“How have the number of corporate conflicts changed after 2022, their sectoral specificity, response of the authorities and preventing business encroachment?”, – WRITE: epravda.com.ua
The war has become a serious test for business. Despite the joint fight against the aggressor, there are conflicts between the owners and willing to become a business environment. The reasons – disputes of shareholders and managers, distribution of profits, blurring of shares, blackmail, violation of laws and hostile absorption. Corporate rights cover the capabilities of a person or companies that have invested their money or property in business, to participate in the management of the company, to receive part of the profit (dividend) or property in case of liquidation. The content of such rights is determined by the laws and charter of the company. Corporate disputes arise between the members of the company or between the participants and the company itself on the issues of profit distribution, influence on decisions or other rights. Analytical reports of the Supreme Court of Cassation for 2021-2024 are similar to a flexible parabola, which is reduced in 2022 and has increased rapidly since 2023. And in the first half of 2024, the economic jurisdiction of the Armed Forces considered 20% more cases than in January-June 2023. Only 147 court proceedings were recorded in Ukraine. For comparison, in 2021 there were 597. The peculiarities of corporate conflicts are most often considered in courts under Art. 205 of the Criminal Code (forgery for state registration) – 63% of the total number of “raider” cases. Under Art. 206 (counteraction to economic activity) 27% of cases were considered, under Art. 206-2 (illegal seizure of property)-10%. Since 2024, the number of such cases has increased, which indicates the adaptation of the public, economic and corporate sectors to military conditions. Both the judiciary and potential participants in disputes were intensified. Advertising: the events of February 2022 (the beginning of the Great War – the EP) initially paralyzed the business, forcing it to adapt and store resources. However, some have taken advantage of the situation for illegal actions by violating corporate rights. The increase in the number of disputes in 2023-2024 was influenced by migration, mobilization, restoration of business relations and redistribution of business (sale, inheritance, illegal change of owners-“legal raiding”). Corporate disputes are also used to tighten or avoid obligations. Particular attention is paid to legislative changes that violate the rights of entrepreneurs: the prohibition of the shareholder to vote or the forced sale of his shares. In which industries have resumed confrontation with corporate disputes can be divided into two groups: internal and external. The internal include disputes that include differences in the parties of one company, and external disputes related to coercive and/or illegal absorption, alienation or transition of ownership, disposal of assets or parts of corporate rights of the company (raider activity). Corporate disputes should also be divided depending on the subject of the dispute and the organizational and legal form of the company. The most common of these are joint -stock companies (usually formed by large business, corporations, state sector), limited liability companies (mainly private business), farms (if more than one founder – relatives, family members). The objectivity of corporate disputes for the most part does not change for a long time. The most common are: invalidation of decisions of the general meeting of shareholders (participants) of companies; about the share in the authorized capital; on amendments to the constituent documents; on providing information on the activity of the company; on the payment of dividends; on the collection of the value of part of the property of the company in proportion to the share of the participant in the authorized fund of the company; related to the exit, the exclusion of the participant from the company, the transition of the participant’s share in the authorized capital of the company. The activity of corporate disputes has resumed regardless of the field of activity. Businesses are prone to the occurrence of disputes where there is great material interest between participants or there are persons interested in selecting a business or its share. What is the industry leading and why the scripts of “white” and “black” raiding should be separated here. The “white” raiding in certain industries decreased. The fact is that strategic state objects in the leading industries were privatized by all known entities in 1990-2000. It is about oblenergo, regional gas, water supply treatment plants, oil refining, coal, metallurgical industry, mineral production. Such “white” raid was carried out exclusively within the limits of the legislation, without its formal violation. For the most part, there was a merger and acquisition (including stocks). The basis of raiding in countries with a developed market economy is to earn the difference between the value of the stock and property of the absorbing company, which is being sold after seizure. The property complex is usually more expensive than the company’s capitalization. This was the case within 20 years after Ukraine’s independence on state -owned enterprises and assets. Over the last ten years, the land, medium and small business agricultural enterprises, as well as state and communal property, have become popular objects of “white” and “black” raiding. Read also: what has changed in registration of land lease agreements, or as the Ministry of Justice “treats” from the raiders, the popular method of raiding was bankruptcy of state -owned enterprises. “Black” raiding is illegal actions and methods of picking property. They are always illegal and often related to physical violence, bribery, blackmail, force input to the enterprise, forgery of the register of shareholders or other documents that serve the illegal transfer of ownership of corporate rights or affect the scope of such rights of the shareholder or founder. In the segment of small and medium -sized businesses, there are cases of “gray” and “black” raiding associated with the alienation of corporate rights: the transition of rights to a share in the authorized capital of the company in hereditary order. For example, raiders often find former partners in business or false persons, the so -called pounds, which create the following situations for the heirs: fake loan agreements for which they make excessive liabilities that are made within the limits of the hereditary case; fake the decisions of the participants to alienate the assets of the enterprise during the life of a participant or heir; fake corporate rights alienation agreements allegedly signed by the owner for his lifetime; fake the protocols of the Company’s meeting on the alienation or transfer of property rights, corporate rights; They capture by force methods of the premises and the territory of the enterprise. Leaders in raiding can be considered areas where legal conflicts arise. Market participants use them, enhancing their implementation with a corruption component. However, it is always enterprises whose value of assets and the profitability of which are high level or strategic importance to the economy. A separate type of raiding VA, which emerged against the background of martial law, became sabotage with information electronic systems. The most striking example is the recent cyberattack for the State Registers of NAIS SE, which contain information on corporate rights and ownership of real estate, in particular the State Register of Legal Entities and FOP, the State Register of Real Property Rights. There is no business, but you can give entrepreneurs some tips. If a business has a complex structure that combines many legal entities of different jurisdictions, a partnership agreement will help structure and normalize the relationship of both partners. Thanks to a contract that describes ways of decision -making in the most common conflict situations, the court dispute will be short -lived and natural or resolved by mediation. If a business requires investments and attracting to the members of the investor or investment company, it should be in stages using any legitimate methods of regulating the relationship between the investor and the owner of the company. This is necessary to avoid cases of exclusion of the owner from the business or leaving the company in debt to the investor. Such a warranty settlement can be the conclusion of a corporate agreement. It is an influential tool for reconciling all the nuances of further cooperation of the members of the company. It is an integral part of the charter and cannot contradict it, which minimizes possible controversial issues between partners. When approving the charter of the company, it is worth consolidating a clear procedure for inheritance of shares or payments in cash to the heirs in exchange for participation. The inclusion in the participants of minors has advantages and disadvantages. Advantages: Due to the presence of an additional state body that controls the preservation of their corporate rights for children, the company has protection against raider seizures. All actions related to the alienation of particles without the consent of the guardianship and care authorities are recognized as void. Disadvantages: complication of functioning and promptness of decision -making at the general meeting of the company, where the participation of all participants is mandatory. The main advice to the business owner is to control all economic processes, including registration changes in the constituent and other important documents, personally, without relying on the decency of hired management and lawyers. Additionally, it should be noted that the office of the Ministry of Justice created in 2019. The office should control state registration of real estate and business. In other words, he deals with the fight against dishonest notaries and “black” registrars. On May 12, 2022, the Parliament passed a law that gives the office the authority to cancel the decision of state registrars in case of violations in their work. In 2023, this body considered about 13,000 complaints, which prevented numerous raider attacks. In particular, it was possible to prevent the seizure of production premises of one of the largest operators in the grain market in Ukraine. The legislation of Ukraine, seeking EU membership, has a number of obligations to improve national legislation. In particular, on the European Union standards of public administration, justice, corporate governance, strengthening of property protection. Foreign investors do not want to actively immerse themselves in the Ukrainian economy, as state guarantees for property rights are very low and the corruption component is too large. In order to protect ownership, Ukraine has moved to electronic forms of service provision and electronic documents. This should theoretically reduce the use of the corruption component. The transition from a documentary form of shares to a documentary began in 2014, but the transition period is still ongoing. The provision of administrative services through CNAP is mostly in electronic form remotely. There has also been an automation of the distribution of court cases, which reduces the risk of corruption in court processes. In addition, there is a legislative initiative on the introduction of an electronic notary. The key changes in the anti -raider legislation were the introduction of state registration of legal entities and FOPs in automatic regime, changing the procedure for appealing actions of state registrars, the procedure for termination of the land lease agreement, peculiarities of registration of rights to real estate in the presence of encumbrances, mandatory publication According to the results of consideration of complaints in the field of state registration on their sites. However, these legislative changes are insufficient to protect property rights, since the corruption component prevails. There is also no political will to be the appointment and real execution of court sentences for corrupt officials. The state should continue to actively implement legislative changes in all spheres of economy, and the timing of their implementation and transitional periods should be shorter to avoid raiding attacks. The investigation system must be independent, and punishment for such crimes is real.