How the dispute between Deripaska and Chernukhin over the Trekhgornaya manufactory can be resolved under Russian law
As you know, the High Court of London considered the dispute between the former head of VEB Vladimir Chernukhin against the oligarch Oleg Deripaska, the latter was ordered to pay more than $ 92 million for violating the terms of the shareholder agreement. The decision of the London court was based on the following main findings:
1. Chernukhin was recognized as the actual shareholder of Navio Holdings (the company owner of the Trekhgornaya manufactory) despite the fact that officially 50% of the company was registered with his former common-law wife Lolita Danilina.
2. A shareholder agreement was concluded between Deripaska and Chernukhin containing Deripaska's obligation to redeem from Chernukhin a fifty-percent stake for $ 100 million.
3. The oligarch did not fulfill the indicated obligation. At the same time, Chernukhin was ousted from the business by force.
Under what conditions could such a case have been initiated in a Russian court and what could be the prospects for the parties?
There is reason to believe that the outcome of the proceedings could be diametrically opposed.
Note that in accordance with subparagraph 7 of paragraph 2 of Article 1202 of the Civil Code of the Russian Federation, internal relations, including relations of a legal entity with its participants are determined on the basis of the personal law of the legal entity. Therefore, the dispute in question would fall under the jurisdiction of a Russian court only if it were a dispute between participants in a company created and registered under Russian law.
The first difficulty that the plaintiff could encounter was leaving the claim motionless and then returning it to the applicant, since the lawsuit was filed by a person who had not documented (information from the register of shareholders) his status as a participant at the time of the conclusion of the shareholder agreement. From the provisions of Article 32.1. The Federal Law “On Joint-Stock Companies” implies that the shareholders of the joint agreement may be its shareholders. And by virtue of a direct indication of the law, a shareholder agreement is mandatory only for its parties. Most likely, a separate requirement in the lawsuit should be to claim the shareholder registered in the register on the date of the parties ’agreement (Lolita Danilina), and if there was a transfer of rights to shares to third parties, then to the entire subsequent chain of shareholders, the recognition of rights shareholder.
In this case, it will be necessary to justify the court the combination of two different requirements for different entities in one proceeding. Perhaps the consideration of the first requirement (on recognition of the right to shares) should precede the presentation of the second (on the obligation to pay cash in connection with the violation of the terms of the shareholder agreement).
What substantive arguments can the plaintiff bring in confirmation of the actual ownership of the block of shares? We believe that this could be the following arguments: the actual incurrence of material costs for the acquisition of securities, the actual exercise of the rights of the shareholder, the perception by the third parties of the applicant as the actual shareholder (this, in particular, the fact of concluding a shareholder agreement). A successful result can be achieved if there is sufficient evidence, convincing written and other evidence (for example, video recordings of general meetings, correspondence indicating the voting position at general meetings, etc.) confirming the above circumstances.
It would also be necessary to establish the right holders of the block of shares, if Danilina alienated him to third parties, in order to declare these persons as defendants. At the same time, bona fide purchasers may raise reasonable objections that there are no grounds for satisfying the requirements (Article 302 of the Civil Code of the Russian Federation).
One of the obvious objections that the defendant could have brought as a basis for refusing to satisfy the stated requirements is that the plaintiff missed the statute of limitations.
What substantive arguments can the defendant bring to invalidate the terms of a shareholder agreement? From examples of judicial practice, we see that often such arguments are:
Indication of the inadmissibility of limiting the legal capacity of a party to the agreement (clause 2 of Article 49 of the Civil Code, Article 22 of the Civil Code);
Non-compliance of the terms of the agreement with the charter of the company;
An indication of the inadmissibility of limiting the powers of the owner to own, use, dispose of property belonging to him (article 209 of the Civil Code of the Russian Federation);
Creation by the agreement of obligations for persons not participating in it as parties (for third parties) (clause 3 of article 308 of the Civil Code of the Russian Federation);
Conclusion of an agreement by an unauthorized person.
Until 2014, courts often recognized shareholder agreements invalid because of their inconsistency with the law or constituent documents of the company (see, for example, Verny Znak company case No. A40-140918 / 09, Megafon company case No. A75-3725-G / 2005, the case of the company "Russian Standard" No. A40-62048 / 06). However, now the situation has changed, and it is not worth counting on the fact that these arguments will be easily accepted by the courts. When interpreting the terms of corporate agreements and assessing their compliance with the law, courts are often guided by the principle of freedom of contract (Article 421 of the Civil Code of the Russian Federation), as in the case of LeOl company (No. A45-12229 / 2015), where the defendant was able to justify the inclusion of even those conditions into the contract which are not directly specified in the law, and to uphold the validity of the agreement between the parties.
We believe that the defendant’s argument that the concluded shareholder agreement was concluded without involving a shareholder indicated in the register of securities owners and would be contrary to article 308 of the Civil Code of the Russian Federation could become the most promising as a justification.
The defendant may also think about substantiating the position that the agreement is not a corporate agreement, but a preliminary share purchase agreement, the terms of which enter into force upon the transfer to the plaintiff of the shareholding of the owner of the Trekhgornaya manufactory. Since this condition did not occur, the deadline for concluding the main contract stipulated by the preliminary contract has expired, there is every reason to talk about the termination of the obligations of the parties.
As you can see, the prospects for meeting the requirements of the former head of VEB to the oligarch Deripaska in the Russian jurisdiction are quite controversial, despite the fact that in recent years, Russian law and judicial practice have taken a huge step towards the recognition and protection of corporate contracts, including shareholder agreements.
December 19, 2018
Galina Korotkevich
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