Companies protect minority shareholders from the curious

18 January for working in the field of corporate disputes lawyers may be a historic day: at the same time and not saying a word, just two courts - the Supreme Arbitration and Constitutional - figured out how to resolve conflicts that arise on the provision of information by companies to their shareholders. Experts have indicated that explanations contain internal contradictions, and many aspects remain unclear and could lead to new conflicts. Good and evil. The Supreme Arbitration Court of Russia (EAC) states that the shareholders (as well as members Ltd.) is not required to disclose the goals and motives that guide, requiring the provision of information about the company. For the "sanctity" of the principle of transparency advocates and the Constitutional Court of Russia: "As part of the legal status of participants of the company in relations with the company is entitled to information about the joint-stock company, which is provided by the Civil Code of the Russian Federation of the right of participants of the economic society to be informed about the activities of the society ". But at the same time the higher courts are allowed to refuse to grant the shareholder materials found to be abusing his rights. For example, if confidential information requiring security holder is an actual competitor (or its affiliate), and provide the required information may harm the commercial interests of the company. EAC also considers unfair party, who has repeatedly said the requirement to provide the same has already received the documents required relating to past periods of materials, "clearly does not represent value in terms of their analysis." Russian Constitutional Court also suggests the need to balance the legitimate interests of minority shareholders and the companies themselves. Therefore, management of joint stock companies shall have the right to object to the requirements of the shareholder, if, with his leadership, the point of view, the nature and amount of requested data indicate the presence of signs of abuse of the right of access to information, including "due to the lack of a legitimate interest "in obtaining it. The ban is also possible when there are other factual showing of bad faith, circumstance. Abuse of constitutional review body considers not only the actions in the interests of competitors, but also "the deliberate creation of objective difficulties" (eg, when specifically requested by a large amount of copies in order to hamper the activities of joint stock companies). The purpose of such an explanation - to protect the company from people who use the status of the shareholder to obtain relevant information in the interests of competitors, traders and other unscrupulous parties, and sometimes hostile takeovers. In this case, most often purchased tiny package, even one share. For example, the Russian Constitutional Court considered the question on the application of OJSC "Oil Company" Rosneft "," a process that leads to Alexei Navalny - one of the most "notorious" shareholders, the leader of a social movement against corruption. Last year alone Alex Bulk (excluded for unworthy actions of the "Yabloko" party) has filed at least six lawsuits against various public companies (including the "Gazprom", "Sberbank of Russia," etc.). Crime and punishment. Experts point to the ambiguity of the wording clarification higher courts. "Prove abuse someone of the right is extremely difficult, arbitration courts only rarely justify their decisions by this circumstance, - says Mikhail Fighters, managing partner of law firm Rightmark group. - In general, abuse of the right is a category of evaluation, that is, the court evaluates all the arguments and evidence of the parties on their inner conviction, while not having any clear criteria, that is an abuse of right and wrong. So protect yourself from the shareholders, using information obtained from the society in the interests of other persons, it is extremely difficult - actually existing legal framework for this exists. " According to Mikhail Boitsova, abuse of shareholders can be countered by a formal legal action - society may refuse to provide information, offering to go to court: "Consideration of the case to the realities of today will take at least 3-5 months. Maybe it's time for information obsolete and lose value. There are a number of similar methods of struggle. " However, the attorney law firm «S & K Vertical" Mikhail Ilyin warns of risk of a company and its executives by refusing to provide information: "The list of actions that can be regarded as an evil-use is open, so stock company each time will have to prove reasonableness of withholding information. But if the shareholder abuse is proven, the company will incur major administrative responsibility. " By law, the act involves a legal person a fine of from 500 to 700 thousand rubles, and personally to the responsible officer of the company - even up to 30 thousand In addition, the top manager can be disqualified for up to one year - is deprived of his post and included in a special "black list" of the Russian Interior Ministry. During the year, it may not be to assume leadership positions in any Russian organization. Statistics on cases FSFR in Russia as a whole will not be published, but last year only in the Northwestern Federal District was recorded more than 300 violations of legal requirements for disclosure of information by issuers with the preparation of the protocols on administrative violations. The total amount of fines exceeded 50 million rubles. Accuracy - courtesy of the shareholders. Bona fide shareholders, Mikhail Ilyin recommends that you specify the purposes for which information is requested: "In any case of can refuse to provide documents, citing the fact that this information is of no value to the shareholder. However, the protection of his rights in bankruptcy court or the Federal Service for Financial Markets indication in the request for the purpose of obtaining information will greatly facilitate the involvement of the company to justice. " May be considered unfair and journalists working under the "roof" of the status of the shareholder. "Such actions may harm the company, contrary to the objectives of the legal structure, as well as the nature of relations between the company and shareholders", - says Mikhail Fighters. Companies themselves are also considered vague explanations YOU. According to Ella Tomilina, Deputy General Director for Corporate Relations, OJSC "North-West Telecom" (more than 30 thousand members), to assess how they may affect the relationship between the issuer and the minority shareholders, it is not possible: "We can talk about an infinite number of variety of situations. In this case, what documents and under what conditions can request and receive shareholders, in this letter is not clearly defined. For each situation will be solved by the court. Enough to correctly count the jurisprudence of resolving such disputes is to turn out for a long time, "- says a top manager. The press service of VTB Bank (according to the IPO in 2007, shareholders are more than 120 thousand individuals and legal entities) have noted that the purpose of providing information about the company is in the first place, providing shareholders an opportunity to assess the effectiveness of their investments. "Then, as part of the minority, obviously, evil-use rights on the use of information obtained" - recognize the bank. Findings will help protect YOU just bona fide shareholders against abuses by companies already. Thus, limited right to require the requesting materials rigid specification - for example, specify the exact date and the number claimed by the protocols or other documents. After all, they can and they do not know. The same "Rosneft" motivated by his refusal to grant Mr. Navalny copies of the minutes of board meetings for 2009 in its lack of full details of the add request documents. Copies without advance payment. But another explanation is debatable YOU: Recognizing the right of corporations to charge for copies of documents requested, the highest court indicates the illegality of their condition provision making the appropriate amount. That is "in the morning - chairs, in the evening - the money," even if the money is received in the last copies of requested documents, "chair" is still to be delivered. According to Mikhail Ilyin, a company can be forced to recover from the shareholder, such costs only in court, especially since the practice of offsetting debt through dividends do not. Agrees with him and Michael Warriors: "We must understand that this amount is so small that no one company will not sue for it." YOU, however, allows for the exclusion: the obligation to pay an advance as a condition of obtaining copies may be provided by the charter company. According to experts, this is the most appropriate way to ensure the payment of expenses, but now these provisions are interpreted ambiguously. For example, the charter of JSC "North-West Telecom" contains an identical federal law, rule of law shareholders' receive copies of documents for a fee, "but Ella Tomilin convinced that he can demand payment in advance. The charter company "Gazprom" and "Rosneft" also refers to "fees charged for providing copies of" - that is, there is no condition of advance payment or the right not to give the documents to make money. And the statute of "Transneft" there is not a word about charging. The Supreme Arbitration Court of Russia also pointed to the right of shareholders without prior notice or coordination in introducing their own, including using personal technology tools (hand-held scanner, camera, etc.), make copies of documents. Until now, some companies, employees repaired the various obstacles wishing to photograph open for reference materials.