INFORMATION LETTER OF PRESIDIUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of June 25, 2009 No. 131

The presidium of the Supreme Arbitration Court of the Russian Federation discussed the Overview of practice of consideration by Arbitration Courts of disputes on the privilege of share acquisition of private companies and according to article 16 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" informs Arbitration Courts on the developed recommendations.

Appendix: the overview on 32 sheets.

Overview of practice of consideration by Arbitration Courts of disputes on the privilege of share acquisition of private companies

1. The Federal Law "About Joint-stock Companies" does not provide the privilege of share acquisition of private company, alienated on others, than purchase and sale, to agreements

The shareholder of private company (further - closed joint stock company, society) took a legal action with the claim for transfer into himself of the rights and obligations of the acquirer of shares of this society for the agreement of exchange signed by other shareholder with the third party.

By resolution of the Trial Court satisfaction of the claim it is refused with reference to the fact that Item 3 of article 7 of the Federal Law of 26.12.1995 N 208-FZ "About joint-stock companies" (further - the Join-stock companies law, the Law) provides the privilege of share acquisition of closed joint stock company in case of their alienation to the third parties only according to the purchase and sale agreement and does not mention the agreement of exchange.

According to court, in case of alienation of shares under the agreement of exchange it is impossible to apply the method of protection of the privilege of share acquisition provided by the paragraph the seventh Item 3 of Article 7 of the Join-stock companies law consisting in transfer into the claimant of the rights and obligations of the buyer as under the agreement of exchange, unlike the purchase and sale agreement, counter provision consists in transfer instead of shares of goods, but not money. As at the claimant can not be available goods which transfer in exchange for shares is the subject of the agreement of exchange, and its acquisition at other persons can be complicated or it is impossible, in case of transfer into the claimant of the rights and obligations under the agreement of exchange the obligation on transfer of goods in exchange for shares could be obviously unrealizable that would lead to violation of the rights of person alienating shares under the agreement of exchange.

The claimant appealed the judgment in Appeal Court and asked it to cancel in connection with the wrong use of the provisions of the law about joint-stock companies. According to the claimant, the relations connected with alienation of shares of closed joint stock company are similar to the relations arising in case of alienation of share in the right of common property which are settled by Article 250 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation). Therefore, the claimant considered, to the disputable relations owing to analogy of the law (Item 1 of article 6 Civil Code of the Russian Federation) Item 5 of article 250 Civil Code of the Russian Federation according to which rules of this article about the privilege of purchase of share in the right of common property are applied also in case of alienation of share under the agreement of exchange is subject to application.

The claimant also believed that the argument of court about basic impossibility of transfer of the rights and obligations under the agreement of exchange is unreasonable as in the case under consideration goods were shares of other joint-stock company which are traded on the market and therefore are available to acquisition by the claimant. The possibility of non-execution by the claimant of obligation to transfer goods is not obstacle for transfer of the rights to it and obligations under the agreement of exchange as in case of violation of this obligation the creditor has the right to use the protection methods provided by the law. Besides, the argument about impossibility of transfer of the rights and obligations under the agreement of exchange contradicts regulation of Item 5 of the article 250 Civil Code of the Russian Federation allowing this transfer concerning the rights and obligations of the Party, acquiring share in the right of common property under the agreement of exchange.

The Appeal Court refused satisfaction of the petition for appeal and left the judgment without change, having specified the following.

According to Item 1 of article 6 Civil Code of the Russian Federation analogy of the law is applied in cases when the relations are directly not settled by the legislation or the agreement of the parties and there is no business custom, applicable to them. Concerning disputable legal relationship the gap in legal regulation is absent. Follows from interpretation of provisions of Item 3 of Article 7 of the Join-stock companies law that the legislator, determining the relations within which the privilege of share acquisition is applicable, did not provide sales opportunity of this right in case of alienation of shares under the agreement of exchange. The corresponding legal line item found reflection in the subitem 9 of Item 14 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 18.11.2003 N 19 "About some questions of application of the Federal Law "About Joint-stock Companies" (further - the resolution of the Plenum N 19).

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