Nominee director: implications. Possible social roles for the director, founder (business owner) and creditors
The nominee director has become one of the attributes of Russian business. Whoever you don’t tell, or whom you don’t ask, about the nominee director, everyone will be able to comment on something in any case. Moreover, the nature of such statements will be reduced to a negative assessment of its activities.
But how similar is true, is there any benefit from its existence or recognition of a person as such, I propose to evaluate it ourselves.
In the analysis, several social roles are possible.
Role one. Symbol "Victim". An individual becomes a director due to difficult life circumstances. Moreover, not necessarily associated with the abuse of drinks or any means. The director does not take any part in the direct activities of the company. Operational management by the business owner or another person acting as manager.
Perhaps such a person does not care about property claims, lawsuits and claims both from the part of business partners, contractors, and third parties - state authorities.
The role of the second. Conventional designation "Manager". An individual becomes a director as a result of conscious actions, as far as possible due to existing knowledge and skills. The citizen also does not make independent decisions on the most important issues of companies. Either the beneficiary or the person hired by him as a manager does this for him. Among other things, the manager can participate in various meetings, negotiations and associatively in the eyes of the counterparties of the company to be perceived as a decision maker.
In the event of property disputes, such a manager may have something to lose, because the acquired by this moment is just a concomitant of the effects of the director’s knowledge and skills.
The role of the third. Symbol "Explicit Beneficiary". An individual formally legally owning a share in the capital of the company itself. Due to personal, psychological, professional or other reasons, directly involved in the process of the company. In the presence of the director, nevertheless carries out primary current management.
At meetings, negotiations, contractors, which is logical, is perceived as the head of the company.
If the same disputes, conflicts arise, there is a high risk that the losses will be tangible and unpleasant. The onset of such consequences is perceived as unacceptable.
The fourth role. Conventional beneficiary designation. An individual formally, legally not having any relation to the company itself. Based on the built-up business processes, hired managers and other people, there is a sane management system. From an analysis of such a system it is not always possible to say with complete certainty who exactly is this same beneficiary (business owner).
In meetings, negotiations does not take part. Nevertheless, it has the necessary information about what is happening.
In the event of disputes, conflicts due to the lack of participation in the company itself or other “legal ties”, it is extremely difficult to prove the reality of management, the impact on the type and nature of companies adopted by the management bodies.
After that, I will also highlight two roles for counterparties.
The fifth role. Conventional designation "Passive creditor". An entrepreneur who, due to the type of business, unwillingness to accept additional costs, disbelief in himself or others, a low level of legal literacy, or for some other reason, is quite superficial in checking the counterparty and their directors.
In the event of disputes or conflicts, the passive creditor refuses the procedures of holding companies and (or) its directors and (or) their beneficiaries accountable. The words “bankruptcy” and “subsidiary liability” are either unknown or simply frightening with unknown parameters that could lead to bankruptcy of the most passive creditor.
And finally, the role of the sixth. Symbol "Active creditor". Active entrepreneur. He knows a lot, and maybe even more does not know, but he is not afraid to try, act, receive and take his own.
In the event of disputes, conflicts and risk, cost and consequences assessments, he will most likely make decisions to bring the matter to bankruptcy of the debtor’s company, and if there is no bankruptcy, there are tools to bring not only the nominee director, but also the hidden beneficiary to subsidiary liability, then he will use them .
The above division is conditional. There are many intermediate roles and forms of their severity.
What I have led all this to.
Given the topic of the material, the figure of the director is of importance in the interaction of actors occupying roles. If it is nominal, then this can affect both the choice of the behavior of the director as a manager or beneficiary. And importantly, the choice of lender behavior.
The choice of behavior, in turn, will depend on the legislation and arbitration practice that develops on this occasion.
For example, at the moment there is a tendency and possibility to hold accountable not nominal directors, but beneficiaries, even hidden ones. Although this does not automatically lead to the complete release of any directors, subject to their recognition as nominal from liability. Nevertheless, this can be a good help.
But it seems to me that this is not even the main thing. In a situation, if the creditor knows that the director is nominal, then he can initially collect the necessary information and documents that would unambiguously indicate a real, albeit explicit, at least hidden beneficiary. Accordingly, it will be he who will have more opportunities in a dispute or conflict than the beneficiary. But whether the beneficiary learns about this, using the nominee director, but the occurrence of the conflict remains a question.
Therefore, there is benefit, but for everyone it will be their own. Try, without waiting for the high point, to find out yours.
March 28, 2018
Vitaly Vetrov
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