2012 и 2013 г.г. ознаменуются вступлением в силу важных новелл в корпоративном праве России. Эти новеллы касаются обществ с ограниченной ответственностью, акционерных обществ и регистрации субъектов хозяйствования. Новеллы регулируют отношения кредиторов хозяйственных обществ и др. субъектов хозяйственной деятельности.
January 16 2012
Introduction
Restriction of creditors’ rights under Law on Limited Liability Companies
Minor changes to creditors’ rights under Law on Joint Stock Companies
New source of information for potential creditors
Comment
January 1 2012 and January 1 2013 mark the entry into force of new rules to protect the rights of creditors of limited liability companies and joint stock companies incorporated under Russian law. These new rules are set out in the Law on Amendments to Certain Legislative Acts Revising the Methods of Protection of Creditors’ Rights upon a Reduction in Charter Capital (228-FZ), dated July 18 2011. The law amends:
- the Law on Limited Liability Companies (14-FZ);
- the Law on Joint Stock Companies (208-FZ); and
- the Law on the State Registration of Legal Entities and Individual Entrepreneurs (129-FZ).
Restriction of creditors’ rights under Law on Limited Liability Companies
The Law on Limited Liability Companies requires a limited liability company to reduce its charter capital if the value of the company’s net assets – that is, the amount of assets less the amount of liabilities – falls below the level of its charter capital. If the value of the company’s net assets falls below the statutory minimum charter capital (at present, Rb10,000), the company will be subject to liquidation. The new law amends the preconditions and the procedure for such a reduction in charter capital, with effect from January 1 2012. Most significantly, a reduction in charter capital is required if the value of the company’s net assets at the end of the third or any subsequent financial year remains below the amount of the charter capital – previously, this requirement was triggered at the end of the second financial year. Furthermore, the company’s net asset value must have fallen below the charter capital for two consecutive years (not one year, as previously). Many companies will benefit from this extension of the time that a company’s net asset value may remain below the amount of its charter capital; however, the change will be particularly welcome for start-ups, which often take several years to generate sustainable profits.
The law further amends the rights of creditors of limited liability companies in connection with a reduction in charter capital. These rights are significantly restricted. A company is no longer required to notify creditors of a reduction individually and in writing. Instead, the company must notify the registration authorities within three business days of the adoption of the relevant resolution. In addition, the reduction must be announced twice in print publications that publish information on the state registration of legal entities. The announcement must contain detailed instructions on how creditors can make claims against the company. As previously, creditors may demand the early fulfilment of their claims against the company. If such early fulfilment is impossible, the creditors may demand the termination of the relevant obligation and seek compensation for damages. The claims must be filed with the company within 30 calendar days of the final announcement of the capital reduction.
However, creditor claims that previously arose automatically are now excluded in certain cases:
- Creditors may submit only such claims as arose before the public announcement of the charter capital reduction.
- These claims must be enforced in court within six months of the date of the second public announcement of the capital reduction. This change significantly reduces the statute of limitations for such claims, which previously fell under the general three-year limitation period under the Civil Code.
- The courts may reject a creditor’s claim if the company proves that:
- the capital reduction does not affect the creditor’s rights; or
- the security provided is sufficient to secure the fulfilment of the relevant obligations.
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The rejection of claims on the grounds that creditors’ rights have not been violated may prove particularly relevant in practice. In many cases it may be difficult for creditors to argue that a capital reduction alone creates an additional risk that the company will not fulfil its claims, especially if the company’s reduced charter capital remains well above the minimum charter capital of Rb10,000. It is likely that the courts will often reject creditors’ claims on this rationale.
The new law creates a new right for potential creditors of limited liability companies. Any interested party may, at any time, request information from the company about its net asset value. Such information must be provided on the company’s premises within three calendar days of the request. This new right will allow potential creditors to familiarise themselves with the company’s net asset value before entering into transactions with it.
Minor changes to creditors’ rights under Law on Joint Stock Companies
The Law on Joint Stock Companies already incorporates most of the rules which are being introduced into the Law on Limited Liability Companies. Thus, the new legislation will result in a harmonisation of the rights of creditors of limited liability companies and joint stock companies in connection with a reduction in charter capital. Moreover, the new legislation makes minor amendments to the rights of potential creditors of joint stock companies. As in the case of limited liability companies, an interested party may, at any time, require a joint stock company to grant access to information on the company’s net asset value, and the relevant information must be provided on the company’s premises within seven calendar days of the date of the request.
New source of information for potential creditors
The new law provides for the establishment of a new source of information for potential creditors of limited liability companies and joint stock companies. From January 1 2013 corporate and financial information about Russian companies will be available at the Unified Federal Register of Information on the Operation of Legal Entities. This new register will be additional to the existing state register of legal entities. It will contain information to be published in accordance with the Law on the State Registration of Legal Entities and Individual Entrepreneurs, as well as including additional data on reorganisation, insolvency and liquidation proceedings, net asset value and activity licences. Information contained in the new register will be publicly available online. Once established, it will provide potential creditors with a more complete picture of a Russian company’s operations.
The new law introduces amendments to the rights of creditors of limited liability companies in connection with a reduction in the company’s charter capital. These rights are significantly restricted and are more consistent with the rights of creditors under the Law on Joint Stock Companies. However, potential creditors may now, at any time, request information from limited liability companies and joint stock companies on the company’s net asset value. Furthermore, as of January 1 2013, potential creditors will be able to obtain additional information on the operations of Russian companies, which will allow creditors to examine more thoroughly the legal and financial status of such companies before entering into transactions with them.
For further information on this topic please contact Hannes Lubitzsch at Noerr by telephone (+7 495 799 56 96), fax (+7 495 799 56 97) or email (hannes.lubitzsch@noerr.com)