In the last few years Russia has introduced extensive corporate legislation governing the creation, management and liquidation of a range of legal entities and other structures through which business may be carried on. These include public and private companies, branches and representative offices and limited and unlimited partnerships. A basic description of each of these forms is set out in the Civil Code of 1994. Further, more detailed regulations are set out in respect of some of the structures in the laws governing particular types of structure e.g. the Law on Joint Stock Companies of 1995 and the Law on Limited Liability Companies of 1998.
The structures most commonly used or encountered by foreign investors are the representative office, the limited liability company and the joint stock company (of which there are two forms: "open", or public; and "closed", or private). This article will focus on these principal forms.
A representative office with accredited status has been traditionally viewed as the simplest form of business presence that a foreign company could establish in Russia. In the USSR it was the only vehicle available to foreign companies. Although foreigners can now set up a wholly owned subsidiary company and may participate on an equal basis in the various forms of partnership prescribed under Russian law, a representative office remains an effective first-entry vehicle, either alone, or in conjunction with a company of some form. Some of the reasons for this are explained below.
A representative office is not a separate legal entity but an office of the parent entity that is set up in Russia to represent the interests of that parent. In practice, a representative office may conduct business in Russia and may be treated by the tax authorities as generating separate profits from its parent company. However, as a matter of civil law, a representative office does not have its own separate legal identity and this limits the types of business that a representative office may carry on. For example, a representative office may not import goods for purposes other than its own needs, nor may it register title to immovable property in its own name. A representative office may also experience difficulties in obtaining licences and permits to conduct certain types of business.
A representative office may, however, carry out representative functions on behalf of its parent. These include arranging marketing and advertising in Russia; negotiating the terms and conditions of agreements on behalf of the parent entity; and facilitating the execution of those agreements by the parent company. It may also assist in other commercial and legal transactions between its parent and Russian organisations, including the rental of property.
At one time an accredited representative office enjoyed a range of benefits that were not available to branches or companies. Gradually, these benefits have been withdrawn; for example, customs exemptions on equipment imported for the use of the representative office were withdrawn in February 1999. Foreign employees of a representative office may still obtain personal accreditation, which confers certain practical benefits such as (in certain circumstances) the right to import and export personal effects free of customs duty and VAT, and assistance with obtaining multi-entry visas. However, employees of a representative office require work permits.
As a representative office is merely an extension of its parent, the parent remains responsible for the debts and liabilities of the representative office.
A representative office is managed by the "Head of the Representative Office", who is empowered to conduct the business of the office, and to act for the foreign parent company by way of a power of attorney. A representative office should also have a "Chief Accountant". There is no requirement for either the Head of the Representative Office or the Chief Accountant to be a Russian national, although an accountant who understands the intricacies of Russian tax and accounting law is a practical necessity. Since the foreign parent company is fully liable for the debts and obligations of the representative office, some consideration should be given to the management of the office and any internal controls that may be appropriate to mitigate the exposure of the parent company.
Setting up a representative office is often the first step that foreign companies take when entering the Russian market and may be a useful vehicle through which to provide certain services on an on-going basis. For companies in many other business sectors, however, a representative office is not in itself sufficient, although it may form part of a larger structure including one or more companies or other entities.
Limited Liability Company ("Obshestvo s Ogranichennoi Otvetstvennostyu")
A limited liability company is designated by the letters "OOO" before or after its name. It is the simplest form of Russian company and for that reason is often used for wholly owned subsidiary companies of foreign investors. It is similar in concept to a German GmbH, or limited liability company.
The establishment of a limited liability company is governed by Part 1 of the Civil Code and by the Law on Limited Liability Companies of 8 February 1998. It shares many similarities with another form of Russian company, the closed joint stock company, which is described below. The most significant difference between a limited liability company and a closed joint-stock company is that a limited liability company does not issue shares. The charter capital is divided instead into "participations" or "interest" units ("doli"). Unlike shares issued by a joint stock company, these interest units are not considered to be securities and do not therefore need to be registered with the Federal Service for Financial Markets. This goes some way to reduce both the expenses of registration and the bureaucratic hurdles to be overcome by the company. Each holder of an interest unit is referred to as a "participant". As a general principle, the liability of participants in the company for its debts and obligations is limited to the amount of their respective contributions.
A limited liability company may be wholly owned by another business entity provided, however, that the holding entity is not itself wholly owned by a single legal entity or individual. At the other extreme, if the number of participants in the company exceeds fifty, the company is obliged either to reduce the amount of participants, or to re-register as an open joint stock company or production cooperative within a year.
The management structure of a limited liability company is relatively straightforward and may consist of a general director and the participants. A board of directors is not required but can be provided for by the terms of the charter.
At general meetings of the participants, each participant’s voting power will normally correspond to his or her contribution to the company’s capital. However, this principle may be varied in the company’s charter, either on first establishment of the company, or by subsequent amendment to the charter by unanimous approval of the participants.
Transfer of interest units
Interest units or participations in a limited liability company are freely transferable, subject to a statutory right of pre-emption in favour of the other participants. This right cannot be excluded from a company's charter. Thus, a transfer to a third party can only take place once the other participants have had the opportunity to purchase the interest. The procedure for offering the interest units to the other participants and for determining the price at which the units are offered is usually set out in the company's charter.
The charter may place a complete prohibition on the transfer of an interest to a third party. If this is the case, and the other participants decline to purchase the units offered to them, then the company itself will be obliged, by the Law on Limited Liability Companies, to acquire the interest. The company must pay the selling participant the "actual value" of his share of the capital, which is calculated as a proportion of the net value of the company's assets equal to the proportion of the units that the selling participant holds. Payment may be in cash or, with the agreement of the selling participant, in kind. The selling participant has the right to receive the “actual value” of his interest within one year of the moment of transfer of his interest to the company, unless the charter provides otherwise.
Right to withdraw
Every participant of a limited liability company has the right to withdraw from the company at any time without the consent of any of the other participants or of the company. If a participant exercises this right, his interest unit is transferred to the company with effect from the time he serves a withdrawal notice on the company. The company is then obliged to pay the exiting participant the "actual value" of his portion of the capital in cash. Payment must be made within six months of the end of the company's financial year in which the withdrawal notice was served. The company may pay the exiting participant its entitlement in kind provided the participant agrees to this.
This right to withdraw from a limited liability company cannot be excluded by the charter. Any provisions eliminating or limiting the right to withdraw are void. Although difficulties in valuing a participant's interest units and the procedure for re-payment provides some practical disincentive to withdrawal, the existence of the right may undermine the usefulness of this type of corporate vehicle for anything other than a wholly owned subsidiary.
Open and closed joint stock companies
The legislation governing a Russian joint stock company is contained in the Civil Code and the Joint Stock Company Law of 26 December 1995. The latest Law on Amendments to the Joint-Stock Company Law was enacted on 18 December 2006.
A joint stock company may be either "open" or "closed". An open joint stock company ("otkrytoye aktionernoye obshestvo") is designated by the letters "OAO" and a closed joint stock company ("zakrytoye aktionernoye obshestvo") by the letters "ZAO", which appear either before or after the company's name. The distinction between the two corporate vehicles is to some extent similar to the distinction between a private and public company in jurisdictions such as England and Wales. The open joint stock company is the equivalent to a public company in that it can issue shares to the public and such shares are freely transferable without any pre-emption rights in favour of other shareholders or the company. A closed joint stock company, on the other hand, is designed for private or closely held companies and cannot issue shares to the public.
Like a limited liability company, a joint stock company may not be wholly owned by another business entity, which in turn is wholly owned by an individual, or a single legal entity.
The maximum number of shareholders for a closed company is 50. If this number is exceeded the company must re-register as an open joint stock company. There is no limit on the number of shareholders in an open joint stock company.
The management structure of a joint stock company consists of three bodies: (i) the general body of shareholders; (ii) the board of directors; and (iii) the executive body, which can be either collective (e.g. a management board or administration), or a single individual (the general director).
As the supreme corporate body of a joint stock company, the shareholders must hold and attend a general meeting on an annual basis. Extraordinary meetings may be called by the board of directors acting on its own initiative; the auditing commission; the independent auditor; or, a holder(s) of more than 10% of voting shares. The Law on Joint Stock Companies defines certain decisions which are within the exclusive authority of the general meeting of the shareholders and which may not be delegated to any other management body within the company.
The board of directors is responsible for the general management of the company and has authority to decide almost any issue, except those within the exclusive competence of the general meeting of the shareholders. In a joint stock company with less than 50 shareholders, the functions of the board of directors may be performed by the general meeting of shareholders and authority to run the day-to-day business of the company can be delegated to the General Director. Directors are elected by the shareholders in general meeting, usually for the period of one year but they may be re-elected any number of times.
The executive body of a joint stock company may consist of a single General Director, or a General Director and a group of persons acting as a collective executive body. The executive body is responsible for the day-to-day management of the company. The executive body of the joint stock company is usually elected by the shareholders in general meeting, but the charter of the company may transfer responsibility for its appointment to the board of directors.
Issue and Transfer of shares
An open joint stock company may make public offerings of its shares, which are freely tradable on the market. The pre-emption rights and restrictions on the transferability of shares that apply to closed joint stock companies do not apply.
The shares of a joint stock company (whether open or closed) are treated as securities. As such, they are subject to the registration requirements of the law on Securities Market of 22 April 1996. As a general rule, when issuing new shares, all joint stock companies must prepare and file with the Federal Service for Financial Markets, a decision on the share issue; a report on the results of the share issue; and, in certain cases, a prospectus.
Title to shares in a joint stock company is determined by reference to the register of shareholders, which all joint stock companies are required to maintain. Share transfers take effect on their entry into the register and the shareholders' entitlement to participate in shareholders’ meetings is determined by the register. The register may be kept by the company itself or by an independent registry company duly licensed by the Federal Service for Financial Markets. If the company has fifty shareholders or more then the register must be kept by an independent registrar.
Shares of a closed joint stock company may be distributed to a limited group of persons. A closed joint stock company may not offer its shares to the public or an otherwise unlimited number of investors.
The transfer of shares in a closed joint stock company is subject to pre-emption rights in favour of other shareholders. The procedure and terms for the exercise of pre-emption rights are set out in the company's charter, which is subject to the overriding requirements of the Joint Stock Company Law. This provides that pre-emption rights must be exercised within not less than one and not more than two months from the time the shares are offered for sale, and that shares are purchase at the same price as offered to any third person.
The strengthening of shareholders' rights is seen as a priority issue and there are a number of legislative and quasi-legislative initiatives underway to address the many concerns that investors have expressed about the corporate regulatory environment in Russia. The amendments made in August 2001 to the Joint Stock Company Law codify and clarify the procedures for approving what are known as "major" and "interested party" transactions by establishing more precise rules for conducting such transactions. Another major development in Russia has been the publication of a draft "Code of Corporate Conduct", which the Federal Commission for the Securities Market (the Federal Service for Financial Markets is its successor) introduced in 2003.
The Code is based around the general principles set out in the OECD Principles of Corporate Governance and is presently recommended for use by large joint stock companies. Like Corporate Governance Codes in a number of other countries, the Russian Code will not be legally binding, although it is expected that major joint stock companies will incorporate most of the provisions of the Code into their internal documents.
2006 also saw a set of amendments to the Joint Stock Company Law, introducing “squeeze-out” and mandatory buy-out rules with respect to minority shareholders.
The Civil Code describes a range of other entities including full and limited partnerships and additional liability companies. It also provides for non-legal entities such as branches and simple partnerships, and various non-commercial organisational forms that may be used for charities, trade associations and other not-for-profit organisations.