The Supreme Court will limit the conditions for issuing investment loans

An increasing distribution among Russian enterprises is obtained by the design of relations with the investor through an investment loan, which allows you to co-financing a business project in exchange for a share of profit. This type of agreement is not specifically regulated by law, as a result there are disputes about what conditions are bonded. In particular, whether such a lender has the right to apply for part of profit from a commercial project throughout its existence. The Supreme Court of the Russian Federation (Sun) will answer this question.

The Economic College of the Armed Forces will consider a rare debate about investmentzam. The story began in August – September 2022, when IP Alexander Mironin provided a good translator (CP) of an investment loan of 2 million rubles. to finance a business project for the production and sale of clothing. Under the terms of the contract, the company had to return the money by four tranches of 500 thousand rubles. Until January 15, 2023. And from January 1 of the same year, KhP pledged to pay IP 20% of the net profit of the project (providing for this, boots and bank extracts), but not less than 100 thousand rubles. Monthly until the exception of the organization from the Unified State Register of Legal Entities. In the agreement, this was called « percentage for the use of a loan. »

In September 2023, the entrepreneur filed a lawsuit against the CP in the Moscow Arbitration Court to recover 3.45 million rubles, including interest, penalties for delay and a fine for failure to provide reports. Based on the judicial acts, the loan amount was returned in January 2023. The first instance partially satisfied the lawsuit, reducing the required amounts as disproportionate to violation. As a result, 700 thousand rubles were collected with CP. interest in January – July 2023, 466 thousand rubles. penalty and 500 thousand rubles. Fulfillment. The court decision involved the subsequent calculation of the amounts up to their actual payment by the borrower. The appeal and cassation left this decision in force.

The company filed a complaint in the aircraft, claiming the unfair and “clearly burdensome” terms of the contract, which significantly violate the balance of interests of the parties. The obligation to pay IP part of the net profit until the date of termination of the sale of the investment project (in the form of the exclusion of the company from the Unified State Register of Legal Entities), according to the CP, does not meet the principle of legality, since « the obligations of interest payments on the loan must terminate the return of the loan itself. » Freedom of the contract is not unlimited, moreover, it is necessary to consider whether the transaction conditions were imposed on a stronger side, the complaint says. CP insists on abuse of the right on the part of the investor and recognition of the controversial points of the contract as invalid, also counting on “review of the size of penalties”. According to these arguments, the case was transferred to the Economic College of the Armed Forces, the meeting was scheduled for May 15.

Investor or lender

“The law does not have such a category as an investment loan; in practice, it means a form of targeted financing in which funds are allocated for the implementation of a particular business project,” says Alena Antonova, partner of the lawphir, Stream Antonova. In Russia, investment loans between legal entities have become a rather frequent phenomenon, “especially in the field of small and medium -sized enterprises, where difficulties with bank lending may arise,” says Evgeny Stroganov, senior lawyer of the Legal Principles consulting. “The lender (and actually the investor) wants to receive his share of profit, and in the event of a project failure, it is possible to return the invested money according to the rules for the loan,” Ms. Antonova explains, therefore, “the conclusion of a full investment agreement is unprofitable for him due to the risk of losing investment.”

Unlike classic loans, the parties here try to establish more complex mechanisms for repaying debt and interest accrual, lawyers explain.

So, in the investment collection agreement, payments in the form of a share of the income or net profit of the borrower are usually provided, says AB Asterisk, Dmitry Hungarian. In this regard, the investment loan agreement is characterized by increased risks for the investor, since without reports, access to the balance sheet and other information, it is impossible to reliably determine the amount of remuneration, Mr. Hungarian indicates. In this case, according to him, the terms of the contract usually oblige the borrower to transfer the necessary documents to the investor and provide for a fine for their failure. Thus, the investor receives guarantees of the return of investments, since the obligation to return the money does not depend on the success of the project, but, on the other hand, he does not have corporate control, direct access to financial indicators and the ability to influence the decision made by the borrower, lawyers explain.

Meanwhile, “investment agreements are often concluded in order to avoid participating in corporate relations, although, in fact, they often contain elements similar to participation in business,” emphasizes the managing partner of Novator Legal Group Vyacheslav Kosakov. In his opinion, there is a risk of “substitutions of corporate relations with such agreements”, which should figure out the sun. Arbitration courts sometimes recognize such agreements with “transactions covering the payment of a share in business,” Antonova, Antonova, also admit. This is especially true for agreements that do not provide for the return of invested funds, lawyers clarify. However, in the case with CP, the obligation to return 2 million rubles. There was a loan.

However, lawyers have no consensus about the deadline during which the investor has the right to receive part of the income from the business project.

Limiting the deadline for paying interest (in the form of a share of net profit) the time of the existence of a business project becomes a frequent phenomenon, says Antonova. According to Yevgeny Stroganov, the term of payments “can be limited exclusively by the time of use of such a loan”, and in the agreement between the individual entrepreneur and LLC, in his opinion, “bonded conditions for the legal entity were formed”. The parties to the contract “cannot establish interest on the use of a loan, which must be paid after the borrower repayed the amount of the main debt,” Dmitry Hungarian agrees.

There is no massive practice on this issue. “Kommersant” discovered in the file cabinet of arbitration cases that in December 2017, the Armed Forces confirmed the legality of a similar transaction, according to which Aristocrat LLC financed the shooting of the film and the series, receiving the right to part of the funds from the exercise of exclusive rights throughout the entire duration of their validity. But in that investment forecast, it was directly indicated to the non -use of the Civil Code for loans. Forward Legal adviser Lyudmila Lukyanova emphasizes that “when structuring such transactions, it is important to correctly describe the legal nature of the amounts that the investor”, and in the dispute of the IP and LLC, the legal technique of the agreement raised issues. She expects that the Armed Forces will explain how the obligations to pay interest and the return of the main debt should be correlated in the investmentzam.

Jan Nazarenko, Anna Zanina