One should also take into account yet another - not less important- factor that stimulates such demand. As Mr. Shvidler, President of Sibneft, put it, in the course of their development, each oil company had obtained a share of administrative resources and it was the factor that determined a real competition in the oil market18. At the same time, the standardization and mass application of ‘administrative resource’ procedures resulted in the conflicting parties’ use of the same methods (equal supportive figures), which makes either party’s victory illusory. In such a situation, the costs associated with such a corporate conflict become comparable to the actual value of the parties’ assets, which makes civilized negotiations more cost-saving from the economic perspective. That in turn demands for a greater level of protection of property of the parties involved in the given deal and a greater level of economic agents’ transparency (including actual owners of Russian companies, among others).
Finally, there may also exist the third factor of the demand for independent institutions. Many Russian groups (holdings) were actively pursuing reorganization in the 2000, which was caused, apart from other factors, mostly by a fundamental dilemma emerged by 2001: as the completion of ’partnerships’ in the frame of every large group had been over by that time, it necessitated the legal purity or, at least, a greater legalization of the property and income structure. The obvious logical step became creation of offshore holdings (to avoid an additional taxation in Russia), while owners (‘partners’, beneficiaries) ensured control over and protection of their assets through the groups of complex legal structures. All organizational schemes became to formally comply with the law19. The lowered level of the legal risk allowed to make the problem of civilized (genuinely independent) economic institutions a more applied one.
In such a context, ( apart form the political one, which is likely to have its own significance) one should perhaps consider the YUKOS/Menatep case, and there are several aspects in it worth noting:
Given that in 2001 (the data of SCREEN Emitent) the OAO YUKOS’s register contained only nominal holders: OAO Doveritelny i investitsionny bank (controlled by Group Menatep Ltd.) - 59.21%, ZAO Unless one admits ultimately wild options associated with personal threats: for instance a change of the Special Trust Arrangement in favor of other beneficiaries. Under ‘non-market’ takeover we understand any methods different from a classical hostile takeover or a market deal involving the given company’s certain stock.
For more details, see: razvitie sprosa na pravooye regulirovanie corporativnogo upravlenia v chastnom sectore.
Nauchnye doklady, # 148. M., MONF, 2003; Radygin A., Entov R., Mezheraups I. Problemy pravoprimemenia (enforcementa) v sfere zaschity prav aktsionerov. M., IEPP, 2002, among others.
See: Guriev S., Sonin K. Bogatstvo i rost. Expert, 003, # 24, 30 June, p. 40- Kommersant-Vlast, 2003, 2026 January, p. With two exceptions, though: the permanent violation of the anti-monopoly law (according to some estimates, not less than 20% of deals) and transfer pricing (particularly for the purpose of capital export, though practically there is no legal regulation in this particular area).
Brunswick UBS Warburg Nominees - 13.52%, OOO Deutsche Bank- 12.99%, in 2002 (as of June 10), the Group Menatep’s Homepage on the Internet disclosed practically complete data on the company’s control structure.
According to the data, Group Menatep Ltd. registered in Gibraltar controls 100% of YUKOS Universal Ltd. registered on the Isle of Man, which in turn owns 3.54% of oil company YUKOS. Another 57.47% of oil company YUKOS are controlled by Hulley Enterprise Ltd. (a daughter company of YUKOS Uniersal Ltd., Cyprus). Group Menatep Ltd. is co-owned by 6 private individuals (of which four hold 7% each, while another two- 8 and 9. 65%, respectively), while Special Trust Arrangement (the only beneficiary is the head of YUKOS Mr. Khodorkovsky) holds a 50% stock, and some minority shareholders’ aggregate stock accounts for 4.5%. Obviously, it is Mr. Khodorkovsky who exercises the dominant influence in the company (with account of the trust, his share runs up to 59.65%), however, the idea of trust is that formally decisions are made by the Director of Group Menatep Ltd. and trustees, rather than the beneficiary himself.
It is provided that, should Mr. Khodorkovsky be deprived of the possibility to exercise his beneficiary functions (once kidnapped, detained or forced to vote against his will), the voting right is to be assigned to a co-owner of Group Menatep Ltd. appointed beforehand.
Naturally, such motives as the access to the capital market (issuance of ADR) or the Western banks’ pressure in the framework of the global campaign against money laundering (FATF, OECD, EU’s activities, Wolfsberg Principles, etc.) appear insufficient to ensure a complete transparency in the area of beneficiary ownership. Most likely, there is some ‘time’ factor associated with the completion of reorganization of groups (in the wake of privatization and consequent takeovers), building fully legal (protected) asset ownership arrangements and a legal optimization of taxation of benefits. In other words, there should be some period of time after which the risk of loosing acquired (often with abusing civil or criminal law) assets become minimal20. The impossibility until a certain moment to demonstrate sources of the acquired property, including facts of tax dodging, is also fundamentally important, and the majority of Russian groups and companies still are not ready for that. Having competed this stage of corporate development, YUKOS became a pioneer company in Russia in this respect.
Clearly, taking the whole property scheme out of shadow (while tax and financial arrangements are not considered at this point) and creation of a fully legal mechanism of asset protection imply both a lower need in specific friendly relations with bureaucracy and a notable rise in a company’s (its owners and beneficiaries’ independence) of the state and its enforcement agencies. There practically are no such huge private companies and so legally protected company owners in Russia as YUKOS. Hence, the question is to what extent such a strong company fits in the Russian interpretation of the ‘strong state’ ideology.
The qualitative progress in the transparency level (even in the aforementioned context) could not form the cause for concrete enforcement operations against Mr. Khodorkovsky’s group. Rather, it may well happen that the concrete reason should be associated with the whole logic of development of the ‘model company’ YUKOS in the 2000s.
The policy of promotion of a favorable corporate image and an artificial ‘rise’ in the company’s capitalization may testify particularly to the preparation of its sale or a parity international merger21. Given other conditions being equal, many experts believe that the arrival of new, including foreign, co-owners in some Russian companies is just a matter of time, which is determined, first, by the moment when the latter reach a certain value matching their foreign analogues, and, second, by availability of options for investing A completely vulgar interpretation is that there still is a great volume of illegally acquired property that needs to be laundered.
The task of selling a company or a parity merger can be pursued in a different way: for instance, to merge its Russian assets with BP, TNK did not at all need to increase its capitalization and create a corporate image. On the contrary, TNK was known for its negative stand with respect to entering the domestic stock market upon completion of its capitalization. The company’s actual closeness and refusal to allow the public circulation of its stock were proved by a small number of its shareholders, concerns about scandals and corporate blackmail which could endanger its reputation, and unwillingness to use ‘cheaper’ domestic quotations for the purpose of benchmarking. As long as the establishment of a multinational corporation is concerned, one is likely to consider an international industrial group by SUALInternational, Access Industries’ coal assets in Russia and Kazakhstan and tantalum production in Mosambique and Cubam ferronickel production owned by Flemina Family and Partners (UK).
the respective proceeds (for instance, a football team in UK). Some experts believe that already in 2002 at the level of declarations YUKOS has no longer positioned itself as Russian company22.
The YUKOS-Sibneft merger (essentially, the takeover of the latter) announced in 2003 would ensure for the newly established company the 4th...6th place among oil companies worldwide.
At the same time, the task of becoming a’ global leader in the energy sector’ the owners of the new company set before their new company appears hardly achievable without transforming it into a multinational corporation. Most likely, the level of the company’s influence on, and independence of the Russian government (providing its oil output and refinery are located in Russia) become unacceptable. At this point it is worth noting that, according to some sources, despite his protocol positive comments, President Putin was informed of the TNK-BP merger after it actually happened, while his actual attitude to that might not be quite positive. It may be quite possible that it was decided not to create such precedents in the future.
If this version is accurate, the blow at YUKOS and Sibneft’s capitalization makes sense: the national enforcement agencies’ operations (despite of legal grounds, names and prescription of cases) are designated both to teach YUKOS’s owners a lesson on what may not be done under any circumstance and to show to the world that it is not worth dealing with such a ‘dirty’ company. The fall in capitalization in turn lowers the company owners’ interest in selling a part of its stock (needless to say, one can arrange for as many such falls as needed).
It has also become evident that the YUKOS case could not be initiated without President’s informal approval, which can be proved by nearly zero support (protection) of YUKOS on the part of other biggest group (entrepreneurs). The situation also allows a clear understanding of a real value of the so-called Charter of Business Ethics the Russian Union of Entrepreneurs and Industrialists approved on 25 October 2002, which united proponents of ‘universally recognized moral rules and standards’.
All the above, of course, is just an attempt to build some acceptable version of the ongoing events, and time will show ho accurate it is. The first lesson is evident nonetheless: the company that pioneered the public disclosure area, with the most complete (vs. others) and open data on its structure, stockholders and beneficiaries fell the first victim to such a legalization.
At the same time, one should not forget those who, together with other advocates of ‘universally recognized moral rules and standards’, fostered ‘trustworthy’ relations with the national bureaucracy at the federal and regional levels over the whole period of Russian reforms: at all he stages of privatization, capitalizing on GKO pyramid in 1993-98, loans-for shares auctions, allocation of budget resources, and in the credit and finance, banking and foreign trade areas; those who, basing on court’s rulings stripped off enterprises’ assets to the detriment of other stockholders and creditors; those who broke ‘wars of compromises’ by means of ‘submissions’ to the Attorney general’s office, etc. ‘He that leadeth into captivity shall go into captivity: he that killeth with the sword must be killed wih the sword’ (The St. John’s Revelation, 13-10).
A. Radigin Tremasov K. Promyshlennaya politika. Pochemu net investitsiy. -Vestnik NAUFOR, 2002, # 3, p.