“The law adopted on June 18 normalizes asset identification procedures, improves the management of various types of property, strengthens control over management and, most importantly, unblocks the management of corporate rights of companies associated with the aggressor state.”, — write: www.pravda.com.ua
The implementation of the asset identification process is important, because after such an analysis, ARMA will not be transferred to management a box with women’s dresses or toilet paper (new) in the amount of 3 piecesas happened before.
It is during the identification that pools can be formed, i.e. a set of two or more related assets that are transferred to ARMA within the framework of one criminal proceeding and must work together. At most, the formation of pools in the Agency’s reporting will prevent manipulation, as was the case with movable property of Mezhyhirya. At that time, the amount of property transferred to management was overestimated, because bottles of wine, furniture and documents, which have no independent value, were recorded separately.
Assets will be taken into management on the basis of the decision of the investigating judge or with the consent of the owner, with the obligatory signing of acts of acceptance and transfer within 10 working days. After additional amendments to the CCP, this will be resolved the problem of procrastination with the transfer of property to the sphere of responsibility of ARMA.
The definition of responsibility for the custody of assets under the ARMA is important, because until now the legislation has not clearly articulated who takes care of assets seized and transferred to the Agency, for which a manager has not yet been selected. These problems were disturbed on meetings of the parliamentary TSK regarding the sale of seized 42 thousand tons of Russian ammonia from the companies “Togliattiazot” and “Mindobriva”, as well as 2.2 thousand tons of potassium “Belkali”.
At the same time, ARMA for the storage of assets can now: hire professional companies for storage, organize security, check the condition of the property, involve experts, take additional measures. Importantly, ARMA will select companies to hold assets through a public procurement system.
In addition, for the assets that will be transferred to managers, ARMA will develop an indicative management plan – a detailed document drawn up for each asset before transfer to management. This will allow potential managers to learn more information about the property, which will no longer be hidden behind the label “for official use”.
Here, the main goal is to provide thoughtful, not chaotic management with clear goals and calculations. The plan can be changed if new circumstances affecting the effectiveness of management appear. This allows you to control the results and ensure the maximum preservation and increase of the value of the seized assets until the final judgment is issued.
A differentiated approach to the selection of managers Before the adoption of the law on ARMA, managers were selected according to public procurement procedures, which were regulated by the Agency itself. These approaches were complex and not fully suitable for such a task, because when selecting a manager, the state does not spend money, but receives it. In addition, such processes were excessively long, because only before the announcement of the competition, the Agency was in some places was being prepared more than 1.5 years.
Therefore, the reform introduces the division of assets into simple (cash, individual movable or immovable property) and complex (property complexes, assets that require the organization of economic activity, etc.) categories with appropriate procedures for selecting managers.
For simple assets From now on, the selection of the manager will take place through the electronic procurement system in two stages:
At the same time, the requirements for the manager of simple assets include, in particular, proven experience in providing services for renting property (intermediary services) for at least three years, the absence of ties with the owner of the seized asset or suspects in the case.
Acceptance of documents for qualification is carried out continuously, and the list of qualified participants must be published by the Agency.
In order to determine the manager of a specific asset, ARMA must conduct an auction among participants who, on the date of the announcement of the second stage of selection, have passed preliminary qualification. And the criterion for winning the auction is the smallest amount of the manager’s remuneration.
For complex assets the procedure includes the following stages:
Only business entities can participate in the selection procedure. But there are additional restrictions – entities that are competitors or dependent on the entity whose assets are transferred to management cannot participate. The Agency may set additional requirements.
The manager of complex assets will be determined by a special commission consisting of eight members – four from ARMA and one each from the business ombudsman, NKCPFR, the Ministry of Economy and the Ministry of Justice.
The reform also provides for the purchase of services “manager of the last hope”. If, after the re-selection of a manager of simple or complex assets, it was not possible to find willing ones, ARMA can purchase management services through regular public auctions in accordance with the law “On Public Procurement”. Companies that previously refused to conclude a management contract based on the results of previous selection procedures are not allowed to participate in such tenders.
It is important that the announcement on the selection of the asset manager should contain, in particular, a full description of the property (name, type, value, technical condition, geographic location, encumbrance, special storage conditions, photos and videos), an approximate asset management plan, transfer conditions with a draft contract and the procedure for determining the manager’s remuneration, qualification requirements for participants with a list of necessary documents.
At the same time, the issue of managing the corporate rights of companies associated with the aggressor state was finally resolved at the legislative level. Now, the manager of a share in the authorized capital or shares is not obliged to coordinate his actions with the owner, if the court has established that such an asset belongs to the Russian Federation, Belarus, their citizens or legal entities associated with the aggressor.
Expansion of grounds for exclusive asset management New ones have been added to the existing grounds for exceptional management – the risks of disruptions in energy supply and the operation of the defense-industrial complex. Now, exceptional management is also applied when there is a risk of interruption of the operation of maritime and inland water transport enterprises, necessary to ensure the export of agricultural products.
In addition, the possibility of exceptional management at the request of military administration bodies was added.
The issue of cultural values is regulated separately. Such assets are also subject to exclusive management with transfer to state-owned museums, galleries, reserves, libraries or archives.
New opportunities to sell assets The law expands the possibilities of realization of seized movable property. It can now be transferred for sale without the owner’s consent by court order if such property deteriorates quickly, loses 50% of its value in a year, or the cost of its storage exceeds 30% of its value in 12 months.
At the same time, ARMA received the authority to initiate the sale of assets that cannot be saved.
Realization is carried out through electronic auctions in the Prozorro system. Sales, securities are sold on organized capital markets, and goods to be traded on organized commodity markets – on such markets.
An important limitation is the ban on selling sanctioned assets subject to a foreclosure action until a court decision on their confiscation has entered into force – this ban does not apply to perishable assets.
Strengthening control over the effectiveness of management The new version of the law improves the mechanisms of control over the effectiveness of the management of seized assets. A clear two-stage system is established: documentary checks at least once a month, field checks – every three months. This will ensure constant monitoring of the preservation of the economic value of the asset, compliance with the terms of the management contract, and the absence of a conflict of interests of the manager.
Previously, the number of on-site inspections remained at critically low levelthat is, ARMA officials checked the effectiveness of management exclusively based on documents, which raised doubts about the quality of such control.
The reform also introduces the possibility of conducting additional inspections based on complaints from asset owners and the right of ARMA to involve representatives of other state bodies for issues requiring special knowledge.
A serious innovation is a clear list of grounds for immediate termination of the contract with the manager: non-fulfillment of essential requirements of the contract for more than two months, existence of a conflict of interests, identification of connections with the owner of the seized asset or suspects in the case, attempts to alienate assets.
In case of termination of the contract, ARMA is obliged to announce the re-selection of the manager within 20 working days – this guarantees the continuity of asset management.
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New regulations on the selection of managers are introduced in stages – six months after the law enters into force. Until then, the transfer to management will be carried out in accordance with current legislation.
Within six months, the Agency must identify all assets that were transferred to it for management before the law came into force, but have not yet received managers.
We expect that the adoption of this reform will be a fundamental change in the system of management of seized assets, will make it more transparent, more efficient and adapted to realities.
Now it is a matter of changes to the Criminal Procedure Code and the adoption of the by-laws, which will allow to fully launch the updated mechanism for managing seized assets, as well as the high-quality implementation of new provisions.
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