Models of corporate governance. Corporate governance and corporate control

Of course, the primary form of corporate control is shareholder control, which, as already mentioned in the previous chapter of this study, is proposed to be divided into two forms: -

absolute (direct) shareholder control, which provides shareholders who have required amount votes, the ability to directly accept or reject certain decisions; -

relative (indirect) shareholder control, the essence of which is that the owners of small blocks of shares (minority shareholders), although they cannot directly accept or reject certain decisions, can control the legality and fairness of the actions of the owners of large blocks of shares (majority shareholders) and managers of the company, their integrity and reasonableness.

At the same time, without exception, all researchers dealing with the practice of applying shareholder legislation recognize that the formation of shareholder control as the primary and organizing form of corporate control is carried out directly through the mechanisms of financial markets or capital markets, in the structure of which the most important place is occupied by the securities market, with a special specific goods - securities.

The concept of a security and the procedure for its circulation in the current Russian legislation are disclosed in the Federal Law “On Joint Stock Companies”, and in the Federal Law “On the Securities Market”, and directly in the Civil Code of the Russian Federation. However, the formulations of the concept of a security contained in these laws are somewhat different from each other.

Yes, Art. 142 of the Civil Code of the Russian Federation defines a security as a document certifying, in compliance with the established form and mandatory details, property rights, the exercise or transfer of which is possible only upon presentation. Article 143 of the Civil Code of the Russian Federation also includes shares as securities, the definition of which is more relevant for us from the point of view of this study.

The Federal Law “On Joint-Stock Companies” contains a list of types of securities placed by a joint-stock company: shares, bonds; securities convertible into shares; other securities provided for by the legal acts of the Russian Federation on securities. At the same time, paragraph 1 of Art. 2 of this law emphasizes that shares certify the obligatory rights of company participants (shareholders) in relation to the company.

The Federal Law “On the Securities Market” defines a share as an issue-grade security that secures the rights of its owner (shareholder) to receive part of the profit of the joint-stock company in the form of dividends, to participate in the management of the joint-stock company and to part of the property remaining after its liquidation. In this case, the share is a registered security. And in accordance with Art. 2 of the said law, an issue-grade security is any security, including uncertificated paper, which is characterized simultaneously by the following characteristics: it secures a set of property and non-documentary property rights, subject to certification, assignment and unconditional implementation in compliance with the form and procedure established by this Federal Law; posted in releases; has equal volume and terms of exercising rights within one issue, regardless of the time of acquisition of the security.

From the above definitions it follows that the concept of a security in general and shares in particular, given in the Civil Code of the Russian Federation, is not complete50. It seems appropriate to formulate it as follows: “A security is a document (including on an electronic medium) certifying, in compliance with the established form and mandatory details, property and non-property rights, the exercise and transfer of which are possible only with official confirmation of its existence.”

The fundamental difference between shares and other equity securities is that only shares are associated not only with a certain amount of rights, but also with the participation of the owner of this security in a specific joint-stock company. So, G.F. Shershenevich, comparing shares and bonds, wrote: “By their legal nature, a share and a bond are completely different: a) a bond is a debt obligation, and its owner is a creditor of the partnership, while a share represents the right to participate in an enterprise, and its owner is the owner of the latter ; b) a bond gives the right to a certain interest, a share - to a dividend, the cash and amount of which depends on the amount of net profit; c) upon liquidation, the property of the partnership is distributed among the shareholders only when all bonds are paid in full”51. Another pre-revolutionary jurist, V. Maksimov, shared a similar opinion. He identified two meanings for the action - material and formal. At the same time, he wrote: “In a material sense, a share is the right to participate in an enterprise. This right consists of: a) participation in the division of profits generated by the enterprise; b) participation in the division of property of the partnership during the liquidation of its affairs; c) participation in the management of the affairs of the enterprise. The first two powers are of a property nature, the third is personal. In a formal sense, a share is a document certifying the right to participate”52.

Current Russian legislation allows the existence of both documentary and uncertificated shares. Moreover, in practice, the shares of most joint stock companies are uncertificated. In accordance with the requirements of Article 149 of the Civil Code of the Russian Federation, in cases determined by law or in the manner established by it, a person who has received a special license can record the rights secured by a registered or order security, including in book-entry form (using electronic means). computer technology). A person who has made registration in a non-documentary form is obliged, at the request of the holder of the right, to issue him a document evidencing the secured right.

The Federal Law “On Joint-Stock Companies” distinguishes between ordinary and preferred shares, the main difference between which is the nature of income generation and the procedure for participation in the management of a joint-stock company, and therefore the procedure for exercising the shareholder form of corporate control. But from the point of view of this study, it is important to note the division of shares provided for by the Federal Law “On Joint Stock Companies” into placed, announced and additional shares.

Outstanding shares are shares purchased by shareholders. Their number and nominal cost determined by the charter of the joint stock company. The recognition of shares as placed does not depend on whether they are paid in full or in part, whether these shares were acquired during the creation of a joint stock company or purchased on the secondary market. The law establishes that even shares acquired and repurchased by the company itself, as well as shares that came into its possession as a result of their incomplete payment, are recognized as placed until their redemption, and their par value is included in the amount authorized capital.

Authorized shares are shares that the company has the right to place in addition to the placed shares. Their number and nominal value are determined by the charter of the joint-stock company. Until the moment of their placement, these shares are not included in the amount of the authorized capital, since the company, although given the opportunity to place them, has not actually exercised this opportunity during this period of time.

Fomicheva53 notes that there are two points of view on the issue of the legality of the division of shares into announced and placed as provided for by the Federal Law “On Joint Stock Companies”. Supporters of the first believe that this distinction is expedient, legally valid and corresponds to the nature of the authorized capital54. Supporters of another point of view, to which N.V. considers himself. Fomichev, believe that the declared shares are not shares by their legal nature. The fact is that such shares do not meet the requirements of Art. 142 of the Civil Code of the Russian Federation and do not certify any property rights. These shares have no value and are not included in civil circulation. At this time period, such shares simply do not actually exist, and no one can guarantee that such shares will appear in the future. Some of the supporters of this point of view believe that the introduction of authorized shares should be considered as a limitation on the number of shares that the company has the right to issue additionally without first changing the charter55.

Faced in practice with such inconsistency between the Federal Law “On Joint Stock Companies” and the Civil Code of the Russian Federation on the issue of the legal nature of declared shares, we consider it necessary not only to agree with the authors who defend the second point of view, but also to take a more active position. From our point of view, the legislator should remove the concept of “authorized” shares from the Federal Law “On Joint-Stock Companies”. This is due both to the weak legal elaboration of this concept and to the fact that its application in practice allows majority shareholders to abuse their rights.

Let's try to illustrate our point of view with a specific example.

At one of the largest city-forming enterprises in the Perm region, at a certain stage of the formation of a joint-stock form of corporate control, the distribution of share capital occurred in such a way that a controlling stake of 56% of shares ended up in the hands of 5 offshore companies, which, in fact, were managed by the same persons. There was no question of affiliate™, thanks to the use of nominee directors and nominee founders of offshore companies. But in addition to the above-mentioned majority shareholders, there was another large shareholder - a company owning 32% of the shares. It was she who became the subject who personally appreciated the difference in the legal structure of announced and placed shares.

In connection with the release new edition Federal Law “On Joint-Stock Companies” in August 2001, the joint-stock company faced practical problem amending the charter to bring it into compliance with the law. The issue of adopting a new version of the charter was considered at the board of directors of this joint-stock company. At the same time, along with the changes caused by the adoption of the new edition of the Federal Law “On Joint-Stock Companies,” the majority shareholders proposed introducing new provisions on authorized shares into the charter of the joint-stock company. Justifying their position, members of the board of directors - representatives of the majority shareholders - argued that this should be done solely for the purpose of further attracting investment in the development of the company. At the same time, the number and par value of authorized shares made it possible, if necessary, in the future, without making changes to the charter, to increase the authorized capital of the company by 100 times.

The actual purpose of the majority shareholders could only be determined by understanding the complexities of the current legislation. The fact is that in order to make any changes to the company’s charter (including in relation to changes in the authorized capital), it is necessary in accordance with clause 4 of Art. 49 of the Federal Law “On Joint-Stock Companies” a three-quarters majority of the votes of shareholders - owners of voting shares participating in this general meeting of shareholders. It is clear that a shareholder owning 32% of the shares could block the adoption of any changes to the charter (if he took part in this meeting of shareholders). As for the further placement of authorized shares, such a decision can be made at a general meeting of shareholders by a simple majority of those present. Thus, having held at the first general meeting of shareholders the issue of introducing amendments to the charter of the joint-stock company related to the declared shares, at the next general meeting the shareholders who collectively own more than 50% of the shares could safely decide on the placement of previously announced shares (including including by closed subscription). The opposing company's stake would have turned from 32% to 0.3%. At the same time, the widest possible opportunities would open up for majority shareholders to make any further changes to the company’s charter. Control over the joint stock company would become complete.

Such subtleties of Russian legislation are difficult for foreign investors to perceive. It is therefore not surprising that the process of their involvement in Russian economy after a number of “erosions” similar to the one described, it is proceeding very slowly, although it is declared as a state priority.

Based on the above, we consider it necessary to remove the concept of “authorized” shares from the Federal Law “On Joint Stock Companies”. From our point of view, this will significantly reduce the number of unfair manipulations with share capital, increase the chances of shareholders to protect their property and non-property interests and make the process of attracting foreign investment more real.

When the concept of “authorized” shares is removed from the Federal Law “On Joint Stock Companies,” the definition of additional shares should also change. Currently additional shares It is customary to consider shares within the number of authorized shares, through the placement of which the authorized capital of the company is increased. From our point of view, the issue of increasing the authorized capital of a joint-stock company and the issue of the procedure and mechanisms for the placement of shares (approval of the prospectus for the issue of shares through which the authorized capital is increased) should be resolved within the same framework general meeting shareholders. Moreover, by a majority vote of the 3L shareholders present at this meeting. In this case, additional shares may be considered, through the placement of which the authorized capital of the company is increased after the adoption of an appropriate decision to increase the authorized capital and approval of the issue prospectus and until the approval of the report on the placement of this issue of shares. After the actual increase in the authorized capital and approval of the report on the placement of the issue of shares, these shares become issued.

Corporate governance characterizes the system of the highest level of management of a joint-stock company. In 1932, the book “Modern Corporation and Private Property” by A. Burley and G. Means was published, which for the first time addresses the issues of separation from management and control from ownership in joint-stock companies. This resulted in a new layer appearing professional managers and development, since in 200 large companies 58% of assets were controlled.

Corporate governance system is an organizational model that is designed, on the one hand, to regulate the relationship between company managers and their owners, and on the other, to coordinate the goals of various stakeholders, ensuring the effective functioning of companies. There are several models of corporate governance.

Basic models of corporate governance

The variety of national forms of corporate governance can be divided into groups that gravitate toward two opposing models:

• American, or outsider, model;
• Germanic, or insider, model.

American or outsider, model is a control model based on high level the use of corporate control mechanisms external to the joint-stock company, or market ones, or control over the management of the joint-stock company.

The Anglo-American model is typical for the USA, Great Britain, Australia, Canada, and New Zealand. Shareholders' interests represented big amount small investors isolated from each other who are dependent on the management of the corporation. The role of the stock market, through which control over the corporation's management is exercised, is increasing.

German, or insider, the model is a model for managing joint stock companies, based primarily on the use of internal methods of corporate control, or self-control methods.

The German model of corporate governance is typical for Central European countries, Scandinavian countries, and less typical for Belgium and France. It is based on the principle of social interaction: all parties interested in the activities of the corporation have the right to participate in the decision-making process (shareholders, managers, staff, banks, public organizations). The German model is characterized by a weak focus on stock markets and shareholder value in management, since the company itself controls its competitiveness and performance.

The American and German models of corporate governance represent two opposing systems, between which there are many options with predominant dominance of one or the other system and reflecting the national characteristics of a particular country. The development of a particular corporate governance model within a framework depends mainly on three factors:

• mechanism;
• functions and tasks;
• level of information disclosure.

Japanese model of corporate governance formed in the post-war period on the basis of financial and industrial groups (keiretsu) and is characterized as completely closed, based on bank control, which reduces the problem of managerial control.

Family model of corporate governance has spread throughout all countries of the world. Corporations are managed by members of the same family.

In the emerging corporate governance models in Russia the principle of separation of ownership and control rights is not recognized. The corporate governance system in Russia does not correspond to any of these models; further business development will be focused on several corporate governance models at once.

Conditions for applying the American corporate governance model

The American corporate governance system is directly related to the characteristics of national shareholding, which include:

• the highest degree of dispersion of the capital of American corporations, as a result, as a rule, none of the groups of shareholders claims special representation in the corporation;
• the highest level of liquidity of shares, the presence of a highly developed system, which allows any shareholder to quickly and easily sell their shares, and an investor to buy them.

The key forms of market control for the American market are numerous mergers, acquisitions and buyouts of companies, which provide effective market control over the activities of managers through the market for corporate control.

Reasons for using the German corporate governance model

The German model arises from factors directly opposite to those that give rise to the American model. These factors are:

• concentration of share capital among various types of institutional investors and a comparatively lower degree of its dispersion among private investors;
• relatively weak development of the stock market.

American model of corporate governance

Typical management structure of an American corporation

The highest governing body of the corporation is the general meeting of shareholders which is carried out regularly, at least once a year. Shareholders take part in the management of the corporation by participating in voting on issues of introducing amendments and additions to the charter of the corporation, electing or removing directors, as well as on other decisions that are most important for the activities of the corporation, such as reorganization and liquidation of the corporation, etc.

At the same time, shareholder meetings are largely formal in nature, since shareholders have quite a limited opportunities participate in the management of the corporation, since the main burden of real management of the corporation falls on the board of directors, which is usually entrusted with the following main tasks:

• resolving the most important general corporate issues;
• appointment and control over the activities of the administration;
• control of financial activities;
• ensuring compliance of the corporation's activities with current legal norms.

The primary responsibility of the board of directors is to protect the interests of shareholders and maximize their wealth. He must provide a level of management that guarantees growth in the value of the corporation. IN last years The trend towards increasing the role of the board of directors in corporate management has become increasingly noticeable. This is manifested primarily in the control of financial condition business Financial results The work of the corporation is reviewed at meetings of the board of directors, as a rule, at least once a quarter.

Members of the board of directors, being representatives of shareholders, are responsible for the state of affairs in the corporation. They may be held administratively and criminally liable in the event of a corporation's bankruptcy or committing actions aimed at obtaining their own benefit to the detriment of the interests of the corporation's shareholders.

The size of the board of directors is determined based on the needs of effective management, and its minimum number in accordance with state laws can be from one to three.

The board of directors is elected from internal and external (independent) members of the joint-stock company. The majority of the board of directors consists of independent directors.

Internal members are selected from among the corporate management and serve simultaneously executive directors and company managers. Independent directors are persons who have no interests in the company. They become representatives of banks and other companies with close technological or financial connections, famous lawyers and scientists.

Both sets of directors, or in other words, all directors, are equally responsible for the affairs of the company.

Structurally, the board of directors of American corporations is divided into standing committees. The number of committees and the areas of activity they carry out are different in each corporation. Their task is to develop recommendations on issues adopted by the board of directors. The most common committees on boards of directors are governance and wages, audit committee (audit committee), financial committee, election committee, operational committee, in large corporations - public relations committees, etc. At the request of the American Securities and Exchange Commission, audit and remuneration committees must be in every corporation.

The executive body of a corporation is its directorate. The board of directors selects and appoints the president, vice presidents, treasurer, secretary and other officers of the corporation as provided for by its charter. The appointed head of a corporation has very great authority and is accountable only to the board of directors and shareholders.

German corporate governance model

Typical management structure of a German corporation

The typical management structure of a German company is also three-level and is represented by a general meeting of shareholders, a supervisory board and a management board. The supreme governing body is the general meeting of shareholders. His competence includes resolving issues typical for all management models of joint stock companies:

• election and dismissal of members of the supervisory board and management board;
• the procedure for using the company's profits;
• appointment of an auditor;
• making changes and additions to the company's charter;
• change in the company's capital;
• liquidation of the company, etc.

The frequency of shareholders' meetings is determined by law and the company's charter. The meeting is held at the initiative of management bodies or shareholders, owners of at least 5% of shares. The process of preparing a meeting includes the obligation to pre-publish the agenda for the meeting of shareholders and the options proposed by the supervisory board and the management board for each issue. Any shareholder, within a week after the publication of the agenda, can propose his own solution to a particular issue. Decisions at the meeting are made by a simple majority of votes, the most important ones by three-quarters of the votes of the shareholders present at the meeting. Decisions made at the meeting come into force only after they are certified by a notary or court order.

Supervisory Board carries out the functions of control over the economic activities of the company. It is formed from representatives of shareholders and employees of the company. In addition to these two groups, the supervisory board may also include representatives of banks and enterprises with close business connections with this company. High representation of company employees on the supervisory board, whose share reaches 50% of seats, is distinctive feature German system formation of the supervisory board. To avoid conflicts of interest between shareholders and employees represented on the supervisory board, each of these parties has the right of veto over the election of representatives of the opposing group.

The main task of the supervisory board is to select company managers and monitor their work. The scope of resolving issues of strategic importance within the competence of the supervisory board is clearly defined and includes issues of acquisition of other companies, sale of part of assets or liquidation of an enterprise, consideration and approval of annual balance sheets and reports, major transactions and the amount of dividends.

Decisions of the supervisory board are made by a three-quarters majority vote.

The quantitative composition of the supervisory board depends on the size of the company. The minimum composition must be at least three members. German law requires large supervisory boards.

Members of the supervisory board are elected by shareholders for a period of four business years after the start of operations. Before the expiration of their terms of office, members of the supervisory board may be re-elected by the general meeting of shareholders with a three-quarters majority vote. The Supervisory Board elects a chairman and deputy chairman from among its members.

The board is formed from the company's management. The board may consist of one or more persons. The board is entrusted with the task of direct economic management company and responsibility for the results of its activities. Members of the management board are appointed by the supervisory board for a term of up to five years. Board members are prohibited from engaging in any commercial activities in addition to the main job, as well as participate in the management bodies of other companies without the consent of the supervisory board. The work of the board is based on a collegial basis, when decisions are made based on consensus. IN difficult situations When consensus cannot be achieved, decisions are made by voting. Each board member has one vote; a decision is considered adopted if a majority of board members vote for it.

The main differences between the American model and the German one

The main differences between the considered corporate governance models are as follows:

• V American model The interests of shareholders are, predominantly, the interests of small private investors, isolated from each other, who, due to their disunity, are highly dependent on corporate management. As a counterbalance to this situation, the role of the market is increasing, which, through the market of corporate control, exercises control over the management of joint-stock companies;
• in the German model, shareholders are a collection of fairly large block holders, and therefore they can unite with each other to pursue their common interests and on this basis have firm control over the management of the joint-stock company. In such a situation, the role of the market as an external controller of the activities of society is sharply reduced, because the corporation itself controls its competitiveness and its performance results;

From the above, it follows that there is a difference in the functions of the board of directors. In the American model, this is the board of directors as a board of governors, which essentially manages all the activities of the joint-stock company and is responsible for it to the meeting of shareholders and state control bodies.

In the German management model, there is a strict separation of management and control functions. In it, the board of directors is a supervisory board, or more precisely, a controlling body, and not a body that exercises the full management of the joint-stock company. Its control functions are directly related to the possibility of quickly changing the current management of the corporation if its activities cease to satisfy the interests of shareholders. Participation in supervisory boards of representatives of other corporations allows the corporation to take into account not only the interests of its shareholders, but also the interests of other corporations that are in one way or another connected with its activities. As a result, the interests of individual groups of shareholders of a German corporation usually do not prevail, since the interests of the company as a whole come first.

as a manuscript

MOSCOW STATE UNIVERSITY

named after M.V. Lomonosov

FACULTY OF LAW

MASTER'S PROGRAM

Master's program " Corporate law»

"CORPORATE GOVERNANCE AND CORPORATE CONTROL"

Master's dissertation

Scientific director

Doctor of Law, Professor

Shitkina Irina Sergeevna

Date of defense: “___”_____________ 2012

Grade: ____________________________

Introduction..……………………………………………………………..……. 3

Chapter 1. Corporate governance and corporate control: concept, content, principles

§1. Corporate governance

1.1. Concept, main features…………………………………….. 10

1.2. Principles, sources…………………………………………………………… 16

1.3. Models (doctrines) of corporate governance…………………………. 22

§2. Concept, classification, degrees of corporate control……… 26

Chapter 2. Cross-shareholding as a particular example of corporate control

§ 1. Are common character traits cross-shareholding......41

§ 2. Ways to resolve the problem of cross-shareholding

2.1. At the legislative level…………………………………………………….. 46

2.2. At the level of law enforcement practice ………………………… 54

Chapter 3. The Institute of Independent Directors as a way to avoid conflicts in the corporate governance process

§1. History of the development of the institute of independent directors.…….…….… 58

§2 Qualification requirements applicable to independent directors……………………………………………………………………………………………………………65

§3. Professional communities of independent directors………. 75

Conclusion…………………………………………………..…………… 78

Bibliography

Regulatory legal acts………………….……………………….……… 81

Materials of judicial practice…….…………………………………….. 82

Literature………………………………………………………………………………… 83

List of dissertation studies………………………………… 90

INTRODUCTION

Relevance of the research topic

Corporate relations not so long ago, but thoroughly entered the legal and economic life of Russia, and, in our opinion, remain one of the most promising types of legal relations for research. It’s only been twenty years since we live according to the laws of the market, consistently developing corporations. The most important issues in regulating the activities of corporations are the issues of compliance of the level of corporate control and corporate governance in business companies with high standards dictated by experience foreign countries. The development of corporate governance is currently of key importance as a decisive way to attract investment into the economy of a particular society throughout the country. The development of both the economic power of the enterprise, as well as positive law and scientific thought in a given direction also depends on the level of development of corporate control, the ability of the legislator and the judicial system to protect lost control, as well as the desire and ability of shareholders to make it transparent and accessible.

Let us note that there is not enough serious research by pre-revolutionary authors on the issues that interest us. Among the few, it is worth highlighting A.I. Kaminka, L.I. Petrazhitsky, I.T. Tarasova, G.F. Shershevich. Domestic authors, and modern scientific thought in general, have certainly advanced further, however, compared to the number of works devoted to these issues in the West, we are undoubtedly lagging behind. Recently, the very concept of approaches to corporate governance and control has been changing. Outlined by the Draft of the first part of the Civil Code Russian Federation the changes will undoubtedly have a positive impact on the development of corporate relations in Russia and will serve the goals of achieving the maximum level of legal certainty in matters of corporate control and management. It is worth noting that law enforcement practice, for its part, also creates revolutionary precedents in some way. Recent Resolutions adopted by the Supreme Arbitration Court of the Russian Federation allow us to draw a conclusion about the ongoing process of improving the foundations and principles of corporate governance and corporate control, in particular, by introducing a presumption of bad faith general director company in the event of recovery of losses from it in court, establishing the obligation of the court, in the case of recovery of losses, to take measures to determine their size, as well as by “lifting the corporate veil”.

In this work, an attempt is made to analyze such phenomena as corporate governance and corporate control, to study the patterns and features of the particular manifestation of these phenomena in the form detailed study institute of independent directors and cross-shareholding. These issues are certainly important and require thorough study and legal analysis.

The problems described in this work are relevant, since they are not divorced from the real situation, but are ubiquitous in economic life most companies, or, in the case of the institution of independent directors, require wider application.

It is worth noting that the main analysis of the problems in the work was done using examples of an open joint-stock company, since, as noted by S.N. Brother, a joint stock company is a legal entity of a higher stage of development. In this regard, when using such terms as “company”, “society”, “corporation”, “issuer”, the author of this work in most cases will mean joint stock companies. Of course, some analysis and some recommendations present in this study will directly relate to limited liability companies; this will be explicitly stated during the study.

Goals and objectives of the study

Turning to the objectives of this study, we note that the key among them are the consideration of such legal phenomena as corporate governance and corporate control, the study of their features, patterns of historical development, the possibility of their mutual influence and development prospects. Having dwelled on particular examples of corporate governance and corporate control (cross-ownership of shares and the institution of independent directors), the practical goal of the work is to develop issues related, inter alia, to the proposal to apply the analogy of the law in relation to situations arising from cross-ownership of shares, as well as proposal for the gradual introduction of the institution of independent directors in all joint-stock companies.

Within the framework of the stated goals, during the study, the author sets himself the following tasks:

• formulating definitions of corporate governance and corporate control;
• analysis of existing patterns of corporate governance and corporate control in corporations;
• researching the phenomenon of cross-shareholding and developing possible recommendations to overcome the problems arising in such a situation;
• drawing up appropriate arguments justifying the need for the widespread introduction of the institution of independent directors.

Methodological basis dissertations I compose general scientific and special scientific methods of cognition. The author used dialectical-materialistic, comparative-legal, historical, and systemic methods. When writing the work, methods of induction and deduction, analysis, comparison, analogy, and abstraction were used.

Numerous scientific works have been published theoretical basis research. Thus, the author analyzed the works of S.N. Bratusya, V.V. Vitryansky, Ya.M. Gritansa, E.P. Gubina, D.I. Dedova, V.V. Dolinskoy, M.G. Iontseva, D.V. Lomakina, S.D. Mogilevsky., E.A. Molotnikova, O.N. Sadikova, D.I. Stepanova, E.A. Sukhanova, M.Yu. Tikhomirova, Yu.K. Tolstoy, I.S. Shitkina and others. The empirical basis of the work was the sources of national law of Russia, the USA and a number of countries of the European Union, as well as sources of international law.

The degree of development of the topic.

It is worth noting that there are serious works on a number of issues in the dissertation; many researchers have analyzed this or that problem quite deeply. In particular, quite a lot of research has been devoted to the general problems of corporate governance and corporate control, among them, outlined in this work, a textbook edited by E.P. Gubin, works by D.I. Dedova, V.I. Dobrovolsky, T.V. Kashanina, D.V. Lomakina, A.E. Molotnikova, S.Yu. Filippova, textbook under general edition I.S. Shitkina and many others. However, relatively specific examples the above phenomena, in particular the institution of independent directors, the author of the work identified certain gaps in the research. Among the few works devoted to “independent directors,” we note the study by E.O. Dmitrieva. In our opinion, the issue of cross-shareholding is not sufficiently developed in modern literature. Serious research in this area was carried out only by D.A. Arkhipov and I.S. Shitkina. Thus, we note that there is no sufficient degree of elaboration of the specific issues investigated in this work. The author, to the best of his ability and capabilities, expresses an attempt to analyze all the available material on insufficiently developed issues in this study, as well as to continue the study of the identified issues within the framework of other works.

The following provisions are introduced into the defense, which the undergraduate arrived at in the course of his research:

1. Corporate governance is a continuous process associated with the adoption by the authorized bodies of the company of decisions that determine the activities of the latter. The author of the work does not consider under corporate governance the ability of other persons to determine the decision-making of a company, if these persons do not belong to the management bodies of such a company.
2. It is necessary to distinguish between corporate control and control over a corporation, due to the fact that only the participants of the corporation (shareholders or members of the company) have corporate control, while control over the corporation, in addition to the persons indicated above, can also be exercised by third parties.
3. During the analysis, it was established that the concept of “independent director” does not exist in the current legislation. The author supports the point of view that an independent director should be understood as individual, who is a member of the Board of Directors (supervisory board) of a company that does not have financial or any personal connections with the joint-stock company, including its shareholders, authorized persons of other management bodies of the company, as well as other signs of affiliation.
4. To protect the rights and legitimate interests of shareholders from violations during the management of the corporation, it is necessary to more actively involve “independent directors” in the management of joint stock companies.
5. As a result of the study, the author came to the conclusion that it is inadmissible to introduce a legislative ban on cross-ownership of shares. Several ways to resolve the problem have been proposed, the advantage among which is the option associated with the introduction of a legislative restriction on the ownership of shares of the parent company by a subsidiary in a percentage indicated (less than 10% for open joint-stock companies; less than 50% for limited liability companies).

Structure of this dissertation provides an introduction, the main part, presented in three chapters, the first of which provides general basics corporate governance and corporate control, in the second and third chapters the author examines special cases of corporate governance and control - the phenomenon of cross-ownership of shares (Chapter 2) and the peculiarities of the functioning of the institution of independent directors (Chapter 3), as well as a conclusion and bibliography.

CHAPTER 1. CORPORATE GOVERNANCE AND CORPORATE CONTROL: CONCEPT, CONTENT, PRINCIPLES

§1. Corporate governance

1.1. Concept, main features

When starting any research paper, it is necessary to clearly define the concepts that will be used during its writing. So, this work is devoted to the study of such phenomena as “corporate governance” and “corporate control”. Whether these concepts are identical or not, the opinions of the authors differ. We, of course, adhere to the opinion of those experts who do not identify these concepts. So, according to the position of E.P. Gubina, corporate governance is a constant, successive provision of corporate interests and is expressed in relations of corporate control.

The presence of a corporate governance system is, in fact, a key feature of a corporation. Management in a corporation is impossible without the existence of certain compromises between managers, owners and, in other words, employees of the company. How long the compromise state will persist depends on how the corporate governance system is structured in society. This is the economic and social significance of management.

The worldwide use of the term “corporate governance” was brought by English law, where “corporate governance” means “administration”, “management” of a corporation. Currently exists a large number of definitions of the concept of corporate governance. So, E.P. Gubin notes that corporate governance is a constant, successive provision of corporate interests and is expressed in relations of corporate control. According to the position of I.S. Shitkina, corporate governance is a set of influence methods or a process by which the activities of corporations are managed and controlled.

Corporate governance is a kind of mechanism, a methodology that allows you to introduce general principles of making effective decisions into the activities of a company. This mechanism, according to the author, consists of a certain set of elements, tools, procedures, etc., ensuring the company creates and maintains a system of “checks and balances” necessary for making decisions that would take into account the interests of all stakeholders to the greatest extent, Abuses in the process of creating and using resources common to all were eliminated as much as possible.

A.A. Serebryakova points out that: “the process of developing, adopting and implementing a decision by the management bodies of a business company should ... be understood as a process of corporate management of a business company.”

Corporate governance is a system of interaction between shareholders and the management of a company (joint stock company, corporation), including its board of directors, as well as with other stakeholders, through which the rights of shareholders are exercised; a set of mechanisms that allow shareholders (investors) to control the activities of company managers and resolve problems that arise with other influence groups.

Let's try to give our definition of the term “corporate governance”. From our point of view, this is a continuous process associated with the adoption by authorized bodies of society of decisions that determine the activities of the latter. In the interests of defending this definition, it should be noted that the author of this dissertation distinguishes between the concepts of “management” and “the right to manage.” Any shareholder of a corporation has the right to manage. However, the designated person does not control the corporation. The management bodies are generally considered to be the general meeting of shareholders, the board of directors, etc. As P.A. correctly noted back in the century before last. Pisemsky, “management belongs to all the comrades collectively, gathered in a general meeting.” As T.V. Morozova rightly notes, when forming a unified will of the organization, making decisions, their execution and control over execution, it is appropriate to talk about the management bodies of the corporation. Thus, it is not a specific shareholder that controls the corporation, but a governing body.

In general, there is a broad understanding of corporate governance, according to which corporate governance includes the activities of all (any) persons involved in managing the company. In a narrower understanding of this term, corporate governance represents the activities of the bodies of a legal entity. For the purpose of conducting this study, the author will consider this concept in its narrow meaning.

Domestic legal scholars highlight the main characteristic features of corporate governance. So A.A. Serebryakov with reference to S.D. Mogilevsky identifies the following features:

• corporate governance is possible only where Team work people is carried out in very specific organizations (economic societies), which are characterized as legal forms pooling the capital of participants;
• Corporate governance, its main purpose, has an ordering effect on participants in society as members of the corporation and employees of the corporation, giving organization to the interaction of people;
• corporate governance is implemented within the framework of the management process through management relationships;
• Corporate governance requires a special implementation mechanism that represents the subjects of corporate governance.

V.V. Dolinskaya adds the following to the above features:

• limitation of liability and business risk;
• corporate principle of organizing affairs in a joint-stock company;
• democracy in the formation of bodies in a joint-stock company;
• separation of management and control functions in the bodies of the joint-stock company;
• the exclusivity of the competence of the management bodies of the joint-stock company and its formation on a residual basis;
• standardization of management;
• protection of the management bodies of the joint-stock company and their members from undue influence;
• the principle of public business, “transparency” of information;
• searching for compromises between the interests of owners, managers, employees, creditors (primarily bondholders), counterparties of consumers and society as a whole as goal setting;

Of course, all of these features of corporate governance require normative reinforcement as fundamental. Let us note that the Code of Corporate Conduct developed by the Federal Securities Commission of Russia, unfortunately, is only advisory in nature and cannot, by force of imperative influence, demand compliance with certain principles.

For our part, we consider it possible to add a mechanism for the liability of management bodies, including through the recovery of losses from responsible persons. This mechanism is inherent in absolutely all business companies and plays a fundamental role as the main regulator of corporate governance. We also believe that it is possible to include strict regulation of the activities of management bodies by local regulations among the features of a joint-stock company. As noted by Yu.A. Tikhomirov, corporate governance is characterized by a high degree of normative self-regulation. Within its framework, issues of the organization and activities of the company are resolved independently and responsibly - production, labor, structure, sales, contracts, etc. In this regard, the regulation of the activities of management bodies by local regulations is in modern conditions fundamental feature of an economic society.

1.2. Principles, sources of corporate governance

Being consistent in our research, we will not forget to indicate the fundamental principles of corporate governance of joint stock companies - its principles.

The basis for the development of principles of corporate governance in national legal orders is the Principles of Corporate Governance adopted in 1999 by the Council of the Organization for Economic Co-operation and Development (OECD).

As the Preamble suggests, the OECD Principles of Corporate Governance were adopted at the OECD Ministerial Meeting in 1999 and have since become an international reference for policymakers, investors, companies and other stakeholders around the world. The principles enshrined in this document regulate relations related to the creation of the basis for an effective corporate governance system, the rights of shareholders and the main functions of owners, equality of conditions for shareholders, the role of stakeholders in corporate governance, information disclosure and transparency, and the responsibilities of the board of directors.

The domestic document, which has absorbed the principles of corporate governance of the OECD, is the Code of Corporate Conduct, recommended for use by Order of the Federal Commission for the Securities Market of the Russian Federation dated April 4, 2002 N 421/r. Chapter 1 of this Code lists the principles that should guide participants in corporate relations, with the aim of, among other things, increasing the value of the company’s assets, creating jobs and maintaining the financial stability and profitability of the company. These include instructions, including:

• the practice of corporate behavior should provide shareholders with a real opportunity to exercise their rights related to participation in the company;
• corporate conduct practices should ensure equal treatment of shareholders who own an equal number of shares of the same type (category). All shareholders must be able to obtain effective protection if their rights are violated;
• corporate conduct practices must ensure that the board of directors strategic management the activities of the company and effective control on its part over the activities of the executive bodies of the company, as well as the accountability of members of the board of directors to its shareholders;
• and so on.

We will not dwell on the entire classification of corporate governance principles identified by the author during the study. We only note that the following scientists contributed to the study of this issue: T.V. Kashanina, E.A. Sudarkova, E.P. Gubin, I.S. Shitkina, S.D. Mogilevsky and others.

Turning to the sources of corporate governance, we note that we do not distinguish between the sources of corporate law in general and corporate governance in particular. In this regard, the author of this work considers the following sources of corporate governance:

• Constitution of the Russian Federation

So, I.S. Shitkina, among the fundamental principles enshrined in the fundamental law, notes, among other things, the right to self-defense and legal protection their rights and freedoms (Articles 45, 46 of the Constitution of the Russian Federation).

• Federal laws

which are undoubtedly external form expressions of law. The rules governing corporate relations are contained in part one of the Civil Code of the Russian Federation dated November 30, 1994 N 51-FZ. Special rules governing corporate governance, in relation to the Civil Code of the Russian Federation, are the rules enshrined in separate laws: Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies”; Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”; Federal Law of April 22, 1996 N 39-FZ “On the Securities Market”; Federal Law of December 3, 2011 N 380-FZ “On Business Partnerships” and many others.

• Other regulatory legal acts

The main subject of rulemaking in the case under consideration is, of course, the Federal Financial Markets Service of Russia, which is the federal executive body for the securities market and, by virtue of its powers provided for in Art. 42 of the Law on the Securities Market, adopts departmental regulations. Among these, we note Resolution of the Federal Commission for the Securities Market of the Russian Federation dated May 31, 2002 N 17/ps “On approval of the Regulations on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders.” In addition to the Federal Financial Markets Service of the Russian Federation, relations in the field of corporate governance are also regulated by norms. Contained in acts of the President of Russia and Resolutions of the Government of the Russian Federation.

• Internal documents, corporation charter

Deliberately not turning to the analysis of points of view regarding the attribution or non-attribution of the charter to the internal documents of the corporation, we note that these documents are undoubtedly a source of corporate governance. This point of view is shared by T.V. Kashanina, E.A. Sudarkova, S.I. Nosov, I.S. Shitkina and many other scientists. As noted by A.E. Molotnikov, “one can hardly agree with the opinion of some researchers about the conventionality of classifying local acts of joint-stock companies as sources of joint-stock law... It should be especially emphasized that it is in relation to joint-stock companies that local legal regulation is of significant importance."

• Code of Corporate Conduct

In conditions modern development stock market, legislative regulation principles of corporate governance, development of positive law, serious disagreements arise between managers - shareholders and minority shareholders of corporations. The latter require transparency in company management and availability of information about the company. In this regard, it is worth noting that in many developed countries, government and business circles have long developed special sets of rules - corporate governance codes - that regulate legal relations on corporate governance. In particular, such documents as the Cadbury Code in the UK, the Code of “Recommended Corporate Governance” prepared by the Confederation of Indian Industrialists, the German Corporate Governance Code “Corporate Governance Code” prepared by the Supreme Financial Committee of Malaysia and many others are known.

Note that legal status These documents vary from country to country. In some countries it is part of the overall package mandatory conditions requirements that a company must comply with in order for its securities to be listed on an exchange. In others, it may be a document that is purely advisory in nature and is not bound by any mandatory requirements.

In Russia, the Corporate Governance Code adopted by the Federal Commission for the Securities Market of the Russian Federation is of a recommendatory nature. Despite the rules issued by the Federal Financial Markets Service for the application of this Code, there are no sanctions for non-compliance.

However, nevertheless, large companies that strive for openness, are interested in attracting investments, as well as in order to undergo the IPO procedure, adopt their own codes of corporate governance (conduct) based on documents of the Federal Commission for the Securities Market (now the Federal Financial Markets Service of Russia). This is certainly a positive step in development. corporate culture and building a reasonable, fair corporate governance system.

A number of authors point out that the position of the Code of Corporate Conduct in the system of sources of law is ambiguous. It seems that it does not contradict paragraph 4 of Art. 103 of the Civil Code, since, unlike foreign codes of corporate governance (or, as they are often called, codes of best practices), it concerns not so much the competence of the management bodies of joint-stock companies, but rather their internal structure, the system of control over financial and economic activities of joint stock companies, information disclosure systems.

• Law enforcement practice

We agree with O.V. Osipenko, who on this issue noted the following: “in the end, it is worth maintaining proper institutional realism: judicial law enforcement practice in our country has long been a real normative source of rules governing corporate relations.

Today, we believe, there are no grounds to classify this issue as “controversial.” The decisions of the Constitutional Court obviously regulate and develop corporate relations. Among those indicated, we note, for example, Resolution of the Constitutional Court of the Russian Federation dated February 24, 2004 N 3-P, according to which “Judicial control is intended to ensure the protection of the rights and freedoms of shareholders, and not to check the economic feasibility of decisions made by the board of directors and the general meeting of shareholders, which have independence and broad discretion when making business decisions.” The author also sees no reason for not classifying the Resolutions of the Supreme Arbitration Court of the Russian Federation, which are mandatory for all Russian judicial bodies, as sources of corporate law.

1.3. Models (doctrines) of corporate governance

Unfortunately, today there are no deep doctrinal studies of the legal nature of corporate governance. Analysis of existing domestic works allows us to identify the following doctrines of corporate governance: (1) agency; (2) managerial (3) theory " social responsibility».

According to agency theory, as noted by A.A. Alexandrov, directors are employees of shareholders, to whom they are accountable and whose interests should be paramount for agents. In accordance with the “managerial” concept, directors act as managers with delegated powers, rights and responsibilities (i.e. their status is increased); they are subject to the same requirements as any decent person who acts honestly according to the law for the benefit of others. The theory of “social responsibility” expands the boundaries of the concept of “joint stock company”, which includes “other stakeholders”. The scope of the latter concept ranges from workers to the aggregate of workers, creditors, suppliers, consumers and even the local community.

Researchers of corporate governance problems identify some models of corporate governance. We agree with A.A. Aleksandrova, who points out that there is no single model of corporate governance, this is due to their derivativeness from the market economy models existing in a particular country. It is customary to distinguish the American, German, Japanese models of economic development, as well as, as noted by a number of authors, the emerging ones - Latin American and African.

The American model is built on market mechanisms for self-regulation of the economy. State intervention in the affairs of the corporation is minimal, the activity of participants is quite high, and the movement of capital is flexible. The governing body is the board of directors, which concentrates the functions of management and supervision.

In France, Germany and a number of other European countries, the Germanic, so-called, predominates. socially oriented model. Based on the name, distinctive characteristics This model is an efficiently operating system social protection population, a significant percentage of state property. The governing body has a two-tier structure and consists of a supervisory board, which includes independent directors, and a board of managers. This model has a clear separation of management and supervision.

In Southeast Asian countries (Hong Kong, Singapore, South Korea) the Japanese model is widespread. It is characterized by businesslike and rational interaction between employers, workers, and trade unions. The emphasis is on human factor, the strength of the spirit of collectivism. It is worth noting that the above models of corporate governance are not mutually exclusive; the interpenetration of elements of different models can lead to the creation of mixed models (for example, the Japanese-German model).

The Latin American model is characterized by forceful methods of state intervention in the economy, lack of competent management, corruption and criminalization. To the African model, researchers add underdeveloped labor relations and the use of low-skilled labor with low efficiency.

Based on the methods and techniques of corporate governance, some authors identify “outsider” and “insider” models of corporate governance, which correspond to either dual (bicameral) or single (unitary) boards of directors.

In countries with a highly developed capital market, market mechanisms for regulating the economy, where financing of private companies is carried out mainly not through bank lending, but by attracting funds from individual and institutional investors, the outsider model is inherent.

There is no concentration of shares in one hand in the respective company; share capital is distributed among many participants who, through special regulation, control the activities of managers. Regulatory mechanisms for corporate control have evolved to provide investors with the best possible information and to create relatively equal access to this information. The outsider model of corporate governance is common in the USA, Great Britain, Canada, New Zealand, and partly in Australia.

The insider management model is characterized by the concentration of share capital in the hands of one person or a related group of persons. Managers are often the main shareholders of a company. The stock market in countries with an insider model of building corporations plays a secondary role in relation to bank lending. The role of minority shareholders in the management of the company is minimal. The insider model meets the standards of corporate governance in a number of Scandinavian countries, Germany, Japan, Switzerland, and France.

We agree with many authors that the Russian model of corporate governance is characterized by the fact that often the owner and manager are the same person, or belong to the same group of shareholders (for example, V. Alekperov - OJSC Lukoil, V.N. Makhlai - OJSC Togliattiazot, O. Deripaska - UC RUSAL, etc.).

Of course, the reasons for this are the peculiarities of the privatization processes of the 80-90s. last century, the weakness of the Russian stock market, its instability and underdevelopment, insufficient legal framework that allowed company directors to minimum investment become beneficiaries of companies, legal nihilism.

In this work, the author makes an attempt, by introducing the institution of independent directors, to propose ways to solve the difficult problem associated with corporate governance in Russian corporations. We believe that the study, analysis and application of this institute will make corporate governance more accessible, transparent and civilized.

§2. Concept, classification, degrees of corporate control

Moving on to the definition of corporate control, we point out that V.V. Dolinskaya noted that the term “control” is interpreted ambiguously in the literature. In French jurisprudence, it was initially identified with verification and supervision. This meets the needs of management and law. In common law countries, control was understood as domination, which is more consistent with the needs of law and economics. I.S. Shitkina also points to different meanings this term in various legal systems. Thus, if in continental law control is considered as supervision, checking the activities of certain persons, then in common law control is understood as domination over a corporation.

E.P. Gubin gives, in our opinion, a fairly broad interpretation of corporate control, pointing out that the latter is defined as the ability of subjects of shareholder relations to ensure constant influence on strategic management decisions.

As noted by T.Yu. Basov, the essence of corporate control lies in the possibility of influencing the activities of the company and indirectly on its other participants, which is achieved through the formation of management bodies, making decisions at the general meeting on reorganization, liquidation, change constituent documents, approving transactions, paying dividends, distributing profits, determining the direction of the company’s activities, blocking decision-making and performing other actions aimed at obtaining material benefits, including those that may lead to significant changes in the essence of the company and (or) its participants.

Corporate control, according to M.V. Lavrov, is a type of corporate relationship in which a participant in a corporation is able to exert a decisive influence on the adoption of strategic and operational decisions of the controlled corporation.

Thus, the analysis of works on corporate control revealed some features, in the sense that there is a broad understanding of the term “corporate control” and a narrower one.

So, according to the expanded approach, corporate control is understood as control over the decision-making of a corporation both by its bodies (board of directors, general meeting of shareholders) and other persons (financial institutions, management, creditors, etc.).

In a narrow sense, corporate control is the ability to exert a decisive influence on decision-making, which is possessed only by participants in the corporation (shareholders or members of society).

DI. Stepanov distinguishes between the concepts of “control of a corporation” and “corporate control”. According to the approach of this author, situations in which management receives one or another control over the corporation, sometimes even more significant than the economic power possessed by the participants in the corporate entity, cannot be classified as corporate control in the strict sense of the word. Likewise, it is difficult to talk about corporate control in the strict sense of the word when it comes to the influence of creditors and other counterparties of a corporation on its existence. Both of these situations appear to represent special cases of control over a corporation in general, which, however, do not refer to corporate control in the strict sense of the word.

For the purposes of our research, we will consider corporate control in the narrow sense of the word, as it is interpreted by D.I. Stepanov.

We agree that in a traditional corporation there is an alignment of forces of influence - some participants who have common property more shares in the authorized capital, impose their will on other participants who have a smaller share in the authorized capital than the former. That is, there is always a desire in a corporation to establish corporate control.

According to the author of this work, Russian model corporate governance The main motivation for acquiring shares is participation in control. It is quite obvious that the vicissitudes of past years, associated, for example, with the shares of OJSC MMM, cause serious mistrust of potential investors in acquiring a small stake in the corporation. Only the achievement of one or another level of corporate control in the company gives the shareholder confidence in the inviolability of corporate foundations and compliance high standards management in the corporation. In addition, as noted by D.I. Stepanov, the less developed the legal regulation, the greater the incentive to concentrate corporate control and extract all sorts of benefits from it, without thinking at all about other participants in the corporation, because you don’t have to share with them, since their claims most likely will not receive any - effective legal protection.

If we turn to the classification of corporate control, then the classification proposed by E.A. Shimbareva is interesting, in our opinion.

Depending on the degree of influence exerted by the participant on the activities of the corporation, the author identifies minimum corporate control, which includes corporate rights listed in Art. 67 of the Civil Code of the Russian Federation, which is available to any participant in a corporation who has a minimum participation interest or one share of the corporation, and full corporate control, in which 100% of the authorized capital of the corporation belongs to the entity;

Depending on the opportunities provided to a corporation participant to manage the corporation: negative (blocking) corporate control, which, as a rule, does not allow the participant to carry out his decisions, but allows him to disorganize the activities of the corporation by exercising certain corporate rights. Possessing blocking corporate control, a participant, not being able to carry out his decision, can block decisions made by other participants. Positive corporate control, on the contrary, makes it possible to carry out its proposals at general meetings of the corporation’s participants;

Depending on the method of formation: consolidated and individual (some norms of the Law on Limited Liability Companies and the Law on Joint Stock Companies provide for the possibility of initiating the exercise of certain corporate rights not only by “single” participants with a certain share of participation or block of shares (individual corporate control), but and a group of participants that together have the same corporate control (aggregate or consolidated corporate control);

Depending on the presence of restrictions in the exercise of corporate rights by the participant: limited (truncated) and full. If a member cannot exercise any corporate rights, whether substantive or derivative, then its corporate control is truncated. Corporate control can be limited voluntarily, on the basis of law or a judicial act.

Despite the study in this work of corporate governance in the narrow sense of this phenomenon, it is nevertheless worth noting the forms of corporate control identified by most authors who adhere to a broad interpretation of corporate governance.

As noted by E.P. Gubin (he is supported by I.S. Shitkina, V.V. Dolinskaya, A.A. Kirilov), corporate control is shareholder (the ability to accept or reject certain decisions by shareholders who have the required number of votes), managerial (the ability of individuals to ensure management economic activities of the enterprise, continuity of management decisions and structure) and financial (the ability to influence the decisions of a joint stock company through the use of financial instruments and special means), each of which can be represented by different categories of legal entities and individuals.

As noted earlier, in our opinion, the main motivation for acquiring shares is participation in control in order to determine the directions of development of the corporation and its management production activities. Based on the above classification, corporate control can be different. A shareholder may own 25% of the shares plus 1 and not allow the main shareholder to completely control the fate of the company, while another shareholder may own 100% of the shares and, in fact, not depend on anyone in making management decisions. Therefore, some authors identify “degrees of corporate control” or its “threshold values”.

The legislator, in some way, independently determines these values. So, according to paragraph 4 of Art. 49 of the Law on Joint Stock Companies, decisions on issues of introducing amendments and additions to the company’s charter or approval of the company’s charter in a new edition, reorganization of the company, liquidation of the company, appointment of a liquidation commission and approval of interim and final liquidation balance sheets, etc. adopted by the general meeting of shareholders by a three-quarters majority vote of shareholders - owners of voting shares participating in the general meeting of shareholders. According to paragraph 1 of Art. 91 of the Law on Joint Stock Companies, to documents accounting and minutes of meetings of the collegial executive body have the right of access to shareholders (shareholders) having in the aggregate at least 25 percent of the voting shares of the company. Providing for review the list of persons entitled to participate in the general meeting and its copy is carried out at the request of the person (persons) included in the specified list and holding (possessing) at least 1 percent of the votes on any issue on the agenda of the general meeting, in the order established by these Regulations for the provision of information (materials) in preparation for holding a general meeting (Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by Resolution of the Federal Securities Commission of the Russian Federation dated May 31, 2002 N 17/ps).

Following the goals and objectives of the work, the author will not study in detail the degrees (threshold values) of corporate control, especially since respected researchers have paid their attention to this in sufficient detail, and it is pointless to compete with them in the depth of knowledge and penetration into the research topic.

However, we will still try to highlight the most general and widespread degrees of corporate control using the example of a joint-stock company:

— blocking control (25% + 1 up to 50% inclusive). Provides decisive importance when making decisions at the general meeting of shareholders on introducing amendments and additions to the company’s charter or approving the company’s charter in a new edition; reorganization of the company, liquidation of the company, appointment of a liquidation commission and approval of interim and final liquidation balance sheets; determining the quantity, par value, category (type) of authorized shares and the rights granted by these shares; acquisition by the company of placed shares in cases provided for by the Law on Joint Stock Companies.

— simple majority (50% + 1 up to 75% inclusive). Provides the right to make, at its own discretion, all decisions within the competence of the general meeting of shareholders, with the exception of issues provided for in paragraphs. 1-3, 5, 17 p. 1 tbsp. 48 of the Law on Joint Stock Companies.

— qualified majority (controlling stake) (75% + 1 to 100%). Gives the shareholder the right to make virtually any decisions on any issues of the corporation's activities.

— absolute corporate control (100%).

Some similarity with our proposed classification of degrees of corporate control is suggested by A.V. Gabov. Thus, the author, to determine the degree of influence of a certain block of shares on the management process of the company, uses such concepts as “controlling and blocking blocks of shares”, “minority and majority shareholders”.

It is important to note that clause 3 of Art. 53.3. of the draft first part of the Civil Code of the Russian Federation, the presence of a blocking stake is not recognized as control. According to this article, a person is considered to control a legal entity, including due to direct or indirect predominant participation in its authorized capital. In other words, as follows from the draft of the first part of the Civil Code of the Russian Federation, control over the company (based on the number of shares owned by the shareholder) begins with 50% +1 shares. The indication of the draft Civil Code of the Russian Federation, however, does not change the attitude of the author of the work to the issue under study. Moreover, we support the point of view of a number of scientists.

Recently, the theory and practice of restoring corporate control has been actively developing. According to this approach, for the purpose of going to court, the right to restore corporate control does not depend on the number of shares. A shareholder who has lost any block of shares (even 0.0...01% of the authorized capital) has the right to go to court with a demand to restore corporate control. Does this mean that every participant (shareholder) of the company has corporate control? We believe that it is not. Following the definition of corporate control as the ability of corporate participants to determine its decisions, corporate control over society, in our opinion, begins with 25% + 1 votes. It is this number of votes in the classic example of building corporate control in a company (a majority shareholder with 60-75% of shares is opposed by one or more minority shareholders) that is decisive in the company’s acceptance of certain issues of its life. We consider it necessary to draw a watershed here: corporate control depends on the number of shares, the number of which may be decisive when making a particular decision on issues of the life of the company. Undoubtedly, when considering each specific case, it is also worth taking into account the degree of “dispersion” of shares between the participants of the corporation. But, nevertheless, control directly depends on the number of shares owned by a particular person in the specific situation under consideration. Of course, this issue is debatable and requires separate research work. We, limiting ourselves to the scope of the study, move on.

Let us note that the presence of corporate control over a company, upon reaching a certain threshold value, often provokes a negative attitude of the beneficiary towards minority shareholders. Provided that a person has the opportunity to make all or most of the decisions related to the activities of the company, the absence of any restraining factors can lead to a serious violation or disregard of the rights of other participants in the corporation. In this regard, the legislator independently intervenes in the regulation of relations between shareholders in order to eliminate a possible conflict between shareholders. The protection mechanisms provided for by the current legislation include the following measures: (1) as noted earlier, the Federal Commission for the Securities Market of the Russian Federation has developed and put into circulation a Code of Corporate Conduct, which, although advisory in nature, is nevertheless a kind of guideline for proper behavior in the corporation ; (2) corporate procedures are being developed related to the convening, preparation and holding of a general meeting of shareholders of the company, (3) a special procedure is provided for the regulation and approval of transactions of the corporation in which there is an interest or major transactions.

As noted by D.I. Stepanov, the unifying criterion for all such institutions is, on the one hand, their purely formal nature, since corporate law prescribes compliance with a certain minimum of statutory guarantees of the rights of non-controlling participants of the corporation, but at the same time, as a rule, this in itself does not fundamentally change anything in the matter distribution of corporate control, however, on the other hand, such norms, setting restrictions in advance, signal to majority participants that they must take into account the fact of the presence of other participants in the corporation.

Many authors now talk about the existence of a “market for corporate control.” D. Jafarov, for example, defines it as a set of transactions to transfer control over joint-stock companies from one person to another. The market for corporate control is a market in which shares and interests in the capital of corporations are traded in large enough volumes to obtain control rights over corporations.

There are three main stages in the formation of the corporate control market in Russia.

At the first stage (mid-1990s - 1998 crisis), there were isolated attempts to use classical absorption methods. Such transactions were carried out primarily in industries where high concentration was not required financial resources. As positive features this stage One can note, firstly, a certain streamlining of the structure of share capital, and secondly, an increase in the industry-wide effect, since enterprises were forced to take restructuring measures in order not to become the target of the next takeover.

The second stage (mid-1999 to 2002) saw an intensification of merger/acquisition activity, driven primarily by the ongoing consolidation of equity capital. Due to the peculiarities of the methods used, some analysts do not even use the term “merger/acquisition”, limiting themselves to the concept of “redistribution of property”. During this period, the expansion of industrial groups was combined with an intensified process of asset consolidation.

At the third stage (from 2002 to the present), there is a slight decrease in the rate of expansion of established groups and legal reorganization. This is due, first of all, to the fact that the owner of most key assets has already been determined and financial and industrial groups began to optimize their work by creating intra-industry holdings and divesting non-core assets.

As rightly noted by D.I. Stepanov, “...along with the cost of shares calculated per unit from the entire issue, there is a certain additional markup, reflecting in value terms those opportunities that are due per one share (share) from a large block (large share) ... "

The legislator regulates the process of acquiring large blocks of shares in corporations, since this process is closely related to the concept of corporate control. The establishment of a special procedure related to the purchase of significant blocks of shares is due to the fact that new owner actually establishes (or attempts to establish) corporate control over the joint stock company.

In 1968 In the USA, a special non-governmental organization was created - the City Commission on Takeovers and Mergers. This commission adopted a set of rules called the City Code on Takeovers. Basic requirements of the City Code:

• a mandatory offer to sell shares owned by shareholders as soon as the acquirer of shares in a joint stock company exceeds a certain threshold (this threshold in European countries is usually 30-33% of shares);
• limiting the powers of company managers to oppose a takeover;
• the decisive role of shareholders in accepting the proposal.

In 2004, the EU Takeover Directive was adopted, which is based on the City Code.

Russia actively uses the provisions of this directive by establishing legal regime acquisition of large blocks of shares regulated by Chapter XI.1 of the Law on Joint Stock Companies.

Among the features of the procedure for acquiring large blocks of shares in A.E. Molotnikov highlights:

• a special procedure for acquiring shares applies to all open joint-stock companies;
• control over a joint stock company can be established using not only ordinary shares, but also other securities%
• There are two types of offers to acquire more than 30% of the shares of an open company;
• proposals to repurchase shares are sent to the joint-stock company;
• the presence of a special mechanism for paying for repurchased shares;
• special voting procedure in case of acquisition of a large block of shares;
• after receiving a voluntary or mandatory offer, the procedure for making decisions by the management bodies of an open company changes;
• the possibility of sending a competing proposal to the company;
• exceptions to the principle of mandatory submission of a buyout offer;
• a special regime for the sale of shares in the event that one person acquires more than 95 percent of the company’s shares.

Foreign researchers consider mergers, acquisitions, spin-offs, divisions and buyouts using “financial leverage” (with debt financing) as the main processes of the corporate control market.

In Russia, there are four main ways to acquire corporate control: purchasing votes, carrying out a reorganization in the form of a merger or accession, acquiring assets of a legal entity, and direct acquisition of shares. Direct acquisition of shares, or takeover, in turn, includes such methods of acquiring corporate control as the acquisition of shares from controlling shareholders, the acquisition of shares on the stock market and the acquisition of shares by sending a public offer to the joint-stock company to purchase shares.

The fundamental right of a member of a corporation is the right to participate in the management of the affairs of such a company. It is in the process of managing a corporation that its participants exercise the right to corporate control. Article 12 of the Civil Code of the Russian Federation, dedicated to the protection of civil rights, includes, inter alia, the possibility of restoring the situation that existed before the violation of the right and suppressing actions that violate the right or create a threat of its violation. Based on the analysis of judicial practice based on the application of this article, it should be noted that positive law recognizes the right to corporate control.

As noted by S.V. Sarbash, membership in an organization, among other things, provides a participant in a legal entity with the opportunity for so-called corporate control, i.e. certain rights to make management decisions, corporate acts for the management of a legal entity.

I.S. Shitkina concludes that “The majority shareholder (participant), due to the predominant participation in the authorized capital of the company, acquires the rights of corporate control, which provide him with a qualitatively different participation in the business company, expressed in the ability to determine decisions.”

Thus, when analyzing the essence of corporate control, it is worth pointing out its key role in building corporate relations within the corporation. Let us note the problem of openness of companies, widespread non-compliance with the rights and legitimate interests of minority participants in corporate legal relations. How do we see the development of corporate control, including the adoption foreign experience will have a positive impact on the relationships between the participants of the corporation, will make corporate governance more effective, and corporate control open.

CHAPTER 2. CROSS SHARE OWNERSHIP AS A SPECIFIC EXAMPLE OF CORPORATE CONTROL

§1. General characteristics of cross-shareholdings

In the current conditions of Russian reality, cross-ownership of shares is a fairly common method of corporate control. Despite the fact that disputes regarding the appropriateness of this model in Russian law have existed for quite a long time, the relevance of this issue has not been lost to this day.

According to paragraph 3 of Art. 106 of the Civil Code of the Russian Federation, the limits of mutual participation of business companies in each other’s authorized capitals and the number of votes that one of such companies can use at a general meeting of participants or shareholders of another company are determined by law. Despite the fact that part one of the Civil Code of the Russian Federation was adopted more than 17 years ago, to date there is no law that would regulate the mutual participation of one company in another. Consequently, there is also no legislative prohibition on the participation of one corporation in the authorized capital of another. We find some regulation very vaguely in clause 1.5. Temporary regulations on holding companies created during transformation state enterprises to joint stock companies. However, the effect of this Temporary Regulation is very, very restrictive and is not applicable to the relations of 99.9...9% of holding companies. In addition, given the fact that the decrees of the President of the Russian Federation regulating civil legal relations should not contradict the Civil Code of the Russian Federation and other laws (clause 3 of Article 3 of the Civil Code of the Russian Federation), it allows one to question the overall legality of the restrictions introduced by the Temporary Regulations, since they may introduced only by federal law (clause 3 of article 106 of the Civil Code of the Russian Federation).

Thus, at present there are no legal prohibitions on cross-ownership of shares by several companies in each other.

In turn, in Western countries and some Asian countries this issue is clearly regulated at the legislative level. Thus, in Germany, special provisions regarding cross-shareholding are contained in the Securities Transactions Act of September 6, 1965. Subsidiaries in the German sense of the word have the right to own shares of the main company only if this is permitted by the company itself. Such shares do not provide for the exercise of shareholder rights. The total number of shares owned by the daughters of the company in these circumstances should not exceed 10% of the authorized capital. The English Companies Act 2006 provides that a subsidiary controlled by a holding company cannot be a member of the latter. Any allotment or transfer of shares in a company to its subsidiary is void. An exception is made for cases where the subsidiary is: 1) a legal successor (personal representative) of the holding company, 2) a trustee of shares; 3) an intermediary in the securities market due to its ordinary course of activity (in the ordinary course of its business as an intermediary). If a subsidiary has acquired shares in violation of this prohibition, it may nevertheless remain a member of the holding company, but the shares held by the subsidiary will be deprived of voting rights at the general meeting of members of the holding company. In France, a joint stock company cannot own shares of another company if the latter owns more than 10 percent of the authorized capital of the first company.

During the study, the author identified a mainly negative attitude of representatives of domestic science towards the phenomenon under study. For example, a number of commentators of the Civil Code of the Russian Federation indicate that the possibility of such cross-ownership poses a threat to the protection of the interests of creditors of such companies and requires legislative restrictions, taking into account the positive experience of relevant regulation in foreign legislation. I.S. Shitkina notes that with cross-ownership of shares, corporate control over the main company is redistributed in favor of managing managers without involving their own funds, as well as third-party investment capital. The result of this may be a one-sided approach to the distribution of income in favor of management to the detriment of the interests of shareholders (participants), consisting, for example, in the payment of inflated remunerations. Considering the known “dispersion” of share capital in large open joint-stock companies, the acquisition of even a relatively small number of voting shares can allow management to really influence the formation of the will of the general meeting of shareholders, and ultimately ensure the irremovability of management.

YES. Arkhipov, in his work, says that cross-ownership of shares gives management the opportunity to influence decisions made by the general meeting of shareholders. This possibility distorts the will of shareholders and also reduces the level of control of management, up to its irremovability.

As research experience shows, investors in the Russian stock market are not ready to follow “the Wall Street rule,” the meaning of which boils down to an alternative: supporting management or selling shares.

Let's try to highlight common features(both negative and positive) cross-shareholdings. In our opinion, the most complete and succinct list of negative features of cross-ownership is described by D.A. Arkhipov in his work. Among these features, the author identifies:

• reducing the level of accountability of management to shareholders;
• the incentives guiding the actions of management are distorted (they can make more risky decisions, abandon long-term projects in favor of short-term ones related to personal enrichment;
• management, without investing its own funds, acquires corporate control at the expense of the main company, i.e. in fact at the expense of its shareholders;
• there is a separation of the right of corporate control from cash flow in the form of dividends (traditionally, the right of corporate control belongs to those who receive dividends as a shareholder).

Indicative in this regard is the content explanatory note to the project Federal Law N 368754-5 “On amendments to the Federal Law “On Joint Stock Companies”. This document notes that cross-shareholding can give rise to serious conflicts of interest and opportunities for abuse in joint-stock companies, namely:

• the accountability and transparency of the activities of executive bodies in relation to all shareholders is significantly reduced;
• misuse is carried out Money and other resources of the parent company for purchasing shares of the company;
• voting on the block of shares purchased by controlled companies at shareholder meetings is carried out in the interests of the management of the parent company, and the benefit of certain decisions for the remaining shareholders is not obvious;
• “irremovability” of the executive bodies of the parent company is achieved.

However, some researchers still highlight the positive features of cross-shareholding. As the authors note, this scheme achieves two important goals:

• the controlled subsidiary consolidates a significant stake in the parent company, which, together with the shares of the business owner, forms the desired controlling stake;
• The parent company, represented by the executive body, can make the “necessary” decisions at general meetings of shareholders (participants) of the subsidiary company on all key issues, and the subsidiary company, represented by the controlled general director, ensures that the same decisions are made at general meetings of the parent company.

§2. Ways to resolve the problem of cross-shareholding

2.1. At the legislative level

The unanimous negative opinion of specialists in the field of corporate law, of course, did not pass without a trace. Bill No. 368754-5 was introduced into the State Duma of the Russian Federation, which proposed introducing restrictions on the use of the cross-ownership scheme.

On the basis of this bill, it was proposed, among other things, to supplement Chapter IX with Article 77 1, according to which, in the event that shares of an open joint-stock company owned by a consolidated legal entity of such an open joint-stock company do not provide voting rights at meetings of shareholders of such a joint-stock company, they are not taken into account When votes are counted, no dividends are accrued on these shares. A consolidated legal entity of an open joint-stock company does not have the right to acquire financial instruments (other than shares) certifying rights in relation to shares of such an open joint-stock company, including those issued in accordance with the laws of foreign states.” In other words, the initiative group proposed an option related not to a general ban on cross-ownership of shares, but to the introduction of restrictions on voting and receiving dividends.

However, the above bill was not approved by the Government of the Russian Federation and on November 22, 2010 it was removed from consideration by the State Duma of the Russian Federation. It is clear that if there is an active use of cross-ownership of shares in city-forming enterprises, including those with state participation (AvtoVAZ OJSC, NK Surgutneftegaz OJSC, Lukoil OJSC), the current situation will somehow shift from dead center it will be extremely difficult.

In turn, the authors of the Concept for the Development of Legislation on Legal Entities (draft) proposed the following: “it is advisable to limit the possibility of mutual participation of business companies in each other’s authorized capitals (cross-ownership). The absence of such restrictions allows the managers of the main company, through a subsidiary company - a shareholder of the main company - to vote at general meetings of shareholders of the main company. The best way the fight against these abuses is a mandatory prohibition in the Civil Code of the Russian Federation on cross-ownership of shares (stakes). As a consequence of violating such a prohibition, it is not necessary to provide for the invalidity of transactions of the parent company to acquire shares (stakes) of a subsidiary; it can be established that shares (shares) acquired for any reason, but in violation of this prohibition, do not provide their owners with any rights (they do not vote, do not participate in determining the quorum of the general meeting of shareholders, dividends are not accrued on them, etc.) " This proposal was reflected in the draft of the first part of the Civil Code of the Russian Federation; the creators proposed a “softer” option for solving the problem.

However, nevertheless, the undergraduate is faced with a question regarding the development model of cross-ownership of shares, since the developers of the Concept proposed to establish an imperative ban on cross-ownership of shares, and at the same time, the possibility of introducing restrictions on the mutual participation of business companies in the authorized capitals of each other is not excluded. friend.

In foreign corporate governance practice, special regulation of cross-shareholding is applied. Thus, in continental law there are restrictions on the acquisition of shares by an open joint-stock company of its “subsidiaries” companies. These restrictions were introduced by Directive 92/101/EC of 23.11.1992 “On the establishment of public limited liability companies, the maintenance and modification of their capital”, supplementing the second EU Directive 77/91/EEC of 13.12.1976 “On the harmonization of rules governing education JSC, maintenance and change of fixed capital".

I.S. Shitkina proposes in this situation the introduction of restrictions, since the proposed mandatory prohibition can be easily circumvented by alienating shares (stakes) from a subsidiary to a formally unaffiliated person, and taking into account the simplicity of this operation, it is permissible to assume that the establishment of a corresponding ban or restriction on cross-ownership of shares will be possible easy to ignore. As a consequence of violating this prohibition, the authors propose to establish that shares (shares) acquired in violation of it do not provide their owners with any rights (they do not vote, do not participate in determining the quorum of the general meeting of shareholders, dividends are not accrued on them, etc. ).

I.S. Shitkin will highlight three possible directions for reforming Russian civil legislation:

1) introducing a general ban on cross-ownership of shares (stakes) and establishing sanctions for its violation (deprivation of voting rights, invalidity of transactions for the acquisition of shares (stakes), etc.);

2) restriction of voting rights on shares (stakes) that are cross-owned, while maintaining the possibility of acquiring shares (stakes) of the main company by its subsidiaries without limiting the number of shares (size of shares);

3) allowing cross-ownership within certain limits, depending on the organizational and legal form of the business company, with a mandatory limitation of voting rights on shares (stakes) and the establishment of sanctions for violating the permissible limits of participation.

The author of this dissertation research believes that it is most appropriate to Russian conditions using the third option. The introduction of a complete ban on cross-ownership of shares (interests) will certainly contradict the approach existing in most European countries, including Germany, whose legal framework is so close to the domestic legal order. We do not observe a positive phenomenon in these circumstances. In addition, a ban on one business company owning shares of another business company risks being tested by the Constitutional Court of the Russian Federation as “coercion to alienate property.”

The author of the work absolutely agrees with researchers who argue that the basis for legal regulation should be the assumption that the acquisition of shares (shares) of the main company by its subsidiary is their acquisition in the interests of the main one. If we analyze the current legislation, we can find that the law establishes restrictions only for a joint stock company on the possibility of acquiring its own shares. So according to para. 2 p. 2 art. 72 of the Law on Joint Stock Companies, the company does not have the right to make a decision on the acquisition of shares by the company if the par value of the company's shares in circulation is less than 90 percent of the company's authorized capital. This means that the general meeting of shareholders or the board of directors (supervisory board) of the company has the right to make a decision on the acquisition by the company of no more than 10% of the shares in circulation, and if at the time of making such a decision some of the shares are no longer in circulation, then size limit the share of acquired shares decreases accordingly. No such prohibition has been identified for limited liability companies.

In this regard, we believe that restrictions on the number of shares that a subsidiary can own should be left at 10%. Let us express the opinion that it is worth legislating the prohibition of a subsidiary owning exactly 10 or more percent of the shares of the main business company. Analysis of the Law on Joint Stock Companies allows us to identify some rights belonging to shareholders owning exactly 10% of shares, the possession of which will be unnecessary for subsidiaries. So Art. 55 of the Law on Joint Stock Companies establishes the right of shareholders (shareholders) who own 10 percent of the company's voting shares to demand the convening of an extraordinary general meeting of shareholders. Art. 85 of the Law on Joint Stock Companies establishes the right of shareholders (shareholders) who own 10 percent of the voting shares of the company to initiate an audit (audit) of the financial economic activity society. We believe that in order to avoid dishonest behavior by the company’s management and other abuses on its part, it would be unnecessary to vest subsidiaries that are completely dependent on the management of the main company with such rights.

As for limited liability companies, we allow ourselves to propose - contrary to the opinion of some researchers - a threshold of 50% (again, not including this figure). In other words, in the case of cross-ownership, the share of the subsidiary in the authorized capital of the parent company must be less than 50%. This conclusion follows from the analysis of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”. Thus, in order to make any decisions of society, the key value is the majority of votes. A share of 25% of the authorized capital actually has no meaning. All decisions are made by a majority - simple or qualified. In this regard, the 50 percent threshold is most appropriate. As for exactly 50%, we believe that the ownership of this package of shares of the main company by a subsidiary is unacceptable, in order to prevent the occurrence of stalemate situations, the so-called deadlock.

Returning to the relevance of the issue, let us dwell on a particular example of a problem that arose from the existence of cross-ownership of shares in a society. Information about this conflict is actively covered by the press and is available on some Internet sites. Historically, one issuer in St. Petersburg indirectly owned its own shares through several of its wholly-owned subsidiaries. At a certain period of time, the main company, as the only participant in the subsidiaries, decided to carry out a number of transactions related to the sale of shares of this issuer to third parties. The sold block of shares of the main company, which was owned by subsidiaries, amounted to more than 35%. Some shareholders of the main company considered that these transactions were completed with a significant reduction in price, i.e. the shares of the main company were actually sold by the same company at a reduced price. The problem was complicated by the fact that, according to the shareholders, all shares of the main company became the property of persons affiliated in one way or another with the company's management. As a result, the courts of the Northwestern District were overwhelmed by a wave of lawsuits. Shareholders who did not agree with this state of affairs challenged all transactions related to the sale of shares of the main company. It is worth noting that not all transactions involved shares in the underlying company. The subject of some transactions were shares (shares) of the so-called. “grandchildren” companies of the main company, whose only asset, allegedly, were shares of the main company. Ultimately, the shareholders' claims were denied. The Supreme Arbitration Court of the Russian Federation motivated its refusal to transfer to the Presidium of the Supreme Arbitration Court of the Russian Federation applications for review of cases in the supervisory order as follows:

« In accordance with paragraph 6 of Article 78 and paragraph 1 of Article 84 of the Law on Joint Stock Companies, a transaction made in violation of the requirements for approval as a large one or with an interest may be declared invalid at the request of the company or its shareholder. The applicants are neither parties nor shareholders (participants) of the companies acting as parties to twelve of the fourteen disputed agreements. The applicant’s argument about the actual existence of the holding does not affect the resolution of the issue of the applicants’ right to challenge transactions on the above grounds.”

“The court also rightfully indicated an independent basis for refusing to satisfy the claims for invalidation of all disputed agreements ... since the plaintiffs were neither participants in the companies that were parties to the disputed transactions, nor parties to these transactions.”

In other words, since the shareholders of the main company were not parties to the transactions, and also did not prove their interest in challenging such transactions in court, the courts rejected the claims.

Without assessing these circumstances, we will only note that if there were restrictions on the ownership of shares of the main company by subsidiaries, the conflict, which has been going on for four years, simply would not have arisen. It is worth noting that the very situation of the existence of cross-ownership, not in relation to the case under consideration, actively provokes the company’s management to abuse.

2.2. At the level of law enforcement practice

As an analysis of judicial practice has shown, in the absence of proper legal regulation of cross-ownership of shares, a number of shareholders are trying to independently solve this problem by applying the rules of law by analogy with the law.

An illustrative example in this case is the practice of the courts of the West Siberian District. The plaintiff in the case made somewhat revolutionary statements to invalidate the decision of the annual general meeting of shareholders of the company on one issue on the agenda, due to the fact that, in his opinion, the issuer's subsidiaries, which owned a certain number of its shares, took part in the meeting . The basis of the claim is the norm enshrined in paragraph 3 of Art. 72 of the Law on Joint Stock Companies, which, according to the plaintiff, should have been applied by analogy with the law. According to paragraph 3 of Art. 72 of the Law on Joint Stock Companies, shares acquired by the company in accordance with paragraph 2 of this article do not provide voting rights, they are not taken into account when counting votes. Courts of all instances, including the supervisory level, did not support this position, since they did not see a gap in the law.

The Presidium of the Supreme Arbitration Court of the Russian Federation expressed its position regarding the application of analogy of law, including norms that have a legal restrictive nature. According to this position, the analogy of the law must be applied in order to equally protect the interests of investors from the actions of governing bodies pursuing their private interests to the detriment of the interests of society. YES. Arkhipov believes that exactly the same problems arise when voting on the so-called. "quasi-treasury" shares. In the example under consideration, the situation is obviously similar to the relations regulated by clause 3 of Art. 72 of the Law on Joint Stock Companies. The main purpose of this article is to limit the rights to shares owned by the company to prevent abuse by the company's management. However, an absolutely similar situation arises when the shares of the main company are owned by a 100% subsidiary - the shares of the main company actually belong to it itself. The analogy of the law may limit the rights guaranteed by the constitution, in particular the right to own shares and the right to vote on them.

In this regard, the author of the work proposes to adopt the above theory, which, unfortunately, has been negatively tested in practice, in order to limit the rights belonging to the shares of the main company owned by the subsidiary. Of course, resolving this issue in law enforcement practice, without its proper regulation in substantive law, should have a positive impact on resolving problems that arise mainly among minority shareholders when exercising their corporate rights.

Recently, as noted by V.V. Dolinskaya, in insider systems, to which the author includes Russia, there are signs of a change in the role of dominant shareholders. Companies are gradually beginning to overcome the obstacles to attracting outside investment associated with cross-shareholdings. In France, for example, only for 1993 - 2002. the number of holding structures in the total capitalization decreased from 59 to 20%, the share of dominant shareholders over the past 10 years has decreased by almost 1/3. Similar processes are occurring in Japan: the share of companies with cross-shareholdings in the country’s total capitalization decreased from 1993 to 2002. from 55.8 to 45.7%. Taking into account some similarities in the systems, the author of this work positively views the trends in the Russian legal order associated with the departure from the archaic method of holding shares mediated by cross-ownership. So, recently, more and more Russian companies have set their sights on making a profit, introducing investments and attracting capital, including foreign capital, as a result of which they are making corporate control more transparent, accessible and democratic. An illustrative example is the company UC RUSAL, which placed its shares on the Hong Kong stock exchange. At the end of January 2010, Russian Aluminum held an IPO on the Hong Kong Stock Exchange, thus becoming a public company. During the placement of shares, the company sold 10.6% of shares, earning $2.24 billion for them (accordingly, the entire company was valued at $21 billion). The largest investors in the IPO were Vnesheconombank and the Libyan state fund Libyan Investment Authority, which bought 3.15% and 1.43% of the shares, respectively.

As a result of the IPO, the shares of the previous main shareholders of the company changed - each of them allocated part of their stake for sale to investors in proportion to their share. The share of En+, controlled by Deripaska, decreased from 53.35% to 47.59%, the share of ONEXIM Group, owned by Mikhail Prokhorov, fell from 19.16% to 17.09%, the share of SUAL Partners of Viktor Vekselberg and partners - from 17 .78% to 15.86%, Glencore International - from 9.7% to 8.65%.

Thus, there are positive trends in the development of the foundations, principles and procedures for building corporate governance in joint-stock companies. In the course of widespread globalization, Russian businessmen understand the importance of company openness and the introduction of advanced models of corporate governance and control. The author of the work hopes that in the near future such “archaism” as immense cross-ownership of shares will remain in history, and the principles of openness, stability and security of corporate control will come to the fore in corporate control, and in general in company management.

CHAPTER 3. INSTITUTION OF INDEPENDENT DIRECTORS AS A WAY TO AVOID CONFLICT IN THE CORPORATE GOVERNANCE PROCESS

§1. History of the development of the Institute of Independent Directors

Currently, the situation related to corporate governance in Russia remains one of key aspects building civilized and effective conditions for the normal functioning of business.

The effectiveness of corporate governance in a company depends not only on the successful activities of the joint-stock company as commercial organization. A very important role is played by the construction of an internal hierarchy in a corporation and proper interaction between its bodies. The Board of Directors, of course, plays a decisive role in the management of the company. Its work is a key factor in the investment attractiveness of a society, which is a necessary condition for ensuring the growth of its economic indicators.

That is why in modern conditions the most important issue What needs to be addressed is the active introduction of the institution of independent directors into the legal (as well as economic) environment. The relevance of the issue is beyond doubt: D.A. Medvedev, at his meeting with independent directors and professional government representatives on the boards of directors and supervisory boards of companies with state participation, raised this problem. Thus, the President noted that “the effectiveness of corporate governance depends on how boards of directors, supervisory boards work, and how key decisions are made.” It is from independent directors, according to the President, that investment activity and the attractiveness of the Russian economy will depend.

Of course, at present in our country interest in the institution of independent directors is continuously growing. Various associations and institutions of independent directors are being created. Conferences and round tables are held. This is an important point, since, as world practice shows, investors are paying increasing attention to the “quality” of company management and are ready to invest more willingly in such joint-stock companies, where the level of information disclosure, relations with shareholders, transparency and, of course, efficiency and effectiveness board of directors meets best global practice.

However, before discussing the benefits, positive qualities and aspects of the activities of independent directors, it is necessary to understand the concepts historical background, as well as analyze foreign experience.

The institution of an independent director first appeared in the 80s and 90s in the UK and the USA after a number of scandalous bankruptcies of famous corporations, for example, newspaper magnate Robert Maxwell. The cause of the financial misfortunes was management mismanagement and corruption of board members. Large investors - mutual funds, investment funds, trust and other funds and companies that attracted money from the public - proposed introducing independent directors into the main supervisory body of companies. The range of their functions was outlined as constant third-party monitoring of decisions of the board of directors and their execution and compliance with the interests of all groups of shareholders. In the United States, after the start of the latest wave of financial scandals, at least half of the members of boards of directors must be independent - this has become mandatory requirement. A company that did not comply with this standard could simply not be allowed to participate in operations on the stock exchange.

In 2004, the Organization for Economic Co-operation and Development published a revised Principles of Corporate Governance which, among other things, stated that “boards of directors should consider including a sufficient number of non-executive directors who are able to provide independent judgment on matters presenting potential conflicts of interest.

Unfortunately, the laws of many countries do not have the concept of independent directors. Thus, the Cadbury Code calls an independent member of the Board of Directors who is independent of management and free from any business or other relationships that could significantly affect their expression of an independent opinion. And according to the definition of the Brazilian Institute, a director is independent if he has no other relationship with the company other than membership in the board of directors and ownership of its shares, and does not receive any other material incentives other than remuneration for a member of the board of directors or dividends on shares ; has never been an employee of the company (or its affiliated structure); is not a supplier of products or services to the company (or an employee of a company that provides products or services to the company); is not an immediate family member of an officer, manager or controlling shareholder of the company.

Let us agree with the definition of “independent director” given in research work Dmitrieva O.E. So, according to the author, an independent director should be considered an individual who is a member of the Board of Directors (supervisory board) of a company who does not have financial or any personal connections with the joint-stock company, including its shareholders, authorized persons of other bodies management of the company, as well as other signs of affiliation. It is important to understand that, indeed, an independent director is independent not only from other members of the Board of Directors, but also from the shareholders who nominated him. From the moment the said person is elected, he must act in the interests of the entire society. This is due to the existence of a mechanism for the liability of a member of the board of directors for actions that caused harm (losses) to the company. So, according to paragraph 2 of Art. 71 of the Law on Joint Stock Companies, members of the board of directors (supervisory board) of the company are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds for liability are established by federal laws. We believe that the provisions of this article should also apply to the actions of “independent” members of the Board of Directors.

If we dwell on the development of the institution of independent directors in Russia, it should be noted that the legislator, as well as scientific thought, until recently, ignored the possibility of the existence of such an institution, not describing it at all or touching upon it in passing.

Only in 2001, when the Federal Law of August 7, 2001 No. 120-FZ amended the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies,” in particular, in Art. 83 of the Law on Joint Stock Companies, the concept of an independent director was included in relation to the procedure for making decisions on the approval of transactions in which there is an interest: “An independent director is recognized as a member of the board of directors (supervisory board) of the company who is not and has not been within one year preceding making a decision:

a person performing the functions of the sole executive body of a company, including its manager, a member of a collegial executive body, a person holding positions in management bodies management organization;

a person whose spouse, parents, children, full and half brothers and sisters, whose adoptive parents and adopted children are persons holding positions in the specified management bodies of the company, the managing organization of the company or who are the manager of the company;

an affiliate of the company, with the exception of a member of the board of directors (supervisory board) of the company.”

However, we agree with the researchers that the definition of an independent director introduced by the legislator was only of a private nature.

It is with the adoption of the Code of Corporate Conduct by the Federal Commission for the Securities Market that the author of the work associates the active development of the institution of independent directors. As stated in clause 2.2. Code of Corporate Conduct, “it is recommended to include independent directors in the board of directors.” The most important positive result of the adoption of this document was the fact that it introduced the concept of an independent director who would make a significant contribution to decision-making on such issues as the development of a company development strategy, assessment compliance of the activities of executive bodies with the chosen strategy, resolution of corporate conflicts with the participation of shareholders; established criteria for the independence of directors with a view to allowing such directors to exercise independent judgment; provided recommendations on the number of independent directors on the company's board of directors, and also introduced a warning for an independent director against taking actions that could result in him ceasing to be independent.

Thus, for the first time in the history of Russian legislation, an attempt was made to introduce the institution of independent directors and establish criteria for their appointment, functioning and remuneration.

The next stage in the development of the institution of independent directors in Russia was the approval of listing rules on Russian stock exchanges, when for category “A” securities of the 1st and 2nd levels the obligation was established to include at least 3 independent directors on the board of directors. For category “B” securities – at least 1 independent director. A list of committees was also established that should be headed directly by independent directors.

In the Strategy for the development of the financial market of the Russian Federation for the period until 2020, approved. By order of the Government of the Russian Federation dated December 29, 2008 No. 2043-r, the following is noted:

“A separate task is to increase the role of independent directors in public companies. Independent directors contribute to one of the core principles of corporate governance developed by the Organization for Economic Co-operation and Development, which requires that the board of directors be able to exercise objective, independent judgment on corporate matters. The making of such decisions is, first of all, facilitated by the participation of independent directors in the work of the board of directors, who are the bearers of an objective view on the assessment of the work of the company and its management. In addition, independent directors play an important role where the interests of a company's management and its shareholders diverge, such as on issues of executive compensation, changes in corporate control, hostile takeover defense, major acquisitions and auditing. To ensure the election of independent directors to the board of directors of companies, it is necessary to provide at the legal level for the procedure for their election.

§2. Introduction of requirements for the number of independent directors, introduction qualification requirements

As already noted in this work, in the USA it has become a mandatory requirement to have at least half independent members Board of directors. The Russian version of the Code of Corporate Conduct (Governance) provides (clause 2.2.3.) that independent directors must constitute at least one quarter of the composition of the company’s board of directors. In any case, it is recommended that the company's charter provide for at least 3 independent directors on the board of directors. This is necessary so that independent directors can really influence decisions made by the board of directors, and they would be provided with the opportunity to form wide range opinions on the issues discussed.

Taking into account the historical stages of the formation of Russian joint-stock companies, the peculiarities of management in such companies, the dissertation author believes that the “alignment of forces” in the board of directors of a company should be somewhat different than what the Code proposes. Historically, the following model of share ownership has developed in Russian companies: in the company there is a clearly defined majority shareholder, on whom almost all decisions of the corporation’s activities depend; he is opposed (directly or indirectly) by minority shareholders who own an insignificant block of shares (up to 25%). In these circumstances, we believe that independent members of the board of directors should make up one third of all members of the company’s board of directors. If there is a dispute regarding the adoption of a particular decision at a meeting of the board of directors, independent directors will have a casting vote. In this regard, the rights and legitimate interests of the corporation’s participants, as well as the corporation itself, will be respected. Independent members of the Board of Directors, being disinterested in accepting this or that management decision, will take the side of any group of members of the board of directors, thus obtaining a majority. Therefore, in this case, argumentation, rationality, economic expediency decisions made, and not simply fulfilling the wishes of the majority participant.

It is also important to note that a number of researchers have identified a problem that arises in situations where the work of an independent director is paid by the shareholder who nominated him. In this case, the independent director informs such shareholder about the state of affairs in the joint-stock company, possible violations of his rights and interests, as well as the steps that can be taken (retention, purchase of shares, their sale). We absolutely agree with the researchers that such a situation is unacceptable. The most correct solution would be for the joint stock company to pay remuneration to the members of the board of directors. This will give the activities of independent directors on the board of directors a character of autonomy and independence. The order of payments, the size, the dependence of the amount of remuneration on performance results does not matter. The main thing is that the company itself should “thank” independent directors for their work, in whose interests these persons should act.

It is worth dwelling on the qualification requirements for “independent” candidates for members of the board of directors of a corporation. We believe the introduction of such requirements is justified and consider it necessary to consolidate them at the legislative level, as an option, by adopting a regulatory legal act within the competence of the body exercising control and supervision of the securities market. It is worth noting that in the context of this work we mean establishing requirements specifically for “independent” members of the board of directors, since at present it is prohibited at the level of arbitration court practice to establish any obstacles to the election of specific shareholder representatives to the board of directors. Thus, in some cases, in which the author of this work took part, the courts prohibited the introduction of requirements for candidates for members of the board of directors of a joint-stock company. Thus, by Resolution of the Federal Antimonopoly Service of the Moscow District dated September 10, 2008 N KG-A40/7609-08 in case No. A40-5246/08-83-56, the decision of the extraordinary general meeting of shareholders of Ingosstrakh Insurance Company dated January 18, 2008 on approval of the Regulations was declared invalid on the Board of Directors in a new edition in part of clause 25.3 of the Regulations, establishing the following requirements for candidates for members of the Board of Directors:

— candidates must have a higher economic or financial education, confirmed by a document on higher economic or financial education, recognized in the Russian Federation, as well as work experience (participation in management bodies) in the field of insurance and (or) finance for at least three years;

— candidates must be citizens of the Russian Federation and permanently reside on the territory of the Russian Federation;

— candidates must not have an unexpunged or outstanding criminal record.

A similar prohibition is contained in Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 27, 2010 No. 67/10 in case No. A40-13353/09-158-149.

Thus, supporting the position arbitration courts, we agree that the introduction of additional requirements for “ordinary” candidates for the company’s management bodies, put forward by shareholders, is unacceptable. The author advocates introducing requirements specifically for “independent” candidates.

As for specific requirements for “independent” candidates for members of the board of directors, we believe it is possible to introduce them. In addition, the Code of Corporate Conduct, which, unfortunately, is only advisory in nature, within the framework of clause 2.2.2. already introduces certain restrictions. By analogy, it is proposed to adopt domestic and foreign experience gained in relation to independent directors in companies with state participation.

Decree of the Government of the Russian Federation dated December 31, 2010 No. 1214 Regulations on the management of federally owned shares of open joint-stock companies and the use of the special right for participation of the Russian Federation in the management of open joint-stock companies (“golden shares”), approved. by Decree of the Government of the Russian Federation dated December 3, 2004 No. 738, was supplemented by clause 8(1), containing requirements for persons nominated by the Russian Federation as a shareholder for election to the board of directors as independent directors:

"Federal Ministry, Federal Authority and federal agency When formulating proposals to nominate candidates for election to the board of directors of a joint stock company as independent directors (hereinafter referred to as independent directors), they are guided by the fact that the person nominated by the Russian Federation as a shareholder for election to the board of directors as an independent director, or members of his family (spouse) , parents, children, adoptive parents, adopted children), full and half-siblings, grandparents, continuously during the last 3 years must not:

hold positions in management bodies, be employees of a joint-stock company or its subsidiaries and affiliates, as well as hold positions in management bodies, be employees of the management organization of a joint-stock company or be a manager;

be affiliated persons of the joint-stock company or its subsidiaries and affiliates, with the exception of performing the duties of a member of the board of directors (supervisory board) of the joint-stock company;

perform the functions of an auditor of a joint-stock company (including as an employee of an audit organization), as well as be affiliated persons of the auditor of a joint-stock company;

fulfill obligations or be employees of an organization fulfilling obligations under an agreement with a joint-stock company, if the total volume of transactions for the purpose of implementing the agreement during the year is 10 percent or more of the book value of the assets of the joint-stock company;

represent the interests of persons or organizations bound by obligations under an agreement with a joint-stock company, with which the total volume of transactions during the year amounts to 10 percent or more of the book value of the assets of the joint-stock company;

receive remuneration from the joint stock company, compensation payments or payments of another nature, the amount of which is 10 percent or more of the total annual income of these persons, with the exception of payments related to acting as an independent director and concluding transactions to secure personal, household, family or other entrepreneurial activity, needs, and also participate in the company’s option programs.

In addition, a person nominated by the Russian Federation as a shareholder for election to the board of directors as an independent director must not:

fill government positions civil service Russian Federation or be an employee of the Central Bank of the Russian Federation;

be continuously for the last 5 years a member of the board of directors (supervisory board) of the company to which he is elected;

hold positions in the management bodies or be an employee of another joint stock company in which any of the persons holding positions in the management bodies of the company to which the person is nominated as an independent director is a member of the committee of the board of directors for personnel and remuneration of the company;

be simultaneously an independent director in more than 3 joint stock companies.”

The list of instructions of the President of the Russian Federation dated April 2, 2011 on the implementation of priority measures aimed at improving the conditions of the investment climate in Russia contained the following instructions to the Government of the Russian Federation:

— initiate the adoption at shareholder meetings of decisions on the exclusion from the boards of directors (supervisory boards) of joint stock companies with state participation (according to the list according to the appendix) of the Deputy Prime Ministers of the Russian Federation and federal ministers coordinating government regulation in relevant areas of activity, and the inclusion instead of independent directors or proxy directors (deadline – 07/01/2011);

— initiate the adoption at shareholder meetings of decisions on the exclusion from the boards of directors (supervisory boards) of joint stock companies with state participation (not included in the above list) of Deputy Prime Ministers of the Russian Federation, federal ministers, heads of other federal executive bodies and persons included in the Administration the President of the Russian Federation, and the inclusion instead of independent directors or attorney directors (term – 10/01/2011);

— ensure the election of persons who are not government employees as chairmen of the boards of directors (supervisory boards) of joint-stock companies with state participation (term – 10/01/2011).

The list of instructions of the President of the Russian Federation dated 04.08.2011 contains instructions to the Government of the Russian Federation, before 01.10.2011, to submit proposals aimed at improving the selection and level vocational training candidates for the positions of independent directors and professional attorneys - government representatives in the management bodies of companies with state participation. The message on the implementation of this order of the President of the Russian Federation, posted on February 11, 2012 on the official website of the President of the Russian Federation, states: “Work on improving the selection and level of professional training of candidates for the positions of independent directors and professional attorneys - representatives of the state in the management bodies of companies with state participation is proposed be entrusted to the personnel and remuneration committees of the boards of directors, which will prepare proposals for candidates for nomination, based, among other things, on an assessment of the performance of members of the boards of directors.”

In current regulations In our opinion, it contains a very meager list of requirements for candidates for the position of independent director. They are contained in the following documents:

• Order of the Federal Property Management Agency of January 12, 2009 No. 1 “On the organization of activities to represent the interests of the Russian Federation in the management bodies of open joint-stock companies, the shares of which are owned by the Russian Federation”, a Commission was formed to select independent directors, representatives of the interests of the Russian Federation and auditors for election to management bodies and control of joint-stock companies not included in the special list approved by Order of the Government of the Russian Federation dated January 23, 2003 N 91-r, and the Regulations on this Commission were approved.

In accordance with paragraphs. 4.2, 4.3 Provisions Commission:

— considers candidates for election to the management and control bodies of joint-stock companies; The selection of candidates for election to the company’s management bodies as independent directors is carried out taking into account general requirements to an independent director, as defined by the Corporate Governance Code, recommended for application by Order of the Federal Securities Commission of Russia dated April 4, 2002 No. 421/r;

— evaluates the work experience of candidates for independent directors in relevant industries (fields of activity), the level of professional training and qualifications of candidates, reviews documents confirming their professional training and qualifications, including documents state standard on professional retraining in the relevant specialization or educational documents recognized as equivalent (if the candidate has already represented the interests of the state under the contract in the management bodies of joint-stock companies, his activities as a representative of the state are also assessed).

• Resolution of the Moscow Government dated July 27, 2010 No. 646-PP “On the directions of the corporate policy of the city of Moscow as a shareholder in the current economic conditions” approved the Regulations on Certification Commission, which carries out the functions of certification, selection and assessment of the performance of persons who are not government employees and are involved in the management and control bodies of joint-stock companies, as well as independent directors.

In accordance with clause 12.7.2 of the said Regulations, when identifying candidates for the management and control bodies of a joint-stock company who are certified directors, preference is given to candidates who have a higher assessment of suitability for the position, determined in accordance with the Regulations on the criteria for selecting certified directors for recruitment to the bodies management and control of joint-stock companies, the shares of which are owned by the city of Moscow, approved by Decree of the Moscow Government dated 05.08.2008 No. 697-PP. The Regulations use, in particular, the following criteria, according to which a certified director is assigned a certain number of points:

• experience working in management and control bodies of joint-stock companies;
• education, scientific degree;
• undergoing professional training (training/specialized courses);
• experience in the field of economic activity of a joint-stock company.

The experience of our closest neighbors is interesting in this regard. Decree of the Government of the Republic of Kazakhstan dated December 26, 2006 No. 1286 “On some issues of independent directors of joint-stock companies, the controlling stakes of which belong to the state” approved:

— Qualification requirements for candidates for the position of independent directors of joint-stock companies, the controlling stakes of which belong to the state;

— Rules for the selection of independent directors of joint-stock companies, the controlling stakes of which belong to the state.

In our opinion, a reasonable proposal would be to introduce corresponding documents in the Russian Federation. It seems that the approval of the relevant Resolutions regarding independent directors in companies with state participation would have a positive impact on the activities of these companies, and would also serve as additional guarantees to potential investors. If the result is positive, the effects of these acts could be extended to all independent directors, regardless of participation in the authorized capital of the state capital company.

§3. Professional communities of independent directors

The role of independent directors should be strengthened not only in public companies, but also in large professional participants in the securities market, especially in infrastructure organizations (exchanges and settlement depositories). Simultaneously with strengthening the role and importance of independent members of boards of directors, it is necessary to consider the issue of their unification into self-regulatory organizations, the main tasks of which will be the development of standards and rules of conduct for independent directors, as well as control over their professional activities.”

Thus, under the Russian Union of Entrepreneurs and Industrialists of the Russian Federation, there is a National Register of Independent Directors. It is intended to unite into a single community of persons carrying out professional activities as independent directors, as well as to determine qualification requirements, performance standards and Rules business ethics independent director.

Maintaining the National Register will provide an opportunity for Russian and foreign organizations, as well as government agencies reduce the risks associated with the selection of independent directors to represent shareholders in the company’s management bodies.

The composition of the National Register is formed from among professionals who have a high business reputation and experience working in the management bodies of leading Russian companies. The National Registry currently has 146 members.

By the decision of the Committee for Maintaining the National Register of Independent Directors at the RSPP (Minutes dated April 25, 2007 No. 4), the Rules of Business Ethics for a Member of the National Register of Independent Directors at the RSPP were approved, which list the basic principles of the activities of independent members of the board of directors, the procedure for their election, functioning, etc. .

Since, in addition to the existing National Register of Independent Directors under the RSPP, other organizations also function independently, for example, the Association of Independent Directors, the author of this work agrees with the proposals of E.O. Dmitriev. on the introduction of a self-regulatory organization of independent directors, whose powers, in particular, must include:

— establishing qualification requirements for independent directors;

— identifying the compliance of independent directors with the requirements;

— carrying out advanced training of independent directors.

Of course, in the modern conditions of development of corporate relations in Russia, certain circumstances hinder the introduction of the institution of independent directors. The main problems for independent directors arise in relationships with the management of joint stock companies, who perceive the “independent” director as a measure of control and supervision over the activities of the remaining members of the board of directors. However, we believe that in the course of the development of corporate relations, as well as corporate culture, the importance of this institution is realized by all participants in legal relations.

In conclusion of the study by the Institute of Independent Directors, it is worth paying attention to the issue related to the motivation of companies to invite independent directors.

G. Shalgimbayeva names a number of reasons for deciding to attract an independent director to the work of the Board of Directors:

• an independent director monitors the interests of all shareholders of the company;
• the transparency and publicity of the company increases;
• for shares of companies with experienced directors on the board, investors are willing to pay a third more;
• the company’s reputation improves in the eyes of foreign players;
• connections of independent directors can open many doors;
• an independent director is a reputable advisor.

An important factor contributing to the development of the institution of independent directors will be the adoption by the State Duma of the Russian Federation of amendments to the Civil Code of the Russian Federation. Within the framework of bill No. 47538-6 of the Federal Law “On amendments to parts one, two, three and four of the Civil Code of the Russian Federation, as well as certain acts of the Russian Federation”, the functioning of public societies, whose shares and securities convertible into their shares are publicly offered (by open subscription) or publicly traded on the terms and conditions established by laws about securities. As assumed by the drafters of the bill, the functioning of public companies without the involvement of independent directors in its management will be impossible.

Based on the foregoing, the author is confident in the positive dynamics of development of the institution under study in the Russian Federation, and believes that it is independent directors who will raise the level of corporate governance of Russian companies to a new qualitative level, which will certainly have a positive impact on the development of corporate law in general and the quality of corporate governance in particular.

CONCLUSION

Summing up the results of the dissertation research, it should be noted that the analysis of current legislation, scientific literature, and examples of arbitration judicial practice allowed the author of this work to come to some conclusions of a theoretical and practical nature.

Relations related to the formation of a company management system and the construction of corporate control are very relevant today. The identified problems of the national historical development of these relations, the insufficient development of certain issues of corporate governance and control hinder the achievement of the proper level of development in these issues. However, as we note, Russian law is subject to change: the developers of part one of the Civil Code of the Russian Federation propose new ways to resolve issues arising in corporate law, arbitrage practice also develops its own rules for solving the problems described in this work.

Analyzing corporate governance in detail, the author has identified two approaches to defining this concept. Thus, there is a broad approach, according to which corporate governance includes the activities of all (any) persons involved in managing the company. In a narrower understanding of this term, corporate governance represents the activities of the bodies of a legal entity. The author of this work comes to the conclusion that corporate governance can only be carried out by the management bodies of a legal entity. However, a broad interpretation of the indicated definition cannot be excluded from use.

The master's student analyzed the principles and approaches of corporate governance and concluded that most principles, including those borrowed from European law, are declarative in nature in Russian legislation, practical application they do not, since they are all enshrined in the Code of Corporate Conduct, which is not of a “mandatory” nature.

The dissertation author found that among the authors there are different definitions of corporate control. This is due, among other things, to different approaches (understanding) of this term. As in corporate governance, there is a broad and narrow understanding of the designated phenomenon. The watershed, in our opinion, lies precisely in establishing the difference between corporate control (control over the decision-making of a corporation both by its bodies (board of directors, general meeting of shareholders) and other persons (financial institutions, management, creditors, etc.)), and the right to manage the corporation (the ability to exert a decisive influence on decision-making, which only the participants of the corporation (shareholders or members of the company) have). We believe that only participants in a legal entity can exercise control over a corporation.

The author defines the degrees (threshold values) of corporate control. The author's interpretation and typology is proposed, based on the rights granted by law to the owner of a particular block of shares (shares). In the course of writing the work, the characteristic features of corporate control were identified and foreign experience was generalized.

As for cross-ownership, the undergraduate speaks negatively about its complete ban and proposes the introduction of certain restrictions at the legislative level. As alternative option The work analyzes the approach associated with the application of the analogy of the law to the cross-shareholding relations under consideration (clause 3 of Article 72 of the Law on Joint Stock Companies). In other words, in a situation where the shares of the main company are owned by a subsidiary, it is proposed to apply the rules governing relations associated with quasi-treasury shares, including the prohibition of voting with such shares, as well as not accruing dividends on them.

Regarding the institution of independent directors, the author speaks out for its mandatory legislative enshrinement. Gradual introduction of the rule on the mandatory presence of independent directors on the board of directors of joint stock companies. The ideal number of independent directors is 1/3 of the board. For example, in Germany, according to a law adopted in 1976, in companies with more than 500 employees, employees elect their representatives on the supervisory board for 1/3 of all seats. We believe that this approach, with some modifications and changes, will bear fruit on Russian corporate soil.

In order to introduce the institution of independent directors, the author proposes to test this approach on companies with state participation. Subsequently, it can be used in all corporations.

The author of the work also comes to the conclusion that it is necessary to create self-regulatory organizations of independent directors, as well as to legislate (establish) requirements for candidates for the position of independent director of a corporation.

Thus, the conclusions drawn in this study have theoretical and practical significance and can serve to overcome some of the mistakes that are made in the process of managing a corporation, building corporate control, and making corporate control more transparent, democratic and effective.

List of normative legal acts

List of materials of judicial practice

1. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 27, 2010 N 67/10 in case No. A40-13353/09-158-149 // “Bulletin of the Supreme Arbitration Court of the Russian Federation”, No. 8, June 2010.

2. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06/07/2011 N 18439/10 in case No. A81-4955/2009 // “Bulletin of the Supreme Arbitration Court of the Russian Federation”, No. 9, September 2011.

3. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 6, 2011 N 2929/11 in case No. A56-44387/2006 // “Bulletin of the Supreme Arbitration Court of the Russian Federation”, No. 3, 2012.

4. Resolution of the Federal Antimonopoly Service of the Moscow District dated September 10, 2008 N KG-A40/7609-08 in case No. A40-5246/08-83-56 // ATP “ConsultantPlus”;

5. Determination of the Supreme Arbitration Court of the Russian Federation dated April 13, 2010 No. VAS-3863/10 in case No. A56-56067/2008 // ATP “ConsultantPlus”.

6. Determination of the Supreme Arbitration Court of the Russian Federation dated May 11, 2010 No. VAS-3863/10 in case No. A56-56067/2008 // ATP “ConsultantPlus”.

7. Determination of the Supreme Arbitration Court of the Russian Federation dated December 20, 2011 No. VAS-14613/11 in case No. A60-41550/2010-C4 // ATP “ConsultantPlus”.

8. Determination of the Supreme Arbitration Court of the Russian Federation dated December 29, 2011 No. VAS-14989/11 in case No. A21-2060/2006 // ATP “ConsultantPlus”.

9. Resolution of the Supreme Arbitration Court of the Russian Federation dated March 6, 2012 No. VAS-12505/11 in case No. A56-1486/2010 // www.arbitr.ru

10. Determination of the Supreme Arbitration Court of the Russian Federation dated 03/07/2012 No. VAS-16195/11 in case No. A33-14337/2010 // ATP “ConsultantPlus”.

List of used literature

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