Contestation of decisions taken at the General meeting
Courts, to whose competence includes consideration of cases on challenging decisions of the General meeting of shareholders are the state arbitration courts and arbitration courts.
Competence of the state arbitration courts in cases challenging the decisions of the General meeting of shareholders is obvious and cannot be questioned because of the following.
Arbitration procedure code of the Russian Federation (hereinafter — APK RF) contains rules, according to which:
1) cases on appeal against decisions of management bodies of legal persons within the jurisdiction of arbitration courts (articles 33, 225.1 of APC RF);
2) petition of appeal against the decisions taken at the General meeting of shareholders, served in the court of arbitration at the location of the joint – stock company of the Issuer (article 38 of the APC RF).
It should be noted that in respect of disputes on appeal of decisions of the General meeting of shareholders established exclusive jurisdiction. This means that the competent court of arbitration cannot be determined by agreement of the parties.
In this context, it is necessary to elaborate on the question of the method of determining the location of the joint society. The location of joint-stock companies is an address of its state registration (article 54 of the civil code, article 4 of the Federal law "On joint-stock companies" (further —FZ "On joint stock companies")). In turn, the address of state registration of joint-stock companies needs to be address, which is its sole Executive body (article 54 of the civil code). Information about the address (location) of the company contained in the Unified state register of legal entities (further — the register) (article 5 of the Federal law "On state registration of legal entities and individual entrepreneurs" (further — FZ "On state registration")). This information is publicly available and is provided in the form of certificate of incorporation (article 6 FZ "On state registration"). This conclusion is confirmed by court practice (Decision FAS of the Moscow district as of 06.12.2011 on business № A40-26424/11-83-20).
Thus, the appeals against decisions taken at the General meeting of shareholders of the company may be in bankruptcy court solely on the location of the Issuer company specified in the certificate of incorporation.
Concerning the competence of arbitration courts by hearing of cases about contest of decisions of the General meeting of shareholders, the situation is not so clear. The specified uncertainty is associated with the following.
In 2009, the APC was substantially amended. Pursuant to the amendments to the arbitration process introduced a new special category of cases— corporate disputes. In the indicated category, in particular, was included the case on challenging the decision adopted at the General meeting of shareholders. Consideration of corporate disputes was transferred to the special jurisdiction of arbitration courts.
In October 2011, the Federal arbitration court of the Moscow district in the case № A40-35844/11-69-311 issued a landmark ruling, the reasoning of which pointed to the fact that in connection with the above changes, the APC corporate disputes may not be submitted for consideration by arbitration courts because of the nature and specifics of relationships that give rise to such disputes (the Resolution of FAS MO from 10.10.2011. in the case № A40-35844/11-69-311).
In the future, the Supreme Arbitration Court of the Russian Federation "tacitly" supported the above position, refusing to transfer the case to the Presidium. He has not voiced their position on this issue, pointing out that the grounds for review in order of supervision do not exist (the Definition of the SAC from 30.01.2012 № VAS-15384/11).
The constitutional Court of the Russian Federation did likewise, refusing to consider the appeal due to the fact that the applicant's complaint does not meet the requirements established by the legislation (ruling of the constitutional court of the Russian Federation of 21.12.2011 No. 1804-o-O). The constitutional Court of the Russian Federation are not directly pointed to the fact that corporate disputes may not be referred to the arbitral Tribunal.
According to the author, the position that corporate disputes may not be submitted for consideration to the arbitration court, is not consistent with the applicable law, and also violates fundamental principles of justice in the Russian Federation. The author is based on the following.
1. According to paragraph 6 of article 4 of the APC for consideration of the arbitration court can be transferred to a subordinate court of arbitration dispute arising out of civil law relations, unless otherwise provided by Federal law. As noted above, corporate disputes, of course, subordinated to arbitration court. It is also clear that corporate disputes arise from civil legal relations, as the implementation of corporate rights directly or indirectly aimed at the satisfaction of material interests. Thus, corporate disputes have all the necessary features to transfer to the arbitration court.
2. Let me remind you that according to the position of Federal arbitration court of the Moscow district specified above, the categorization of corporate disputes to special arbitration courts entails the impossibility of their transfer to the arbitration court. According to the author, this conclusion is made due to improper interpretation of article 33 (special jurisdiction) of the APC. First, it is necessary to note that in this article we are not talking about an exceptional, but about the special jurisdiction of certain categories of cases to courts of arbitration. Secondly, a comprehensive interpretation of § 1 (Jurisdiction), Chapter 4 (Competence of arbitration courts) of the APC leads to the conclusion that the category of jurisdiction is the distribution of cases between the two branches of the state judicial system (courts of General jurisdiction and arbitration courts), without affecting the competence of arbitration courts.
The foregoing conclusion is confirmed by the practice of the same Federal arbitration court of the Moscow district (the Resolution of FAS MO dated 04.08.2009 on the case № A40-30102/08-69-336), according to which the establishment in part 1 of article 33 of the APC, the special jurisdiction of arbitration courts of certain categories of disputes, is not by itself the basis for a conclusion about impossibility of consideration of cases in this category arbitration courts.
Moreover, the contents of paragraph 2 of article 33 (Special jurisdiction of cases to arbitration courts) indicates that by introducing the concept of special jurisdiction, the legislator has given to arbitration courts the competence to consider defined categories of cases, regardless of the composition of the parties, but does not exclude the competence of arbitration courts in respect of these categories of cases.
It should be noted that if you develop the logic that guided the court coming to the conclusion about impossibility of transfer of corporate disputes to the arbitration court because of their assignment to special (not exclusive!) of arbitration courts, it can be concluded that the arbitral Tribunal may not be transferred to any disputes within the jurisdiction of the arbitration courts, which is absurd.
Thus, we can conclude that the APC does not contain any restrictions or prohibition on the transfer of corporate disputes to arbitration.
3. In its Judgment of 26.05.2011
No. 10-P of the constitutional Court clearly expressed that the arbitration courts are an alternative form of resolution of civil disputes. Any civil disputes can be referred to the arbitration court, which does not contradict the Constitution.
Given the above, it can be concluded that the current legislation does not contain any restrictions or prohibition on the transfer of corporate disputes, including cases obespylivanii of decisions taken at the General meeting of shareholders, to arbitration. In this regard, referring to the civil nature of the cases on challenging the decisions taken at the General meeting of shareholders, the arbitral Tribunal may consider these disputes.
It should be noted that the matter may be referred to the arbitration court only on the basis of the arbitration agreement between the parties, which is any time before the arbitration court of the first instance of the act, which ends the proceedings on the merits.
Requirements for persons acting with the claim about a recognition of decisions of the General meeting of shareholders invalid
Of the Federal law "On joint stock companies" establishes that the decisions adopted at the General meeting of shareholders, entitled to challenge only the shareholders of the Issuer company (paragraph 7 of article 49 of the Federal law "On joint stock companies"). It is necessary to keep in mind the following nuances associated with the requirements that must be met by the shareholder, addressed with the claim about recognition of decisions taken at the General meeting of shareholders, invalid:
1) shareholder, who at the time of the dispute has already lost this status, shall not have the right to appeal against decisions taken in the disputed General meeting of shareholders (see, for example, the Regulation of FAS Moscow district dated 23.12.2011 in the case № A41-11344/11; the Resolution of FAS of the Northwest district from 18.10.2007, case № A56-52108/2006; resolution of the Federal Volga-Vyatka region from 25.01.2008 on the case № A28-3939/2007-str 104/2);
2) a shareholder who does not have the status of shareholder at the time of adoption by the General meeting of shareholders of controversial decisions, is not entitled to appeal against such decisions (see, for example, the Regulation of FAS Moscow district dated 31.01.2011, № KG-A41/16824-10 in the case № A41-27382/09; the Resolution of FAS of the far-Eastern district dated 04.07.2011, No. F03-2537/2011 in the case n A51-21102/2009; resolution of the Federal West-Siberian district dated 26.08.2011 in the matter
No. A45-19462/2010);
3) a shareholder of the company, the sole shareholder of another company, is not entitled to appeal the decision of the General meeting of shareholders of the latter. For example, if the gentlemen A and B each own 50% of shares of company X, which in turn owns 100% of shares of company Y, then they have no right to challenge decisions of the General meeting of shareholders of the company Y, as they are not its shareholders (see, for example, the Regulation of FAS Moscow district dated 30.07.2010 № KG-A40/7200-10 on business № A40-98237/09-136-810; the Resolution of FAS of the Northwest district from 02.12.2011, the case № A56-55612/2008);
4) shareholder of the company, who was present at the General meeting of shareholders, but did not vote on it or voted against it, shall not have the right to challenge adopted at such meeting solutions. In other words, if a shareholder were present at the meeting and at the same time:
did not participate in the vote
voted for or abstained
the ballot was declared invalid,
such shareholder is not entitled to appeal against decisions taken as a result of this vote (see, for example, the Regulation of FAS Moscow district dated 21.05.2008 № KG-A40/3032-08 on business № A40-45803/07-57-377; resolution of the Federal East-Siberian district on 15.12.2011 G. in the case n a10-1096/2011; the Regulation of FAS Moscow district dated 28.06.2007, 03.07.2007 № KG-A40/6134-07 on business № A40-72871/06-81-444).
It should be noted that the status of the shareholder is confirmed by the extract from the register of shareholders or securities account in the Depository, if the shareholder is instructed to consider their rights nominee. When it is necessary to prove the occurrence or the termination of the status of shareholder in the past, proper proof of these facts will be the certificate of operations under the personal account (depot account) of the shareholder for a period of time. These documents are issued by the entity keeping the register of the Issuer company or has entered into a Depositary agreement with a shareholder. In the first case, this person can act as society itself is the Issuer and professional participant of the securities market (Registrar). The professional participant of the securities market with the Depository license.
The grounds on which the decision of the General meeting of shareholders may be
void
The grounds on which the decision of the General meeting of shareholders may be invalidated, are breaches of the law and of the Charter of the Issuer company. These violations can be divided into two groups:
violations that may result in the recognition of court decisions taken at the General meeting of shareholders, invalid when all of the following conditions:
they have affected or could affect the results of the voting at the General meeting of shareholders;
such violations infringe upon the rights and legitimate interests of shareholders;
violations, of course entailing the invalidity of the decisions taken at the General meeting of shareholders, regardless of their legal challenge.
The first group of violations are (see Decision of the Plenum of the Russian Federation dated 18.11.2003 No. 19 "About some questions of application of the Federal law "About the promotion. -
stock companies"):
1) delayed notification (notification failure) of the shareholder on the date of the General meetings of
niya. As a General rule, the shareholder shall be notified on holding of the General meeting of shareholders not later than 20 days. Depending on the issues on the agenda of the General meeting of shareholders, the specified period may be 30 or 70 days. The notification shall be sent to shareholders by registered letter or delivered to them against signature. While the company's Charter may provide for other ways of notification of shareholders about holding the General meeting;
2) failure to provide the shareholder the opportunity to become familiar with the necessary information (materials) on the issues included in the agenda of the meeting. Depending on the agenda of the General meeting of shareholders to information (materials) to be provided to shareholders include the annual financial statements, auditor's report report of the audit Committee, information on candidates to the management bodies and control of the company, draft amendments (additions) made to the company's Charter or a draft company's Charter in new edition, draft internal documents, draft decisions of the General shareholders meeting, information about shareholders ' agreements.
It should be noted that a detailed list of information (materials) provided to shareholders depending on the issues on the agenda of the General meeting of shareholders, is contained in the Provision on additional requirements to the procedure of preparation, convocation and holding the General shareholders meeting, approved by the FCSM of the Russian Federation from 31.05.2002 № 17/PS. The company's Charter may provide additional information (materials) provided to shareholders for familiarization before the General meeting of shareholders. In accordance with the legislation of the said information (materials) shall be available to the shareholders within 20 days before the shareholders ' meeting. In some cases this period may be extended up to 30 days. It is noteworthy that the shareholder has the right to request copies of the above materials;
3) untimely submission of ballots. This violation can be committed during the holding of the General meeting of shareholders in absentia or if the Charter set the period granted to shareholders of the ballots until the General meeting in person. In the first case, the ballots should be given to the shareholders not later than 20 days before holding the General meeting of shareholders; in the second case, the deadline for submission of ballots is established by the Charter. The direction of the shareholders of the ballots shall be delivered by registered letter, if the Charter provides a different procedure for sending newsletters. This involves also the unfounded refusal to issue ballot paper to the shareholder or his representative, who arrived to participate in the meeting;
4) incorrect counting of votes at the General meeting of shareholders. The procedure of counting of votes set by the Federal law "On joint stock companies" and the regulations on additional requirements to the procedure of preparation, convocation and holding of General meeting of shareholders, approved by Order of FCSM of the Russian Federation from 31.05.2002 № 17/PS. It should be noted that in some cases stipulated by law, voting and counting of votes is carried out in a special order different from the General.
These cases include:
election of members of the Board of Directors (cumulative голосование1);
approval of related party transactions (voices of the interested shareholder are not taken into account);
failure by the shareholder of the mandatory redemption (a shareholder shall vote only 30% of the shares);
the election of the members of the audit Committee (the votes of shareholders who are officers or members of the Board of Directors of the company are not taken into account);
placement by the company of preferred shares (holders of preferred shares vote on certain issues on the agenda, and upon the occurrence of the statutory conditions on all questions of the agenda);
5) other violation of the procedure of preparing, convening and conducting the General meeting of shareholders required by law and the articles of Association of the Issuer. Other violations of the procedure for preparing, convening and conducting the General meeting of shareholders include:
nonobservance of the form of notification on holding the General meeting;
the meeting is at an address different from the address specified in the notice of the meeting;
unjustified refusal of admission of persons entitled to participate in the meeting, the General meeting of shareholders;
violation of the procedure of election of the Chairman and Secretary of the meeting;
failure to comply with the requirements for the content of the ballots;
failure to comply with the requirements to the content of Protocol and report on voting results, and minutes of the General meeting of shareholders.
As for the second group of violations, the law identifies the grounds for which the decision of the General meeting are valid irrespective of their appeal in court. These are the absolute grounds for recognition of decisions of General meeting of shareholders invalid. If these grounds the court finds the decision of the General meeting of shareholders is invalid regardless of the impact of such violations on the results of the voting and violations of the rights of the shareholder. Such bases include the following circumstances:
1. Decisions on issues not included in the agenda (except for the case when the voting was attended by all the shareholders). The list of issues included in the agenda of the General shareholders meeting, approved at a meeting of the Board of Directors of the company at which the decision on holding of the General meeting of shareholders. Thus, decisions on matters not on the Board of Directors the agenda is not allowed.
2. Decision making in violation of the competence of the General meeting of shareholders. The list of issues referred to competence of the General meeting of shareholders, specified in article 48 of the Federal law "On joint stock companies". It should be noted that the extension specified in the law list, including the Charter, is not allowed.
3. The absence of a quorum for holding the General meeting of shareholders or the absence of the majority required for the adoption of a particular issue. As a General rule, the quorum for holding the General shareholders meeting is 50% plus one share. If the agenda of the General meeting of shareholders includes issues, voting on which is carried out by different composition of voters, determination of quorum for decision-making on these issues is carried out separately. The absence of a quorum for decision-making on issues, voting on which is performed by one composition of voters shall not prevent the adoption of decisions on issues the voting on which is carried out by another composition of voting for the adoption of which a quorum is present.
Summary
Developing a strategy for the protection of the rights and legitimate interests by challenging the decisions of the General meeting of shareholders, you need to pay attention to the following aspects:
1. The decisions taken at the General meeting of shareholders may be challenged in state arbitration and in the arbitration court. The transfer of the case to an arbitration court is possible only in virtue of an arbitration agreement between the parties to the proceedings, and involves the following risks:
the risk of failure of the arbitral Tribunal to adjudicate on appeal the decisions of the General meeting of shareholders because of nepodvijnosti the dispute to the arbitral Tribunal;
the risk of subsequent cancellation of the state arbitration court of the decision of arbitration court on a dispute concerning appeals against decisions of the General meeting of shareholders, because of nepodvijnosti the dispute to the arbitral Tribunal.
2. A lawsuit challenging the decisions taken at the General meeting of shareholders may be a person who has the status of a shareholder of the Issuer company as on the date of the adoption of the contested decision, and at the time of consideration of such a claim. In this case the person was not present at the controversial meeting or vote against the impugned decisions.
3. The grounds for appeal of the decisions of the General meeting of shareholders, is the violation of the provisions of the law and of the Charter regulating an order of preparation, convocation and holding of General meetings of shareholders.