This said, shares of 13 companies (including the above mentioned Taganrog avia tion research and production complex and Yakovlev OKB) may be regarded as a contribution from government owned shareholders. In 5 companies out of those 13 federal packages are contributed as government’s input into UAC.
In early 2007 the law was approved allowing the creation of a major state owned company based on the civil assets of Russian nuclear power sector with 100% government interest. United integrated company “Atomenergoprom” will be come a complete cycle corporation including uranium mining, production of fuel for nuclear power stations (NPS), energy generation, construction of NPS in Russia and abroad, nuclear engineering, R&D. The No.1 candidate for integration into “Atomenergoprom” “Atomenergoprom” is a 100% state owned company produc ing fuel elements and being a majority shareholder of a whole series of core enter prises including Electrostal nuclear engineering plant (Moscow region), Novosi birsk chemical concentrates plant, Priargunskoye chemical mining association (Chita region). In future “Rosenergoatom” association uniting all Russian NPSs + K. Frumkin, Chebol Russian Styleи // Kompaniya, No.48–49 (444–445), December 25, 2006, pp. 22–31.
100% shares of 2 JSCs created by way of transforming FGUPs (MiG and Kazan aviation production association named after S.P. Gorbunov) are also being contributed to UAC charter capital.
RUSSIAN ECONOMY IN trends and outlooks core R&D and design institutes may be integrated into the new Holding, as well as enterprises from United Engineering Plants (Obyedinenniye Mashinostroitelniye Zavody) Group.
The plans of establishing one more state owned corporation (Bank for foreign economic activities and development of the Russian Federation) with total charter capital of RUR 70 bln on the basis of reorganized Vnesheconombank and acquired Roseximbank and Russian Development Bank in H2 2007 are along the same lines.
The key objective of the newly set Bank will be to support those infrastructural and innovative projects which are not of particular interest for private capital by way of issuing loans to legal entities for the period over 5–10 years. This bank is not meant for dealing with citizens. The Supervisory Board to manage and control the new bank will be appointed by the government without involvement of the RF Central Bank.
As for air transportation and airports, plans of Aeroflot to acquire regional aviation companies were voiced, these companies not necessarily being 100% state owned (e. g., “Dalavia”, “Vladivostokavia”), as well as plans to create a United National Airport Management Company on the basis of 100% state owned JSC Sheremetyevo International Airport. The following airports may be included into this government airports managing corporation: Pulkovo (St. Petersburg), Tolmachy ovo (Novosibirsk), Koltsovo (Yekaterinburg), Kurumoch (Samara), Yemelyanovo (Krasnoyarsk). The probability to implement this last scenario is not very high due to the above mentioned circumstances (preparation to privatization of Pulkovo with possible participation St. Petersburg City government as one of the shareholders, interest towards Novosibirsk, Yekaterinburg and Krasnoyarsk airports on behalf of private businesses, limited number of shares in government’s packages, etc.).
Besides, setting up a new state owned company for managing airports may require re distribution of authority and assets among government organizations, because 2 FGUPs are already operating in the sphere of airports: State Corporation for Air Traffic Organization and Civil Airports Authority (established in 2001 on the basis of Bykovo, Vnukovo and Sheremetyevo assets not qualified for privatization with future prospects of consolidating the assets of not only Moscow based but other civil airports)75.
Some options of creating major corporations covering certain segments of mechanical engineering (machine building) industry on the basis of integrating government and private assets such as National Automotive and Power Engineer ing Companies + Ship Building Holding (similar to UAC) were explored in 2005– 2006, but have not been implemented so far. The project of combining Novorossi ysk Marine Shipping Company (JSC Novoship with 50% government interest) and 100% state owned “Sovkomflot” company was also frozen up in the summer.
It is necessary to state here that runways, taxi strips, ground control equipment and other assets directly associated with air traffic are not qualified for privatization and shall be still owned by the government, which requires operations of specialized government organizations. In case of privati zation new owners shall be granted ownership of terminal facilities, and in some special cases – of the adjacent territory.
Section Institutional Problems Certain perspectives of government ownership expansion may be associated with ALROSA company. As it is known, back in 2001 the President of the Russian Federation required to develop a set of measures to re gain government’s share in the company’s charter capital. In 2007 – after 7 years of the federal government’s attempts to restore the RF control and of friction with Yakutia, – the RF share is now likely to be increased from 37% up to 50% + 1 share. At the same time Vneshtorgbank will purchase a certain portion of shares through the secondary market with the purpose of handing them over to the federal government; and a portion of the RF share increase may be backed by additional issue. By the begin ning of 2007 these processes were not 100% completed, however, the issue of es tablishing ALROSA’s control over Norilsk Nickel has already been discussed in the media (and ALROSA management did not refute). The probability of Norilsk Nickel nationalization has been under review starting from 2005.
5.2.4. Changes in legal framework regulating government sector operations Amendments and supplements to the effective RF Law “On Privatization of State and Municipal Property” introduced via the RF Law No.155 FZ of July 27, 2006, with the objective to re adjust the procedure for increasing the charter capi tals of JSCs established through privatization with 25% or more government inter est became the key legal novelty of 2006 related with state property management.
The previous version of the Law allowed for increasing the charter capital of such JSCs only under the condition of maintaining the share of either state or mu nicipality. According to the RF Ministry for Economic Development and Trade, such limitation in the growing economy environment impeded attracting investment to JSCs with government’s interest, because in reality budget funds were not allo cated, in the best case one could talk only about contribution of some assets to cover additional issue of shares and to support maintaining the existing capital dis tribution between different groups of shareholders.
The new version of the Privatization Law (Article 40) defines a number of power bodies (the President of the RF, the RF government, state power body of the respective entity of the RF, local self government body) entitled to make a positive decision about increasing the charter capital of such JSCs with simultaneous re duction of the state/municipality share.
Now in case more than 25% (but accounting for not more than 50% of votes at the General Shareholders Meeting) of the shares of a JSC created within the priva tization process belong to the state/municipality, its charter capital increase by way of additional issue of shares may be performed with simultaneous reduction of the state/municipality share provided such decision is made by the RF government, state power body of the respective entity of the RF or local self government body under the condition that the state/municipality maintains the interest of 25% + voting share. The same provision is applicable to the companies included into the List of Strategic JSCs, but the decision needs to be made by the President of the Russian Federation.
RUSSIAN ECONOMY IN trends and outlooks In case the state/municipality interest in a JSC created within the privatization process accounts for more than 50% of votes at the General Shareholders Meet ing, its charter capital increase by way of additional issue of shares may be per formed with simultaneous reduction of the state/municipality share only under the condition such decision is made by the RF government, state power body of the re spective entity of the RF or local self government body and only under the condi tion that the state/municipality keeps those 50% votes + 1 voting share. Similarly, for the companies included into the List of Strategic JSCs, such decision needs to be made only by the President of the Russian Federation.
Similarly, the state power bodies are empowered to define the government’s interest in the charter capital in case of public offerings and listing of respective JSCs shares at capital market, both in Russia and abroad, including the situations when it is done by way of placing securities under international laws regulating for eign capital presence and certifying the rights with regards to JSCs shares (Article 40.1):
- increasing charter capital for companies from the List of Strategic JSCs and de fining the government share in such charter capital shall be performed by the decision of the President of the Russian Federation;
- increasing the charter capitals of JSCs established through privatization with state/municipal interest accounting for more than 25% votes at the General Shareholders Meeting and defining the government share in such charter capi tal shall be performed by the decision of the RF government, state power body of the respective entity of the RF or local self government body.
At the first glance this system looks pretty flexible combining the opportunity for JSCs with government interest to attract investment with assuring property con trol on behalf of the government. However, only future practice may show to which extent this instrument will work and what will be the demand for it.
The preceding Russian practice proves that in the current environment when corporate law provisions are difficult to enforce high concentration of shares is viewed by business community as the most acceptable guarantee from risks of in vesting into that or another company. This makes it very difficult or almost improb able to attract new investors simply by way of additional issue of shares as long as government stays the majority shareholder, even though with regards to certain at tractive companies providing for certain benefits or having got some really interest ing assets such scenario may be implemented. Investors shouldn’t forget about general risks associated with government interference into business activities (risks of insufficient professionalism of government officials, poor incentives for them, and opportunities for them to get illegal benefits from such situations).
The first practical trial for such a scheme may take place with Foreign Trade Bank (Vneshtorgbank), which in the very end of 2006 by a special Presidential De cree was allowed to increase its charter capital by way of additional issues of shares and their phased offering with simultaneous assurance of maintaining the government interest of no less than 50% votes + 1 voting share at the General Section Institutional Problems Shareholders Meeting of this JSC. Respective amendments were introduced into the List of Strategic JSCs.
Amendments to Article 77 of the RF Law “On Joint Stock Company” intro duced by the RF Law No.146 FZ of July 27, 2006, will have really big impact for im plementation of the above described novelty and for corporate governance in JSCs with government interest. These amendments are aimed at specifying the previous norm about participation of government financial control authority in defining the market value of the assets belonging to JSCs with state/municipal shares.
This norm shall be applicable to decision making on the issue of defining the value (monetary evaluation) of assets, of the shares offering price and of the buy out price of the company. The Board of Directors (the Supervisory Board) of the company shall notify the federal executive body authorized by the RF Government (hereinafter referred to as the authorized body) about the decision made with re gards to assets evaluation.
Besides, the new version of Section 3 of Article 77 of the RF Law “On Joint Stock Companies” defines:
- the list of documents required for justification of the decision on assets evalua tion;
- deadline for submitting the documents and the timeline for their review by the authorized body;
- right of appeal of the authorized body decision;
- expert evaluation of the report about defining the assets value;
- consequences for the company violating the procedure of defining the value;
- other matters.
In case the authorized body decides the value defined by the resolution of the Board of Directors (Supervisory Board) independently without engaging a third party assessor does not correspond with the established market prices for the analogous assets, the Board of Directors (Supervisory Board) shall make a deci sion about rejecting the deal or decision to define the assets value with mandatory engagement of a third party assessor and in compliance with the procedure stipu lated by that Article.
In case the authorized body does not forward its statement within the estab lished deadlines, the assets value shall be recognized as plausible and recom mended for performing the closing the deal.
Provided the deal performed by the company violates the procedure set in the article hereof or not plausible as per the item hereof, it may be recognized as void through a law suit initiated by the authorized body within 6 months starting from the date the authorized body learned (or should have learned) about the closure of the deal.
Considering all the circumstances of the case the court shall be entitled to re fuse in calling the deal void if the company proves that the committed violations are immaterial and that the deal has not caused any damages to the public, state or/and municipality.
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