Issues of corporate governance in Russian companies. Corporate issues Notice of holding the annual general meeting of shareholders of the joint-stock company "arkhangelskgrazhdanrekonstruktsiya"

A high degree of concentration of ownership in large and most medium-sized Russian companies changes the mechanisms of functioning of the corporate governance system in comparison with countries with a dispersed ownership structure, primarily the United States. In Russia, the main task of corporate governance is not to ensure effective control over hired management by small shareholders, but to build relationships between controlling (or very large) and minority shareholders.

The state of corporate legal relations in any country includes such aspects as the state of the regulatory framework and the practice of its application. In recent years, significant progress has been made in Russia in the field of creating legislative measures aimed at protecting the rights and legitimate interests of participants in corporate relations, regulating the securities market, delimiting the powers and responsibilities of corporate management bodies, etc. At the same time, law enforcement practice reveals the need for further improvement of the current legislation, development of standards and rules for regulating the sphere of corporate governance.

Based on the analysis of data from scientific studies conducted by various organizations, and in accordance with the information and analytical materials of the Ministry of Economic Development of Russia, the Federal Financial Markets Service of Russia and the Supreme Arbitration Court of the Russian Federation, the key and most common problems in the field of corporate governance in Russian companies, in addition to ensuring compliance with corporate law, can be divided into four main sections:

Implementation of shareholders' rights and equal treatment of shareholders;

Powers of the board of directors and independent directors;

Disclosure practices and transparency;

Related party transactions and affiliates.

The solution of these problems will become a determining prerequisite for increasing the investment attractiveness of Russian corporations in particular and the investment image of Russia as a whole.

Implementation of shareholder rights and equal treatment of shareholders

The problems of corporate governance, manifested in the largest Russian companies, are concentrated around conflicts between minority shareholders, on the one hand, and controlling large shareholders, on the other. This means that in order to solve them, it is advisable to go beyond the classical theory of corporate governance based on the conflict between shareholders and corporate managers.

The issue of shareholder agreements, in connection with which many corporate conflicts arise, has not been properly reflected in Russian legislation. In addition, a shareholder agreement concluded in accordance with foreign law may be declared invalid by a Russian court on the grounds that it contradicts the “public order” of the Russian Federation.

It should also be noted that there is such a phenomenon as corporate blackmail, which is called greenmail in foreign practice. Greenmail is the process of acquiring enough shares of a company to threaten a hostile takeover and then selling the shares back to the company at a premium price 1 . The definition of the concept of corporate blackmail in domestic science is in many respects similar to the Western one and includes a set of measures taken by one or more minority shareholders aimed at creating a threat to the stable development of a joint-stock company in order to force it to buy out a block of shares belonging to such shareholders at a price exceeding its market value 2 .

One of the main techniques used in corporate blackmail is the maximum possible destabilization of the company's normal business activities. To do this, numerous lawsuits are used to challenge the decisions of the governing bodies of the corporation, initiated, as a rule, either by existing minority shareholders who entered into an agreement, or by the aggressor himself, who became a shareholder by acquiring a minimum stake in the company. The practice of corporate conflicts in Russia also indicates that the acquisition of a small stake in a company may be due to the desire to gain access to the company's internal information with its subsequent use for corporate blackmail or illegal takeover.

It is also necessary to note the problem in the implementation in practice of the rights of shareholders to receive part of the company's profit in the form of dividends, since the presence of even a significant net profit does not at all indicate that dividends will be paid. The adoption at the general meeting of shareholders of a decision to declare dividends, as a rule, depends on the will of major shareholders, which, in turn, due to the latter's unwillingness to share part of the profit, leads to infringement of the rights of minority shareholders. For the so-called withdrawal of dividends, cross-share ownership schemes, various ways of underestimating the company's net profit, etc. are used. All this violates the rights of shareholders to receive income from their participation in the company and contradicts the essence of the joint-stock form of entrepreneurship.

Powers of the board of directors

and independent directors

The current practice of boards of directors in Russian companies is largely associated with a high concentration of ownership and the direct participation of large owners in management. Foreign experience in organizing the work of the board of directors is based on an analysis of the activities of companies with a dispersed ownership structure (for example, the United States), and provides for the transfer of control and the right to make key decisions to members of the boards of directors who are not connected by material interests with management - independent directors. Obviously, simply transferring such a model of control to an environment where the CEO is often also the controlling shareholder is not a solution to the problem.

It should also be noted that a characteristic feature of the Russian legal concept of the independence of the board of directors is its focus primarily on regulating the participation of a member of the board of directors in decisions on transactions with interested parties, while there is a much larger range of issues requiring independent decisions from members of the board of directors. Considering that independent directors strengthen the control function of the board of directors, this becomes especially important in the Russian context, where there are very close relationships between managers, controlling shareholders and members of the board of directors, and there are no clear boundaries defining their responsibility.

In addition, Russian legislation does not contain provisions on equal treatment of the board of directors towards shareholders. In practice, there is a widespread misconception that board members should be most loyal to the group of shareholders who nominated them. As a result, board members make decisions based on the interests of controlling shareholders to the detriment of other shareholders, while they are required to represent all shareholders collectively, and not just the interests of the group that influenced the election results.

Disclosure Practices

and transparency

An important factor in improving corporate governance is the disclosure of information about the activities of companies. According to several annual studies of the information transparency of Russian companies conducted by Standard & Poors since 2002, the average level of transparency of public companies as a whole is increasing. The transparency index, based on the average disclosure rates of the largest public Russian companies, increased from 34% in 2002 to 56% in 2008, and coverage increased from 42 to 90 companies, mainly as a result of public offerings of companies' shares.

However, positive changes do not apply to all companies and are generally driven by market incentives or foreign exchange listing requirements. The dispersion of information disclosure indicators by individual companies remains significant - the scores of companies in 2008 vary from 78% for the first company in the sample to 28% for the last one. A significant proportion of large public companies (about 27%) have low or very low disclosure standards compared to similar international companies. The significant difference between disclosure levels across companies reflects the fact that some companies strive to meet the disclosure standards of leading international companies, while others simply meet the minimum requirements.

One of the most significant is the problem of disclosure by companies of information on the structure of share capital. Companies themselves often do not have information about the owners of securities. Accounting for rights to securities is carried out by both registrars and depositories. As a result, the company and its shareholders can learn about the change in the composition of shareholders only during the preparation of the general meeting of shareholders, which prevents regular disclosure of information on the capital structure.

The issue of disclosing information about the beneficial owners of Russian companies is extremely acute, the solution of which requires a significant expansion of international cooperation on the regulation of offshore business. It should also be noted that in the practice of their work in Russia, foreign institutional investors do not always follow their own insistent requirement to disclose information about shareholders.

There is no unequivocal solution to the issue of using insider information. Thus, the law on the securities market contains the concept of "official information" and introduces a ban on its use. However, there are a number of shortcomings in the law:

The fuzziness of the definition of inside information, which does not contain all the necessary features that characterize insider information in the stock market;

The absence for the majority of persons who have insider information of a ban on its use and transfer to third parties.

In particular, the law does not classify professional participants in the stock market, members of the board of directors, issuers, appraisers, auditors as insiders;

The absence of legal prohibitions on the use of insider information when making transactions at someone else's expense and on providing recommendations or inducing third parties to enter into transactions with securities.

One of the important factors for further improving the volume and quality of information disclosed by Russian companies on the ownership structure, remuneration of top managers, major transactions and transactions with interest is the transition of Russian enterprises to International Financial Reporting Standards (IFRS), in accordance with which this information is included in company's annual report.

The need to switch to IFRS is explained by the fact that international standards are dictated by clear economic logic and allow obtaining more complete information about the management of a company than Russian accounting standards, and make it possible to compare with similar foreign companies.

Interested party transactions

and affiliates

Along with large transactions, a variety of special transactions regulated by corporate law are transactions in which there is an interest. The establishment of a special procedure for concluding such transactions is caused by the need to protect the interests of shareholders, since as a result of such a transaction, a conflict of interests of the person concerned and the company itself or its shareholders may arise.

An interested party transaction is defined as a transfer of funds or liabilities between affiliates, whether or not a market price is set. Parties are considered affiliated if one party is able to control the other party and exercise significant influence over the other party by making financial or current decisions for the company.

One of the problems at this stage is the fact that the list of interested parties provided by the law on joint-stock companies does not include a number of officials with authority, such as the deputy general director, chief accountant, directors of representative offices and branches (if the latter are not members of the management board). ).

In addition, the concept of affiliated persons in Russian law is enshrined in the Law of the RSFSR dated March 22, 1991 No. 948-1 “On Competition and Restriction of Monopolistic Activities in Commodity Markets” and is focused primarily on the goals of antimonopoly regulation and protection of competition. An analysis of the application of the rules on affiliates shows their insufficient effectiveness for the purposes of corporate law. Despite the breadth of signs of affiliation established by the above law, among them there is no clear indication of the affiliation of persons holding managerial positions in the corporation with this corporation, and the affiliation of individuals who do not carry out entrepreneurial activities.

The decision to approve an interested-party transaction is made by a majority vote of the shareholders participating in the general meeting (with the exception of the votes of persons interested in the transaction). An interested party transaction does not require the approval of the general meeting, if the terms of such a transaction do not differ materially from the terms of similar transactions previously concluded with the same person in the ordinary course of business before it was recognized as an interested person. At the same time, the legislation does not contain a definition of the concept of “ordinary economic activity”, which creates certain prerequisites for abuses in this area by insiders.

The Board of Directors has the right to make a decision on the approval of transactions with interest, if the approval of such transactions is not within the competence of the general meeting of shareholders. Legislation establishes different requirements for voting on such matters, depending on the number of shareholders in the company. However, in practice, the relevant rules for approving an interested-party transaction are not always observed. There are many reasons for this, including the fact that the board of directors and shareholders are not always aware of the participation of interested parties in the transaction and that insiders hide their affiliation and their own interests in the transaction. In addition, under the influence of special relations between the parties to the transaction, they may not be made in accordance with market prices, which, for both controlling shareholders and insiders (for example, managers), can become a mechanism for obtaining personal benefits at the expense of other shareholders.

Another important aspect is the materiality of such transactions. Some related party transactions can be easily identified by their nature, while others are more difficult to identify, especially if they are carried out with the participation of offshore structures. If it is not clear who actually owns the shares, then it is impossible to determine whether the parties to a particular transaction fall into the categories described in the law on joint-stock companies. Thus, the problem of disclosing information about the structure of the company's share capital and beneficial owners is significant not only in terms of ensuring transparency, but also in relation to related party transactions.

Considering the problems of corporate governance in Russian companies described above, it seems appropriate to analyze their occurrence depending on the availability and compliance with relevant norms and standards both at the legislative level and as part of recommendations for improving corporate governance practices (Table).

The table shows that most of the problems in the field of corporate governance are associated primarily with non-compliance with the principles of corporate conduct laid down in existing codes 1 , as well as with the lack of necessary and effective norms in Russian legislation.

Based on the analysis of corporate governance practices in Russian companies and the emerging system of legal regulation, it is advisable to focus on improving the corporate governance system in the following main areas:

Development of corporate legislation in an evolutionary way as needed;

Improvement of legislation (adoption of new acts and elimination of existing gaps) in those areas that are beyond the scope of effective regulatory regulation (related party transactions, affiliates, conflicts of interest, reorganization, beneficial ownership, etc.);

Improving the Code of Corporate Conduct of the FCSM of Russia, taking into account global trends in business practice and the specifics of the Russian corporate governance model;

Legal enforcement of proven provisions of corporate governance codes, including professional and ethical standards for the activities of members of boards of directors;

Acceleration of the process of transition of Russian companies to international financial reporting standards;

Stimulation of independent activities of subjects of corporate governance, including the development of self-regulation institutions, voluntary adoption of codes, etc.

Thus, the main recommendations for improving the standards and norms of corporate governance are, first of all, to further improve the law enforcement practice, as well as the quality of the rules established by law, since the situation in Russia is characterized by a relative weakness of law enforcement mechanisms, which is to some extent due to the high concentration of property rights . One of the most important aspects concerns the need to maintain a balance between incentives for controlling shareholders and protecting the rights of minority shareholders. Gradual improvement of the legislative framework, including through the harmonization of Russian rules with similar norms of international legislation, can play a significant role in this regard. In addition, it is advisable to fix a number of norms of a recommendatory nature of corporate governance codes at the legislative level and introduce appropriate amendments and additions to the Code of Corporate Conduct of the FCSM of Russia.

By asking this question, you can understand whether you are dealing with a professional. A pro who is in love with his job will see a lot of new opportunities in such a project and will agree to organize a non-standard holiday. Although organizing such an event is not easy, but at the same time, it is very interesting. A true professional will light up his eyes, and he will not miss this opportunity. For all the wishes and ideas of the customer, the event organizer asks many clarifying questions in order to understand the needs, expectations, taste, portrait of the audience that will be at the corporate party. The collected information will help to develop an individual author's concept of the event. But the desire to immerse yourself in a unique project is not enough. The contractor must already have experience in organizing non-standard events so that the customer does not find himself as a guinea pig. So the next question is a must.

Tell us about your experience in creating individual projects.

Ask specifically about the implementation of extraordinary concepts, unusual venues for events, original ideas embodied. Based on what and how the event organizer says when answering this question, what he pays attention to, we can conclude about his experience in this area, how diverse the implemented projects are, whether there is a place for creativity in them.

How do you see our corporate party?

This question helps to determine how the contractor understood the customer's expectations, felt the mood. A good organizer always has ideological blanks in reserve, which he can immediately offer to the customer after listening to his wishes: throw in the concept of the event, ideas on the style, format of the corporate party. If you need an original event, and the organizer offers template, standard themes and solutions, it is better to refuse his services - you are unlikely to get an individual approach to the holiday from him.

We have our own decoration contractors (catering, musical accompaniment, etc.). Are you ready to work with our experts?

The organizers have their own team of professionals, as well as partners in various fields that they can use in a particular project. But this does not mean that you need to work only with them. The customer has the right to ask to connect other professionals. True, in this case, the responsibility for the work of third-party contractors will lie with the customer. If the contractor refuses to cooperate not with “their own”, this is a reason to think about whether to cooperate with him.

Do you have to order a turnkey corporate party or can you choose individual services?

This question will help determine whether other contractors will be required or whether all the work on preparing the event can be concentrated in one hand. Event-agencies working both on a turnkey basis and ready to provide certain services - 50 to 50. Which option is preferable - each customer determines for himself.

What is the size of your commission and how transparent is the estimate of the event?

The estimate should be clear and transparent for customers. When contacting an agency, you need to remember the main thing - professionals take only payment for their work, they openly announce the amount of remuneration to their customers and prescribe it in the contract. All other prices indicated in the estimate of the event are the real market prices for a particular service. True, some unscrupulous eventors are trying to “get rich” on the customer and inflate the cost of the services of contractors, whom they involve in organizing and holding the event. For example, they sell artists, photographers, videographers for more than they actually cost. You can check the estimate yourself by directly contacting the contractors and finding out their prices.

What is the minimum budget for the corporate event you are working with?

All event organizers have a minimum event budget that they are willing to work with. And the higher the authority, the fame of the eventor, the more and richer his professional experience, the higher the "entry threshold". Although even the most famous agencies can agree to a project with a small budget, if it is interesting. Therefore, it is better to find out in advance the level of the organizer's expectations and correlate it with the available budget for the corporate event.

How to combine business with pleasure and solve certain tasks of the company with the help of a corporate party?

Today, most corporate customers do not just hold a holiday for the team, but try to achieve specific corporate goals with the help of the event: to unite the team, increase corporate spirit and loyalty, introduce and bring together employees from different departments, etc. Therefore, if the task of holding a corporate party is not just to relax and have fun, ask the event organizer how to make the event effective, what solutions he can offer to achieve the customer's goals.

We want to keep our event confidential. Is it possible to provide for this in the contract?

If you do not want to make a corporate holiday public on the Internet, you need to discuss this issue with the organizer in advance and indicate a non-disclosure clause in the contract. However, consider allowing the contractor to use certain pieces of the project to add to their portfolio - such as photos of décor, stylized concept, themed artist numbers, etc.

The questionnaire for working with event organizers was compiled by Valeria Nezhinskaya

A corporate lawyer is a lawyer who will help you in solving problems related to the intricacies of corporate law. Corporate law is one of the sections of civil law that combines legal norms that regulate the legal status, organization and activities of business entities (entrepreneurs).

Corporate disputes stand out in a separate niche, since they have a whole list of features that are unique to them.

In jurisprudence, issues of corporate law are divided into two main groups, determined by the purpose of the impact:

• disputes related to the rights of shareholders in a corporation;
• disputes related directly to the interests of the economic society itself.

However, regardless of their group affiliation, in order to resolve them, it is necessary to involve an experienced lawyer who knows the current issues of corporate law.

More often than others in the practice of law there are disputes related to the violation of the rights of shareholders. They may relate to the right to receive a share of the profits of a joint-stock company or the right to obtain reliable information about the activities of the company.

Violation of the interests of society occurs when concluding unprofitable transactions related to the alienation or acquisition of property, which.

Mikhail Novikov - corporate lawyer

Lawyer Mikhail Novikov provides the following services related to corporate law, protection of the rights of shareholders or members of business entities:

• representation of interests at general meetings and in procedures for recognizing transactions as invalid or violating the law;
• recovery of losses caused by the actions of the company's management bodies;
• contesting major transactions and/or related party transactions;
• organizing and conducting acquisitions, mergers, withdrawal of capital and company assets;
• development of a strategy to protect against raiding.

Many years of experience in successfully managing corporate disputes in business, a thorough knowledge of the regulatory framework and all the subtleties of corporate legislation, a comprehensive solution of corporate issues, allow lawyer M. Novikov, as a specialist, to cope with tasks in the interests of his principals and conduct competent consultations.

The cooperation of a lawyer with a client is based on a contract for the provision of legal services, in which the parties agree on a specific one. Work with each client is based on trust and confidentiality, because for a lawyer the interests of the client are paramount.

Corporate matters- this is an activity related to the disposal of the rights to a share in the authorized capital of a business organization. Corporate rights include the right to participate in the management of a business organization, the right to receive dividends, etc.

In turn, the exercise of the rights associated with your participation in economic organizations (LLC, PE, PrJSC, PJSC, etc.) requires appropriate registration. In addition, decisions are often made collegially by several or many owners of such an economic organization.

The process from creation to maintenance and, possibly, further liquidation of an economic organization should be handled by professionals.

Here we are ready to help.

Registration/liquidation of legal entities and individual entrepreneurs

We are ready to provide you with services for registering a legal entity of any organizational and legal form, from a Limited Liability Company to a Public Joint Stock Company.

Naturally, at the stage of creating a legal entity, there are a lot of questions. Issues such as the choice of organizational and legal form, management structure - this is where it all starts.

In addition, we are ready to register you as an individual entrepreneur, protecting you from the need to communicate with government agencies.

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Amendments to constituent documents

The most frequently asked questions to us are questions regarding corporate movements in the company, which require amendments to the constituent documents.

Such changes, for example, can be: changes in the composition of participants (sale of a share, withdrawal, exclusion, admission of new participants), a change in the location of the enterprise, a change in name, changes related to the optimization of corporate governance, etc.

In this case, we prepare all the necessary package of documents, saving you from unnecessary costs and risks.

Our services include:

• advising on amendments to constituent documents;
• development of all documentation, approval;
• submission of documents to the registration authorities;
• representation of your interests during the registration of a new edition of constituent documents.

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Full support of business activities of enterprises

We provide complex subscription services to our clients. Complexity lies in achieving the optimal ratio of the specialization of each of our lawyers and their work in a team aimed at solving your problems.

The provision of services is carried out on the basis of a subscription legal services agreement. You choose the scope of services and their cost depending on your needs.

The range of legal services to support business activities includes:

• litigation work;
• accompaniment of inspections and appeal against decisions of state authorities;
• preparation of contracts, draft letters, statements, proposals, protocols, written demands, complaints;
• providing advice in all areas of legislation;
• other services.

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Obtaining permits/licenses

Despite the desire of the government of Ukraine to deregulate business activities, today there are a lot of permits and licenses that the company must obtain.

The process of obtaining permits is to verify the ability of the enterprise to meet the requirements for a certain type of activity.

Considering that in Ukraine there are many types and subtypes of permits, we are ready to help you in resolving any issues when obtaining licenses or permits.

We are ready to help in obtaining the following types of permits:

• security activities;
• Customs Broker;
• tour operator activity;
• scrap metal operations;
• trade in alcohol, tobacco products;
• construction and architecture;
• carrying out works on land management, work on land assessment;
• design, installation, maintenance of fire-fighting facilities;
• mediation in employment for work abroad;
• production of discs for laser reading systems;
• activity with precursors;
• work permit for foreign citizens;
• registration of a loan with the NBU;
• NBU license for investing abroad;
• and others.

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Contract work

We provide services for comprehensive support of the contractual process with your counterparties.

The complexity of services consists in full support from the beginning of negotiations, the development of a draft contract until the moment of its conclusion and control over the fulfillment of its conditions.

Considering that there are quite a few types of contracts, most of them contain the terms of contracts of different nature, we do not recommend using templates downloaded from the Internet in your activities - as practice has shown, this can cost huge losses due to an incorrectly set comma. It will be much cheaper as a result to turn to competent lawyers.

Given the vast judicial experience of our lawyers, in the contractual process, we take into account all controversial points in favor of your interests.

In addition, we take into account the specifics of your company's work.

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