2) due to the specifics of the Russian judicial system, evaluation by the court whether the entrepreneurial risk was justified is a highly complicated matter in arbitration proceedings. Both formal legal approach and lack by judges of sufficient economic knowledge prevent objective assessment of the cases where the extent of entrepreneurial risk needs to be determined. Furthermore, legislative regulation of the process of information disclosure in case of a conflict of interests is highly inefficient. Most conflicts are outside the legal sphere, and due to that fact a possibility of bringing of legal entities’ mangers to responsibility will be rather limited;
3) Bringing of beneficiary parties and other persons who can determine the legal entity’s decision-making is a serious problem. In Russia, since early 90s actual owners of a considerable volume of corporate assets have been known neither to the administrative authorities, nor to law-enforcement bodies, which situation can be explained by corruption and personal security reasons. Nor has the situation been changed by new measures related to mandatory disclosure of the information. As regards related deals, instances of disclosure of beneficiary parties are very rare, while such mechanism is the most inefficient in the existing corporate governance scheme;
4) The idea of establishment of a 10-year limitation period as regards lawsuits brought against managers of legal entities is rather dangerous as it can be used both for political purposes and in carrying out of soft re-privatization. Discriminatory bringing to justice of owners of large Russian assets in regions, as well as similar trends in regions is at present a common Russian practice. For the time being, there are no reasons to believe that the proposed legal norm would limit the “inventory” of state instruments employed in redistribution of assets and that it would not be used for the same purposes at a lower level of redistribution of assets (in corporate takeovers).
5.5.5. Change in Rules of Registration of Legal Entities According to the architects of the Concept the main “ailment” of the Russian corporate sector, that is, takeover of corporate assets should be handled by means of amendment of the rules of registration of legal entities. However, unlike the Concept of Development of Corporate Legislation in the Period until the Year 2008 the Concept in question to that extent tends to system-based solutions.
Section Institutional Problems It particular, it is proposed to carry out such upgrading of the system of registration of legal entities as would provide for:
– Introduction of rules of verification of the data required for registration of the legal entity;
– Legislative consolidation of the charter as the only founding document of the legal entities, including unincorporated legal entities;
– Mandatory legal expertise of the content of founding documents as regards compliance of such documents with the legislation (nonstandard charters); development of standard forms of charters;
– Transfer of the function of registration of legal entities and that of keeping of the unified state register to judicial authorities, for instance, to arbitration courts;
– Considerable increase in the amount of the charter capital to a million rubles, while for joint-stock companies, to two million rubles; in founding of the legal entity the charter capital is to be paid up by cash funds;
– A possibility for claiming damage from the legal entity if such damage resulted from a failure to provide or undue provision of the information to the state register of legal entities.
In general, the proposed measures appear to be adequate and meet the existing needs.
However, they will entail considerable costs both on the part of the government and legal entities. Together with measures aimed at raising of responsibility of founders and managers of legal entities and promotion of the rights of founders and shareholders, the above measures will create such an additional pressure on the business as would be excessive and unjustified in the existing economic conditions. Such measures will eliminate both “one-day” firms and a considerable bulk of small and mid-sized businesses. The statement that entities which fail to pay an increase in their charter capital will be able to do business as the producers’ cooperatives, while their founders, as individual entrepreneurs is only partially justified. Formally, they will, but in reality large enterprises which are rendered services to by a large number of small companies give preference to joint-stock companies or, at least, limited liability companies while selecting their counterparties. Consequently, as a result of the status change many companies would lose their customers, consumers etc., which situation is similar either to a loss of business or a considerable drop in business volumes.
Due to the above, introduction of the complex of such measures should be done on a stepby-step basis and in line with the economic situation of Russian companies. Apart from a period of a year or two proposed in the Concept for facilitating such a transfer, increase in the amount of the charter capital of the existing limited liability companies should be accompanied by introduction of mechanisms of reduction of the taxable base by the amount of an increase in the charter capital. Also, payment by installments within the above period is to be provided for. In that case, one can be sure that “a baby will not be thrown away with water”.
Generally, the trend in development of the legislation on legal entities is correct. However, the quality of updating of the Concept, as well as efficiency of subsequent implementation thereof will depend to a great extent on the following:
– Practical experience in the sphere of legal entities’ activities is to be taken into account;
– Mechanisms of implementation of the proposed measures are to be updated to the acceptable level from the practical point of view and be economically justified;
RUSSIAN ECONOMY IN trends and outlooks – There must be such a political will to solution of topical Russian problems which concern ownership as would overcome lobbyists’ resistance on the one side and take into account the public opinion so that a justified compromise could be found, on the other.
5.6. Monopoly Price Regulation in 2008–In monopoly price regulation, the time between revealing a breach of antimonopoly legislation and mitigating the damage caused to customers by a dominant company can sometimes be quite long. For instance, the investigation by the Russian Federal Antimonopoly Service (FAS) of monopoly prices for parking at Moscow air hub airports (Domodedovo, Sheremetyevo and Vnukovo) that was launched in mid-2007 made it possible to reduce the cost of an hour of parking at these airports from 150 to 100 rubles only in May 2009.
There are restrictions on how long the Russian antimonopoly regulator can take to consider a monopoly price case and to pass a decision on it. According to Law No 135 "On protecting competition", a monopoly price complaint can be considered within a month with the possibility of extending this period for two more months. After a case is opened, its investigation has to be completed within three months, after which it can be extended for six more months.
Thus, it can take nearly 12 months from the time a complaint is lodged till the time FAS rules that it is a monopoly price case.
When a monopoly price case is being investigated, in addition to establishing that the company in question has a dominant position on the market, it is necessary to establish the level of costs and profits or the difference between the price in question and prices at a comparable market. Overall, despite the fact that the Russian Federal State Statistics Service records industry-average profitability indices for different types of production, it is difficult to use these data in establishing instances of monopoly prices because a particular production can be represented by a sole producer whose actions can constitute a breach of competition laws. In addition, there is no methodology for establishing the level of economically justified costs and profits.
After an antimonopoly regulator has established that a company charges high monopoly prices, it issues an injunction that sets:
– the amount of penalty;
– behavior requirements such as the requirement to stop abusing one's dominant position, to inform the regulator of a single price rise of more than 10%, to provide one's financial and statistical reports on a regular basis.
After that, a ruling passed by FAS can be contested in court. That is why a ruling by the antimonopoly regulator will have an impact on the market only if it has been upheld by a court or if an amicable settlement has been reached, reducing the amount of penalty and defining measures to be taken to reduce damage to customers.
Legal proceedings in connection with monopoly price instances revealed in 2008 are presented in Table 1.
Section Institutional Problems Table 1.
Violations under para 1 Part 1 Article 10 (monopoly price) identified by FAS in Legal proceedings in 2008–2009 in connection No Company Goods/Services with monopoly price incident 1 ООО Gazprom Dobycha Orenburg Granulated sulfur Ruling was contested, upheld by three levels of (Gazprom Group) courts, came into force 2 ОАО MMK, ОАО Oskol Electrometal- Metal products used to manufacture FAS's ruling was accepted lurgical Combine bearings 3 ZAO Metallorukav, OOO Metallorukav Metal braid for aircraft and rocket en- Penalty was paid, injunction followed, ruling was Trading House gines not contested in court 4 ОАО SUEK, OAO Yakutugol Holding Thermal coal No information available Company 5 ООО Sibuglemet Holding Company, Metallurgical coal concentrate FAS's ruling was accepted ZAO Sibuglemet, ОАО Mezhdurechye, ZAO Mezhdurechye, ZAO OF Mezhdurechenskaya, ZAO OF Antonovskaya, (Sibuglement Holding Company group) 6 ОАО KD avia Office space rent in the air terminal build- Ruling was contested, upheld by three levels of ing courts, came into force 7 ОАО Vnukovo-Invest Parking outside airport terminal Ruling was contested, confirmed by third-level court, came into force 8 ООО Alkoa RUS, ОАО Samara Metal- Aluminum shapes Penalty was paid, injunction followed, ruling was lurgical Plant not contested in court 9 ОАО Yuzhkuzbassugol Coking coal Penalty was paid, injunction followed, ruling was not contested in court 10 ОАО Ruspolimet Nickel alloy ring blanks Penalty was paid, injunction followed, ruling was not contested in court 11 NK Rosneft Motor gasoline, diesel fuel, jet fuel, fuel Ruling is being contested in court oil 12 ОАО LUKOIL Motor gasoline, diesel fuel, jet fuel, fuel Ruling is being contested in court oil 13 ZAO Domodedovo Aerohotel Parking outside airport terminal Ruling was contested, was upheld by third-level court, came into force 14 TD Mechel, OAO UK Yuzhnyy Kuz- Metallurgical coal concentrate Penalty was paid, injunction followed, ruling was bass, OAO Yakutugol Holding Com- not contested in court pany, OAO Raspadskiy Ugol 15 ОАО Gazprom, TNK-BP Holding Petroleum products Ruling was contested and cancelled by third-level court 16 ООО Zhanr Access to cable TV No information available 17 ОАО NK LUKOIL, ООО LUKOIL- Jet fuel Ruling is being contested in court Ukhtaneftepererabotka, ООО LUKOILAERO (LUKOIL Group) 18 ZAO Fuel Supply Company Jet fuel Ruling is being contested in court 19 ОАО Dagestani Airlines Air tickets Ruling was contested, was upheld by three levels of courts 20 ОАО LUKOIL- Jet fuel Ruling was contested and cancelled by three levels Nizhegorodnefteorgsintez, ООО LU- of courts KOIL-AERO 21 ZAO BRK Invest Limited, ZAO Do- Parking outside airport terminal Ruling was contested, out-of-court settlement modedovo Aerohotel reached 22 ОАО Silvinit Potassium chloride Ruling was contested, out-of-court settlement reached 23 Bryansk Dairy Factory Dairy products Ruling was contested, upheld by three levels of courts, came into force 24 ОАО Uralsvyazinform Cable rent in telephone conduit Ruling is being contested in court 25 Elektrostal Metallurgical Plant Ring blanks Penalty was paid, injunction followed 26 Magadan Center for Standardization, Equipment testing services Ruling was contested, is currently being considMetrology and Certification ered by court of cassation 27 Bread-Baking Factory No 1 Bread Ruling was contested, upheld by three levels of courts, came into force 28 ОАО Uralkali Potassium chloride Ruling was contested, out-of-court settlement reached An interesting example was the Federal Antimonopoly Service's investigation into a several-fold increase in the cost of granulated sulfur in Q2 2008 (ruling was passed in December Data have been systematized on the basis of press releases for 2008 posted on the Federal Antimonopoly Service's official website www.fas.gov.ru and a data bank of rulings by courts of arbitration http://kad.arbitr.ru/.
RUSSIAN ECONOMY IN trends and outlooks 2008). The ruling was contested in court but upheld by courts of three levels in December 2009. In six out 28 cases, court rulings on monopoly prices passed in 2008 were still not in force in 2009. An analysis of monopoly price cases in 2008 has revealed that in only six cases out of 28, commercial companies in questions followed FAS's injunctions (Fig. 1).
Practice shows that the most difficult to regulate are petroleum product markets, specifically jet fuel and gasoline. Out of six rulings passed in 2008 in connection with high monopoly prices for petroleum products, two were overturned by courts at three levels while the remaining four are being considered by courts at different levels.
For example, the Chelyabinsk Region court of arbitration overturned a ruling passed by the Chelyabinsk Region directorate of FAS in connection with high monopoly prices for jet fuel set by the Chelyabinsk airport supplier.
The court did not contest the fact that OAO "LUKOIL-AERO" enjoyed a dominant position on the market that Chelyabinsk airport is part of. However, it noted that there were currently no regulations setting pricing mechanisms for jet fuel since jet fuel had not been included on the list of products and services which fell under state regulation of prices and tariffs, as approved by the Russian government's resolution No 239 of 7 March 1995 "On measures to streamline state regulation of prices (tariffs)".
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