Trust management of shares in an LLC: scope of rights in a corporate dispute

Trust management of shares in LLC. Scope of rights in a corporate dispute. Arbitrage practice.

Owners of shares in an LLC have not only property, but also corporate rights, directly related to the status of a member of the company. For the purposes of efficient use of property, a share can be transferred to trust management - then, as a general rule, the trust manager will be engaged in the implementation of corporate rights. The rights of the trustee can be limited by the agreement, however, without doing this, in the case under consideration, the participant of the company completely lost the opportunity to participate in its activities, since only the trustee could use corporate rights.

Case plot:

The Participant is the owner of a 20% stake in the Company. At the same time, between the Participant and the Trustee, the Agreement on trust management of the Participant's share has been concluded. In the Unified State Register of Legal Entities, in the manner prescribed by law, an entry was made about the Trustee.

According to the Trust Management Agreement, the Participant transferred 20% of the share in the Company to the Trustee, and the Trustee undertook to manage the share transferred to him in the interests of the Participant.

The trust management agreement gives the trustee the right to receive information about the activities of the company, get acquainted with the documents (contracts, financial statements, others).

A member of the Company filed a claim with the arbitration court for copies of documents and information on the economic activities of the company, indicating that, by virtue of paragraph 1 of Article 67 of the Civil Code of the Russian Federation, he has the right to receive information about the activities of the company and get acquainted with its accounting books and other documentation in accordance with the constituent documents okay.

The Company did not recognize the claims, as it believed that such claims during the validity period of the Share Trust Management Agreement can only be presented by the Trustee, and the Participant is not entitled to independently exercise corporate rights, the implementation of which is entrusted by the agreement to the Trustee.

Having examined all the evidence in the case, the Arbitration Court dismissed the claims.

Judicial act: Decision of the Arbitration Court of the Novosibirsk Region dated May 23, 2021 in case No. А45-2988/2021

Court's findings:

1. The rights acquired by the Trustee as a result of actions for the trust management of property are included in the composition of the property transferred to the Trust Management. Thus, the corporate rights of the Member of the Company were transferred to the Trustee for the duration of the Share Trust Agreement.

2. Direct presentation by the Participant of claims against the Company for the provision of information about the activities of the Company is a violation of the Trust Management Agreement, interference of the owner in the powers of the Trustee.

3. The Arbitration Court came to the conclusion that the Trustee had the right to receive information about the activities of the Company in accordance with the Trust Agreement. Thus, only the Trustee, and not the Participant himself, could exercise the right to apply to the court with a corresponding claim. The claims of the Participant were left unsatisfied by the court.

Comments:

1. In judicial and notarial practice, an approach is widespread, according to which, when transferring a share in the authorized capital of an LLC to trust management, the Trustee can be endowed not only with property, but also with corporate rights of a member of the company. A similar conclusion is directly enshrined in Article 5 of the Law on the Securities Market regarding trust management of shares: The trustee of shares has the right to apply to the court with corporate claims.

2. The powers of the Trustee in relation to the item transferred to the Trust may be limited by law or by agreement. Meanwhile, as a general rule, the criterion for the proper fulfillment of the obligations of the Trustee is his obligation to act in the interests of the founder of the trust or the beneficiary under the Trust Management Agreement (Article 1012 of the Civil Code of the Russian Federation). In the case under consideration, the agreement did not contain restrictions on the Trustee's requesting information about the validity of the company, moreover, such an action was directly attributed to the competence of the Trustee.

3. Since the agreement did not contain any restrictions on the exercise by the Trustee of corporate law, including the need to obtain the consent or approval of the participant, the arbitration court came to the conclusion that for the duration of the trust management agreement, the Participant actually lost their corporate rights due to the inadmissibility of interference with the powers of the Trustee.

4. At the same time, we note that the Civil Code of the Russian Federation does not contain provisions that would prohibit the founder of a department from performing any legally significant actions with the property transferred to him.

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