If the court to recover from AFK «System» on money damages took into account the weakening of the ruble

© RIA Novosti / Ramil to Setdiscoverable in fotobounce company AFK Sistema. Archival photoIf the court to recover from AFK «System» on money damages took into account the weakening of the ruble© RIA Novosti / Ramil to Setdiscoverable the image Bank

The arbitration court of Bashkortostan has completely satisfied the demands of «Rosneft» to AFK «System» in terms of losses from write-offs of loans and redemption of shares «Bashneft», but 57,2 billion roubles for loss of the Bashkir company shares «daughters» AFK sought without taking into account the weakening of the ruble, shows the text of the court decision.

The arbitration court of Bashkortostan, 23 Aug partially satisfied the claim of «Rosneft», it is under control of Bashneft and Bashkir to recover from Sistema and its subsidiary JSC «Sistema-invest» for damages caused by the Bashkir oil company during its reorganization. «The system» to the end of 2014 owned a controlling package of shares of «Bashneft». The court ordered in favor of «Bashneft» 136,3 billion rubles in the total amount of the claim in is 170.6 billion. The reasons for incomplete satisfaction of the claim was not known until the publication of the full court’s decision that contains the rationale for the decision.

«The court believes that defendants adopted the decision on reorganization is a method of asset Stripping of companies «Bashneft», because the terms of the reorganization, which resulted in the company «Bashneft» was the incurred losses determined at the discretion of the defendants. The conduct of the reorganization in January-may 2014, immediately before the taking of stock in court in November 2014 indicates the intention of the defendants to use the corporate reorganization proceedings primarily for illegal withdrawal of assets of controlled companies», — stated in the decision.

Simplified the main transaction in the reorganization can be thought of as an exchange of assets between the «Bashneft» and «daughter» AFK «System-invest». In the result, the oil company lost a package of 49.4% of shares of the «System-invest», which the plaintiffs estimated at 57.2 billion. In addition, «Bashneft» forgiven «daughter» AFK on previously issued debt her loans in the amount of 36.9 billion rubles, and bought from those who disagree with the reorganization of the minority shareholders of their shares in the amount of 12.5 billion rubles. Thus, the amount of the claim initially was 106,6 billion.

According to the court, these requirements have been satisfied in full, at the same time, the court recognized additional losses due to the weakening of the ruble on monetary damages, but not for the lost stake «System-invest».

At a preliminary hearing in June, claims rose to 170,6 billion. The plaintiffs transferred the loss into dollars at the then exchange rate (35,7227 of the ruble on 5 may 2014, i.e. the date of completion of the reorganization of «Bashneft»), citing the fact that the activities of oil companies focused on exports, including reserves on possible losses they hold in dollars. And then the resulting 2,985 billion dollars are translated into rubles according to the exchange rate at the date of calculation of the amount of the claim (57,1602 of the ruble on may 22, 2017), thus obtaining 170,6 billion.

The Bashkir arbitration has collected a total of only 136,27 billion: the above 106,63 billion plus 29,65 billion of additional losses from the weakening of the ruble in terms of losses from write-offs of loans and redemption of shares «Bashneft» from minority shareholders.

Monetary motives

In the text of the decision describes the motives of the court, recognizing additional losses from the weakening of the ruble, a statement which «Rosneft» has caused a strong reaction of the expert community.

«Taking a decision on reorganization of related companies are mandatory for the financial expenses in the beginning of 2014, in the crisis period of economic development associated with the introduction of economic sanctions against Russian legal entities and individuals and the growth rate of the U.S. dollar, knowing the above mentioned the specific economic activities of the company «Bashneft», the defendants could not recognize the inevitability of further increase of the losses caused by the reorganization, because of the impossibility of the timely formation of a society of the foreign currency reserves of performance of monetary obligations in US dollars», — the document says.

Based on the circumstances of the case, the court came to the conclusion that the losses in the specified part are not the usual business risk that are attributable to the company or the new shareholders who acquired shares of companies that lost their assets.

«The defendants were aware of the upcoming retirement of their ownership of shares «Bashneft» is not in the normal civil turnover, as well as the consequences of invalidity of transactions and return of shares in state property. Committing illegal actions in the process of reorganization, immediately before the taking of stock of the illegal possession of the defendants, the latter, acting reasonably and in good faith with due care, of course, could and should have foreseen causing the specified additional harm to society «Bashneft», — stated in the decision.

«Damage to society «Bashneft» in the specified part, due to the inability to meet monetary obligations at the expense of own and borrowed funds, which the company has not received or was forced to spend by the decision of the defendants. The court considers that it is obvious to the defendants company «Bashneft» was deprived of the 36 021 930 220 rubles — in the amount of the unpaid loan and interest, as well as the funds spent on the purchase of shares from minority shareholders in the amount of 12 466 869 998 rubles, the company faced additional costs of currency payments, which are unable to avoid because of the actions of the defendants,» concluded the arbitration.

Thus, briefly the findings of the court are as follows: Sistema JSFC was aware of the specifics of economic activities of «Bashneft» in part dependent on the dollar, and the coming return of a controlling stake in the company to the state, however, contrary to that adopted decisions on the reorganization, according to which «Bashneft» has incurred financial expenses and failed to timely to generate foreign exchange reserves to fulfill its obligations.