managing business processes in a company (companies).
I will dwell only on two of them.
Protection and protection of individuals.
The ideal situation may be when the business owner (beneficiary) is not one person. And there are several. Perhaps even these are members of one family, distant relatives. Or just good business partners.
It would be suitable if individuals themselves are not part of the shareholders (participants) of the company (say, owning the assets), but participate in it through a public organization or a foreign legal entity with nominee shareholders and a director.
At the same time, the territorial remoteness of such a beneficiary from the location of the companies and the business itself may be important.
Protection and protection of property of the company.
The company's property should not be held by a company that actively participates in transactions with third parties and participates in production or trading activities. That is what assets should be taken to a company that does not engage in such activities. Perhaps depending on the type of property, it is worth using two or more legal entities. Well, yes, if you have not yet understood, then a legal entity is the most suitable entity, in my opinion, for formally owning assets.
It is advisable that persons who are participants (shareholders) or belong to persons capable of acting on behalf of such a legal entity have no formal relationship to companies that are actively involved in the business.
Thus, there are separate property owners and operating companies. The relationship between them is made out of agreements on the use of property, or on the provision of funds from the owner of the operating company.
At the same time, as a possible transaction, which, in my opinion, it is worth paying attention to, like the type of property itself, is intellectual property and transactions in relation to it (for example, licensing agreements, agreements of commercial concession, etc.).
Considering that the company-owner of assets does not participate in transactions with third parties, but only in operations with “own” operating companies, the possible presentation of requirements to them is possible only on the basis of forged documents.
Consequently, the likelihood of such claims to companies-owners of assets decreases with a parallel decrease in requirements for operating companies due to the absence of any assets on them.
Naturally, in the foregoing, the question immediately arises of how to manage everything like that, where to keep employees, including management. The answer is the managing organization.
The presence of a third organization in a business scheme will reduce the risks associated with both internal problems (say, as a result of illegal actions of individual employees of the company) and external (again, the lack of property ensures its safety).
At the same time, the presence of a management organization will reduce the risks of physical impact on certain individuals who are shareholders (participants) or are members of the governing bodies of companies.
By the way, in this place I will pay attention to changes in corporate legislation that help minimize the listed risks. In particular, paragraph 3 of paragraph 1 of article 53 of the Civil Code of the Russian Federation provided that "the authority to act on behalf of a legal entity is granted to several persons acting jointly or independently from each other." Accordingly, the compatibility of actions can be a very good element of protection.
Thus, the introduction of a managing organization, the presence of management bodies (primarily collegial — the board of directors, the management board), a system of representatives for direct control and management of the operating company’s activities will reduce the possible risks that come to a single individual.
To say that the powers of individuals who are representatives should be as detailed as possible and will not be limited. This is assumed and is a topic for separate discussion.
Also, as a separate topic, this is a detailed elaboration of the competence of the company's collective bodies in such a way that all significant operations and transactions go through their prior approval.
I hope that the foregoing will be perceived as an occasion to reflect on the safety of the business, as a scheme requiring consideration of the nuances of each business and, of course, adaptation.
And as a reason to get acquainted with us about our capabilities in the topic under discussion.
September 16, 2015
David Glikstein, Vitaly Vetrov
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