How the director of Russian companies change unfriendly owners

The arbitration courts of the three instances of the North-Western District recognized the change in the general director of the joint venture of Viaclist LLC illegal, since the company was under the control of a person from unfinished jurisdiction, which did not agree on their actions with the right to committee. According to the courts, the foreign owner violated the antisancical decree of the President of the Russian Federation. Meanwhile, the Russian Ministry of Finance believes that in such situations, routine personnel permutations are possible without coordination. Disputes due to such cases are increasingly reaching the courts, and lawyers hope to clarify the Supreme Court.

Unfriendly shift

“Kommersant” drew attention to the dispute to change the head of the Russian company on the initiative of its majority owner from an unfriendly state. The history of the proceedings began in March 2023, when the joint Latvian-Lithuanian enterprise Viacratts (registered in Latvia), which has 80% of the shares in Viaduk (Kaliningrad Region), at an extraordinary meeting decided to terminate the powers of the general director Vladimir Denisov. Mr. Denisov also belong to 20% in LLC.

The head displaced from the post, considered the actions of the majority illegal and filed a lawsuit in the Arbitration Court of the Kaliningrad Region in order to recognize the decision of the general meeting of the participants of the LLC invalid. The plaintiff referred to the antisanction decree of the President of the Russian Federation No. 618 of September 8, 2022. The decree obliges persons from the unfriendly countries that control Russian companies to coordinate with the right to committee a transaction to alienate the shares of these organizations and other actions related to the management or activities of the legal entity.

According to the plaintiff, the need follows from this to obtain a permission of the right to committee and to replace the sole executive body of such a company.

In April 2024, the first instance supported the plaintiff's arguments. The court indicated that Latvia belongs to the list of unfriendly states, and referred to clarifications from the letter of the Ministry of Finance of the Russian Federation of October 13, 2022, according to which Decree No. 618 applies to transactions and operations that affect the management conditions of the LLC and the implementation of entrepreneurial activity.

The Latvian-Lithuanian Viaudests challenged this decision, firstly stating that he was not properly notified of the trial, and secondly, that the consent of the right to replace the general director is required. However, these arguments did not convince the appeal. The court again referred to antisancation regulation and indicated that the major filed a petition to familiarize himself with the case file, which means he knew about litigations.

Insisting on his innocence, the majority reached the district cassation. Note that in court representatives of Vladimir Denisov pointed out the negative consequences for the company caused by the change of director. In particular, the LLC excluded from the members of the SRO “Construction Union of the Kaliningrad Region”, which complicated the conclusion of new contracts and entailed the termination of the current state contracts for the construction of roads. And in November 2023, the bankruptcy of Viaduka began. The cassation court eventually supported the conclusions of lower authorities, recognizing the decision of the general meeting of participants illegal. The Latvian-Lithuanian enterprise has the opportunity to file a complaint with the Supreme Court of the Russian Federation (Sun).

Interpretation with extensions

“In a situation with counter -sanctions, when regulation is not perfect in itself,” you can identify two poles in practice: strict adherence to the letter of the law (legal act) or following the political agenda, says Elena Mende, partner of the RU.COURTS legal firm. “From the literal interpretation of Decree No. 618, it follows that the election and appointment of the general director in an LLC with unfriendly participants does not require preliminary permission of the right to committee,” explains Roman Zhirnov, senior lawyer KA Delcredere. In confirmation of this approach, lawyers refer to Letter of the Ministry of Finance of the Russian Federation of February 3, 2025, which did not fall into the field of view of cassation. In it, the ministry clarified its position, explaining that the presidential decree No. 618 does not apply to the appointment and termination of powers of the general director of the Russian organization with unfriendly participation.

The Ministry of Finance also established an exception to this rule. So, if the authority of the head is transferred not to an individual, but to the manager (IP) or the management company (legal entity) under Art. 42 of the Law on LLC, then this requires the permission of the right to committee, says Mr. Zhirnov. Moreover, from the point of view of corporate law, the feasibility of this exclusion is difficult to explain, says Madame Mende.

Judicial practice on such disputes is just beginning to form, says Case by Case lawyer Julia Mikhalchuk. There are no single approach on this issue in the courts.

So, in December 2024, the Orenburg Regional Court ruled that “the decision to change the general director by its legal nature does not apply to transactions to which Decree No. 618 extends, since this procedure is not accompanied by a change in the conditions of management or implementation of entrepreneurial activity,” says Elena Mende. Meanwhile, many lawyers themselves in 2022–2024 interpreted the norms of antisancical regulation expansion, distributing the effect of Decree No. 618 and to change the director, the senior consultant to the corporate practice of the O2 Consulting company, Artem Sinev.

Since the general meeting of the participants of Viaduk decided to appoint an individual with the new director, Decree No. 618 was not violated by official interpretation, Mr. Zhirnov notes. So the conclusions of the arbitration courts in the Viaduct case are likely to “become the only precedent that it is not customary to refer to the preparation of the position,” says Elena Mende.

Julia Mikhalchuk hopes for the transfer of the Viaduka case to the Economic College of the Armed Forces, the clarification of which is “how to interpret the lack of direct restriction on the director’s free shift,” would help to form a single practice. However, the outcome of the dispute in the Armed Forces is not so obvious, adds Mr. Sinev, given the “political aspects” and the company's presence in the bankruptcy procedure. But in general, says Roman Zhirnov, the position of the Ministry of Finance on the change of general director « is already clearly formulated – it remains only for the courts to follow. »

Jan Nazarenko, Diana Lisunova