Business saw the risks of abuse in the draft law on external management

The RSPP advocated reducing the grounds for introducing external administration in companies leaving RUSSIA, as well as narrowing the list of its powers, follows from a letter from the union to the Ministry of Economics.Otherwise, there is a high risk of abuse

A number of provisions of the draft law on external administration can lead to abuse, theft and other illegal actions on the part of appointed managers, as well as negatively affect the business climate in Russia, follows from a letter from the Russian Union of Industrialists and Entrepreneurs (RSPP; represents the interests of big business) to the Minister of Economic development Maxim Reshetnikov. The document, signed by the HEAD of the association Alexander Shokhin, is at the disposal of RBC. The Ministry of Economic Development told RBC that they had received proposals from the Russian Union of Industrialists and Entrepreneurs and were studying them. The legal department of the profile committee of the State Duma also warned about possible problems in the application of the draft law on external administration.

Offers from business representatives

The bill, first proposed in early March, has not yet passed the first reading, but any significant amendments are usually considered in the second reading. The RSPP is attaching to the letter a list of necessary amendments for the second reading, aimed, among other things, at minimizing the uncertainty of interpretations and possible abuses by the external administration. Among them are the following.

Do not give the external administration the right to request information about the official, commercial or banking secrets of the organization and its counterparties.

In fact, the draft law in its current form provides the external administration with unlimited opportunities in terms of obtaining information about any persons who have entered into relations with the organization, the RSPP pointed out. This is an unjustified empowerment, and the approach itself creates the possibility of leakage of confidential information and can lead to abuse by appointed managers.

Deprive persons appointed as external administration of the right to participate in auctions for the sale of shares of a controlled organization.

The situation in which a person performs the functions of an external administration and at the same time can participate in auctions for the sale of shares of a company created on the basis of the property of an administered organization has obvious signs of a conflict of interest and creates a risk of abuse, the RSPP points out.

Read on RBC Pro Pro Consulting services are in demand more than ever:what companies want Articles Pro How the decision-making system works based on the emotions of market participantsPro An employee moved abroad: 4 options for how to apply for a job Instructions Pro Be like us:why Coca-Cola changed its name in CHINA to Ke Kou Ke Le Articles Pro "ЯRUS" and TenChat:why you should not rush to master Russian social networks Articles Pro How not to make a mistake,creating your own brand Articles Pro What to change in the contract, even ifsanctionsyou were not affected Instructions Pro The employer must return the "excess" personal income tax to the employee: how to do it Instructions

The draft law stipulates that the foreign administration is given a pre-emptive right to buy shares of a legal entity, which means that during any stage of the auction it can submit an offer at the price of another participant and will be recognized as the winner of the tender in the absence of an offer at a higher price.

“On the one hand, the external administration is interested in selling assets at the maximum price, while the buyer will seek to acquire them as cheaply as possible. When these roles are played by one subject, his motives come into conflict with each other. However, the draft law lacks mechanisms for resolving such situations,” Alexander Varvarin, Vice President of the Russian Union of Industrialists and Entrepreneurs, explained to RBC. 

The Union proposed to exclude from the bill the provision on the participation of the external administration in the auction, as well as to give the pre-emptive right to purchase securities to the remaining Russian shareholders of the administered company. The press service of VEB.RF declined to comment. 

Give external administration full responsibility for its actions.

The current version of the draft law provides for liability for the external administration only in the event of a deliberate violation of the law or gross negligence. At the same time, the bill obliges it to “act in good faith and reasonably in the interests of the organization, its creditors, employees and society.”

It seems logical that the external administration should be liable if, in the performance of its duties, it acted in bad faith or unreasonably, including if its actions or inaction did not correspond to the usual conditions of civil turnover or ordinary business risk, the RSPP believes. The presence of a legal gap in this matter may create prerequisites for abuse, theft and other illegal actions, the union's letter says.

Specify the types of goods that the company must produce in order to fall within the scope of the bill.

The bill allows the introduction of external administration in organizations that are a manufacturer of "certain types of products, including medicines or medical devices, or the only supplier of products that have no Russian analogues." In this provision, there is not enough specificity, and this gap can lead to uncertainty and abuse, the RSPP warns.

“Business must understand in advance the possibility of introducing an external administration against it, but the draft law does not provide the necessary clarity. In this regard, it is proposed to make an addition that the list of significant products is determined by the government,” Varvarin said.

A draft law on the management of the property of departed companies was submitted to the State Duma Politics

How external administration will work

According to the draft law, the decision on the appointment of an external administration is made by the COURT upon the application of the interdepartmental commission under the Ministry of Economic Development. It can be introduced in a company if at least 25 percent of the share is owned by a resident of an unfriendly country of Russia and the organization is essential for ensuring the stability of the domestic economy. It is assumed that external management will be carried out by VEB.RF or another structure chosen by the commission.

The following are recognized as grounds for the introduction of administration:

termination of management of the organization in violation of Russian law (including leaving after February 24 with evasion from exercising powers); actions of the management that may lead to the bankruptcy or liquidation of the organization (in particular, if after February 24 the management announced its withdrawal from Russia “in the absence of obvious economic grounds for this”); reduction in production (including a reduction in revenue for three months by at least 30% compared to the previous three months or for the same period last year).

External management can be introduced for up to 18 months and is implemented in two versions:

transfer to the trust management of the external administration of all or part of the shares; transfer of powers of the head of the organization to the external administration.

At the same time, the owners (more than 50% of the shares) will be able to apply to the interdepartmental commission at any time with an application for the resumption of activities or the sale of shares.

At the end of the term of temporary administration, the replacement of assets can be carried out by reorganization in the form of a spin-off, after which the shares of the established company can be sold at auction under the bankruptcy law. If there is no buyer, then the papers are purchased by the state at a minimum price.

Threats to the business climate

The RSPP has several more proposals for adjusting certain provisions of the draft law on external administration, which could negatively affect the business climate in Russia, follows from the recall.

Raise the bar for foreign ownership from 25% to 50%.

In practice, in order for shareholders to take actions aimed at suspending or terminating the work of the company, it is required not a blocking (more than 25%), but a controlling (more than 50%) block of shares (stakes in the authorized capital), indicate in the RSPP. Therefore, it is unlikely that there will be strong grounds for the introduction of external management in companies where foreigners own only a blocking stake.

Delete a provision that allows the introduction of external administration without the criterion of "significant importance" to the economy.

The draft law states that in order to be able to introduce external administration in it, a company must meet the criteria of significance for the economy (these include, for example, the production of socially significant goods, the status of a natural monopoly or the only supplier, the number of employees in the amount of 25% or more of those working in a populated area). paragraph, etc.). However, there is a clause that allows you to ignore this criterion if the interdepartmental commission deems it necessary.

In fact, this provision makes it possible to apply the mechanism of external administration in relation to any organization that has suspended its activities not because of the politicized position of the owners, but, if necessary, to restore broken supply chains, restructure production, and carry out import substitution of equipment, according to RSPP. At the same time, the bill does not establish in which cases the interdepartmental commission can make an appropriate decision.

“Such an approach undermines confidence in the stability of guarantees of property rights, which may negatively affect the business climate as a whole,” the RSPP said.

"McDonald's" announced the withdrawal from Russia and the sale of business Business

Exclude grounds for the introduction of external administration related to objective economic reasons.

For example, the reduction in production and sales of products, which are now also grounds for external administration, may well be objectively due to seasonality, reduced demand, and lack of components. Economic reasons can also form the basis for stopping activities. It is proposed to keep in the text of the bill only those grounds that are related to the actions of controlling persons who purposefully violate the work of the company, the RSPP recalls.

Exclude the grounds for the introduction of external administration related to the suspicion of the termination of activities.

The appointment of an external administration only if there is a suspicion that the organization will cease its activities is an unreasonable intrusion into the internal affairs of the company, violates the rights of the organization itself, its shareholders and creditors, the RSPP is sure.

To enable the Russian shareholders of the company to perform the functions of external administration.

The bill does not provide for the possibility of appointing the remaining Russian shareholders as an external administration, although they are best aware of the state of affairs in the company and can begin operational management as quickly as possible. In this regard, it is proposed to consolidate the corresponding opportunity, follows from the recall.

Other questions to the bill

RSPP is not the only one who points out the possible negative effects of the adoption of the bill. Thus, in the recall of the legal department of the State Duma Committee on Property, Land and Property Relations (core on this issue), it is said that the grounds for the introduction of external administration and the criteria for organizations falling under its action do not meet the requirements of clarity and clarity.

This approach creates legal uncertainty and may lead to the fact that the application of restrictive measures will be carried out arbitrarily, the legal department noted. Such consequences are especially sensitive, given that the participants of the company, in respect of which external administration has been introduced, as well as its creditors, may be Russian legal entities and individuals, and this situation will also affect them, follows from the recall.

Earlier, the government proposed to expand the list of organizations in respect of which it is allowed to introduce an external administration, and add to it manufacturers of products "used in the production of weapons, military, special equipment" and in the implementation of "projects in the fuel and energy complex of Russia," Vedomosti wrote. .