Apparently, this conclusion does notprovide grounds for an optimistic evaluation of perspectives of development of an efficient model ofcorporate governance (i.e. transparent and oriented towards the equality of allshareholders). Theself-sufficient financing within an enterprise or a group (even out ofnecessity) automaticallyremoves the question of shared joint stock financing, which is, in fact, thefinancial pillar and incentive of corporate governance as it is>
It shall be also taken into account thatthe effect of devaluation for extracting industries and advantages of high oil prices will run out in2002 – 2003, whilethe problems of structure of sources of financing will persist. Moreover, therewill remain liabilities,which were accumulated over the period of post-crisis growth: creditsguaranteed by oil deliveries at current prices, bond-related payments,promises of lavishdividends, etc., as well as unsettled problems of restructuring andfinancing of taken overenterprises. As euphoria of growth passes and there arise financialdifficulties, the problems are traditionally solved at the expense of minor shareholders andcreditors. Therefore, the issue is still open.
4.4 Legal Innovations of2001 in the Sphere of Corporate Governance
A lengthy process of discussion andopposition to new amendments to law “On Joint Stock Companies” was completed.Federal law No. 120 FZ of August 7, 2001, “On Amendments to Federal Law “On Joint StockCompanies” has been in effect since January 1, 200224. Amongthe most important innovations in the sphere of protection of shareholders’ rights are the following:
- a special provision grants shareholdersthe right to sell their shares without approval on the part of other shareholders and the company (Article 2);
- there is stipulated the possibility tolimit closed subscriptions in open JSCs (in charters or RF legislation);
- closed subscription (Article 39) may beapproved only by a decision of the general meeting of shareholders (3/4 votequorum in case it is probable that there will be more votes favoring thedecision);
- ordinary stocks placed via opensubscription (in case there are placed more than 25 per cent of previouslyplaced ordinary stocks) require the implementation of the same procedure;
- there is introduced the provision on theopen subscription privilege for shareholders (previously this privilege wasgranted only if it was stipulated by the JSC charter);
- there was introduced the provision onthe closed subscription privilege for shareholders who voted against it or didnot take part in voting;
- the shareholders exercising theirsubscription privilege (within 45 days since the notification) have the rightto pay for additionally issued shares with money even in case the decision onthe issue requires the payment with non-monetary means;
- it was prohibited to convert ordinarystocks into preferred stocks, bonds, and other securities.
Therefore, for the first time since theage of corporatization and mass privatization of the first half of 1990s there were set in placelegislative mechanismspreventing the most well known method to infringe upon the rights ofshareholders used in the1990s – dilution ofoutsiders’ sharesby new issues of shares. In this connection, it is worth to recall the historyof discussion of these amendments. In fact, these measures had been elaborated since 1997.The first draft was approved by the State Duma at the third reading on June 2,2000, however, it was blocked on the initiative of several largest companies. The new version ofamendments, approved by the State Duma in end-2000, also did not come ineffect. What has changed
It is obvious that factors behind theapproval of amendments were economic ones. The majority of largest companies completedconsolidation of property (transition to the single share, increase of sharesin subsidiaries up to almost 100 per cent, juridical fixation of holdings asclosed JSCs and limited liability companies, etc.) in 2001 through 2002. Inthis situation thedilution as an instrument lost in importance. In the result, minor shareholdersobtained a legislative instrument for protection of their rights when its useis already limited.Moreover, there remain a number of technical ways to circumvent thisinnovation. On the whole, the stress the new law makes on formal protection ofminor shareholders only intensifies the perception that these amendments aresomewhat obsolete.
Nevertheless, the fact that the law cameinto effect only on January 1, 2002, favors many companies, which were late toimplement various schemes prohibited by the new law. For instance, “Sibneft”and TNK settled their conflict concerning the rights for “ONAKO” by issuing additional shares in thecompany, while denying small shareholders the subscription privilege (i.e. they initiatedthe dilution of shares of minor stockholders). The reorganization of TNKholding in December of2001 carried out as consolidation of shares in subsidiary extracting companies(and not as affiliation via single share) will result in compulsoryredemption of fractionalshares and a decrease in the share of small shareholders. According to TNKestimates, their share in the reorganized company will be below 10 per cent. In September of2001, NK “YUKOS” initiated the decision of the Board of Directors of theAngarski oil and chemical integrated works (ANKhK) to consolidate shares (theface value is to be increased 1000000 times), and used the same instrument withregard to other subsidiaries (open JSC “Bryansknefteprodukt,” “NovokuibyshevskiNPZ,” “Voronezhnefteprodukt,” “Orelnefteprodukt”). Although many minorshareholders complain about “YUKOS” policy with regard to ANKhK(traditional causes ofcomplaints are thewithdrawal of assets, increasing creditor indebtedness, and transfer prices),it seems that there is no feasible alternative for portfolio investors due tonon-liquidity of ANKhK shares and impossibility to exchange them for “YUKOS”shares (which have significantly gone up since recently). On the whole, itshall be noted that in majority of cases the financial terms of exchange(redemption) are not discriminatory with regard to small shareholders (if thefact that they are forced to exchange shares is disregarded). This even may be viewed as acertain progress in protection of the rights of minor shareholders achieved in2000 through 2001.
The law is very cautious about the problemof transparency. The new version of the law settles this problem similarly to the problem ofdilution of shares (Article 91). The right to inspect accounting documents ofJSCs and minutes of Boards of Directors was granted to shareholders jointlyowning not less than 25 per cent of voting shares (as compared to 10 per centin the previous versionof the law). The law also stipulates that in case the number of shareholdersexceeds 50, a specialized registrar shall keep the JSC register.
One of the most frequently used ways to“exclude” outsiders in 1998 through 2001 was reorganization. The newversion of the lawstipulates that:
- shareholders of reorganized JSCs(separated or divided), who voted against reorganization or had no opportunityto vote shall be granted the right to receive shares in each newly created JSCin proportion to the number of their shares in the reorganized JSC;
- JSCs may be transformed both in alimited liability company and productional cooperative, and non-commercial partnership (in case ofunanimous voting).
The positive effect of the firstinnovation is very important. Evidently, it would be also feasible to amend theRF Civil Code and / or elaborate federal law “On Reorganization of Companies.”The second innovation is also important, since it addresses the objective process of transformationof open JSCs, which were forcibly created in the course of mass privatizationin other organizationaland legal forms more suitable for concrete enterprises in terms of their size,sectoral specifics,functions, etc. In the future, it is necessary to stipulate available optionsin more detail, at the same time addressing the issues of protection of all subjects ofcorporate relations.
It is of equal importance to define largetransactions and set in place the respective rules. Article 78 for the firsttime includes loans, credits, pledge, and guarantee in the list of largetransactions. The general meeting and the Board of Directors have the right to approve ordisapprove a large transaction, but not to initiate it.
As concerns authorized capital, the lawstipulates that it may be increased via additional issues of shares at theexpense of JSC assets(i.e. capitalization). The authorized capital may be increased via increase inface value of shares only at the expense of JSC assets (Article 28).
Yet another problem in the sphere ofauthorized capital is the problem of fractional shares, which, alongside withconsolidation of shares became a new instrument used to drive out outsiders in2000 through 2001. This problem has not been completely settled and became evenmore important since there had been taken the decision granting shareholderssubscription privileges concerning additional issues of shares. The new version of the lawstipulates that fractional shares ensure the rights in proportion to the whole sharepart of which it represents. While this approach is quite suitable with regard todividends, there arise apparent difficulties with regard to voting on theprinciple “one share – one vote” (however, it is possible to sum up fractional shares).
There persists dualism with regard to JSCdividend policies. The decision on the payment of dividends may be taken onlyonce a year (not on quarterly basis, as before). However, the general meetingstill has no competence to exceed the amount of dividends recommended by the Board ofDirectors. Accordingly,the decisions on dividends taken by general meetings are only of formal nature.
One of the most important tasks of thecorporate law (as others) is to prevent the creation of “ephemerid” and “bogus” JSCs in order toguarantee creditorsrelying on JSC authorized capital the repayment of their losses, what wouldimprove the protection ofinterests of creditors as financial investors in JSCs. However, in this respectthe new version of the law makes a step backwards, since it stipulates that fromJanuary 1, 2002, 50 per cent of shares in the JSC distributed at the moment ofits creation shall be paid off over 3 months since the date of stateregistration (not prior to the date of registration, as before).
Accordingly, it is already clear that itwould be feasible to make a number of amendments to the law in the future:
- to prohibit joint stock companies tocarry out any transactions not related to the establishment procedures until the full repayment oftheir authorizedcapitals;
- to tighten repayment of shares– they shall befully repaid in three months after the date of state registration; additionalshares shall be fully repaid at the moment of placement;
- to stipulate that it is mandatory to usethe services of an independent appraiser in case dividends are paid in non-monetary form, to makefounders, members of the Board of Directors, and independent appraisersresponsible in case the value of assets used to repay shares is evaluated toohigh.
A number of innovations concern JSCmanagement:
- there was introduced a clear procedurefor suspension of powers of the general manager (Article 69);
- the Board of Directors was granted thecertain right to amend JSC charter and approve the registrar;
- the Board of Directors shall have theright to increase authorized capital via additional issues of shares only ifthe charter stipulates it (the decision shall be unanimous);
- the Board of Directors shall have noright to take decisions on participation in other organizations;
- only physical persons shall have theright to be members of the Board of Directors (Article 66), it is alsoexpressly prohibited to transfer voting rights;
- “the exclusive competence of the generalmeeting” (Article 48) was replaced by the rule, according to which the issues of the meeting’s competence can not betransferred to the Board of Directors and executive bodies, while the meetingnow has the right to discuss issues outside its competence;
- the general meeting shall have the rightto approve internal regulations;
- the mixed form of the meeting isexcluded, the law stipulates two options – general meeting and absentee voting.
From the viewpoint of protection ofinterests of large shareholders (represented in the Board of Directors) the innovation stipulating thatexecutive directors maybe suspended by the Board of Directors without an extraordinary meeting of shareholders (Article 69) isof certain importance. This regulation may be used in case the general meetingof shareholders forms theexecutive body. In case it is in the jurisdiction of the Board of Directors toform executive bodies,the Board has the right to suspend the powers of the executive body at anytime. The new version of the law also attempts to settle collisions arisingfrom the obsolete LaborCode (general jurisdiction courts base their decisions on this Code). Forinstance, the law stipulates that relations between JSCs and their executivebodies (general managers, etc.) shall be subject to the RF labor legislationonly if they do not contradict the law on JSCs.
However, the problem of protection ofinterests of large shareholders is more related to procedural aspects of thelaw.
The new version of the law sets a numberof regulations aiming to prevent corporate blackmail, however, an analysis oflegal means of defense did not reveal any effective defense measures25. It does not mean that thelaw needs special respective amendments. The defense shall primarily relay oncourt proceedings.
A novation of year 2000 is the applicationof Article 49 of law “On Joint Stock Companies,” which permits ashareholder (including aone-share holder) to sue the company for potential loss inflicted by a decisiontaken by the generalmeeting of shareholders. Most often shareholders resort to this practice aimingto ban pending meetings of shareholders (called to take importantdecisions concerning the JSC or appointment of anew manager) claiming that the board of directors convening the meeting is notlegitimate. Obviously, such a conflict is initiated not by the formal claimantowning one share, but competitors or a real party behind the intra-corporate conflict.Besides, the owner of one or a few shares having the formal right to lodge theclaim has little chance to suffer real losses.
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