The Arbitration Court of Moscow is considering the case pertaining to the invalid registration of Petrocommerce Bank. This is the third attempt at justice: to return the money to the depositors that played a very important role in the authorized capital of the bank, when it was being registered.
There is a certain unbalance of forces in this game. On the one hand, there are oligarchs who are waging war for their territory. On the other hand are those who stand for proprietary of the ordinary citizen, trying to return the money to their owners. If this story is over with the court no longer ignoring the Law, then this will be an unexampled case. Who is going to win?
Unfortunately, the result has actually been predetermined. It is an open secret that there is only one law that never has any violations: the law of double standards. This is a very curious situation: the Law and the State in Russia take the side that can bring profit. Ordinary mortals are not in this category, of course. However, we have heard so many passionate speeches on television from high-ranking officials about strengthening laws, struggling with corruption, etc. Were they only nice mottoes, or positive tendencies?
Everybody remembers the situation with TV-6 television company, when the LUKOIL company initiated the legal proceedings asking for the liquidation of the television company. It was explained that the debts of the company exceeded its assets. TV6’s debts made up $12 million at that time. There were five lawsuits filed, with four of them disputing the competence of the meetings of the shareholders. It was eventually ruled to liquidate TV6 on the ground of the expertise of the annual balances of the company over the period of 1998-2000.
The company LUKOIL-Guarantor (a branch company of LUKOIL, which owned 15% of TV6 stocks) published a press-release that was signed by Director General Mikhail Berezhnoy: “We are not pursuing any political goals; we are simply standing for our rights as a shareholder – the rights, which have been repeatedly broken. The owners of the control stock of TV6 shares did not give us an opportunity to participate in the administration.”
This example was not incidental. In the TV6 story, LUKOIL was legally standing up for its ownership rights, laws were working for the company, and courts were executing them. Our story has a similar plot: there are shareholders standing for their rights and the other party violated those rights, being guided with its own strong ambition. But, in this case, LUKOIL (Bank Petrokommerce) is on the other side of the barricade. Can you imagine this blatant impudence: scientific and industrial concern Futurum being exasperated with one of the largest banks of the country! For what? This concern has been simply deprived of its propriety. The concern started fighting back instead lying down. Then it turns out that a law is rather a relative notion and that it works only when it is expedient. Rights can be different too, only money or telephone rights are beyond competition.
This is a long and messy story. The line of court procedures has been going on since 1993, when a scientist decided to help the industrial and scientific enterprise Futurum in its hard moment. The scientist raised a loan for the company as a natural person, and passed it over to Futurum on the same basis. The guarantee of the loan was the share of the company in the authorized capital of Bank Pertocommerce. However, Futurum failed to pay the money back. The company's administration changed, and the new managers advised its creditor that the enterprise did not have any assets and that the only way to get the money back was to find more funds and buy Futurum’s share of five percent in Bank Petrocommerce, which was the guarantee of the repayment. The offer was accepted.
The most interesting thing took place when the new owner of the five percent of shares of Bank Petrocommerce decided to put its legal rights of a shareholder into effect. It became known that it did not have any rights or shares in the given enterprise, since it was being passed the stocks over, and the bank was a share bank at that moment. In 2002 Futurum invested ten million rubles in the authorized capital of the bank, pursuant to the payment order. Although the stocks and shares of the balance were totally equivalent, the bank was formally a share bank. Our character purchased stocks on the sale agreement, and not shares, so it happened that he actually bought nothing. However, what about the pledge guarantee of the loan? Futurum was pronounced bankrupt, external management was instituted, and the external manager turned out to be very honest and meticulous. He sued Bank Petrocommerce, trying to bring justice. It was not easy; actually, it was impossible.
The court completely ignored the fact of a violation of the law on the part of the Russian Federation Central Bank (on the ground of the documents, which were null and void relative to the situation): in 2000 the Central Tariff Directorate of the Central Bank of Russia registered the re-organization of the bank from a Limited Liability Company to a Joint-Stock Company. This was performed illegally, turning a blind eye on the fact that only two-third of the total number of shareholders took part in the meeting, whereas the Federal law “On Limited Liability Companies” stipulates the unanimity.
Furthermore, the fact of the forgery of documents was not paid any attention to. N.Pankratova, who signed the documents on re-organization in the spring of the year 1994 on behalf of the Central Tariff Directorate of the Central Bank of the Russian Federation, was took the position of the deputy chief of one of the departments of the Directorate, she was not entitled to sign anything, she was not on the list of those persons, whose signature was legalized with the official stamp of the Central Bank of the Russian Federation. The structural changes of the bank that were registered on the other side of the front page of the charter, did not contradict the functioning law, as they were totally different from those documents, which were signed by N. Pankratova and submitted to the court.
Despite two court decisions, the collaborators of the Moscow Central Tariff Directorate of the Central Bank refused to present the original registration case of Bank Petrocommmerce to the court. The details mentioned above allow to come to conclusion that the document appeared after, as a substitute to the original one. The appeals court accepted it as evidence and cancelled the decision of the court of the first instance.
At the beginning 2000, there was an act of execution submitted to the Moscow Central Tariff Directorate from Meshansky municipal court regarding the retrieval of the proprietary right on the share in the capital of Bank Petrocommerce to Futurum Ltd, together with other banks’ stocks. All banks executed the decision of the court, except for Bank Petrocommerce. In response to the act of execution that was submitted to the Central Tariff Directorate of the Central Bank of Russia, D.Yan (deputy chief) said that he did not notice Bank Petrocommerce on the list of debtors, secondly, he offered to force the Moscow Central Tariff Directorate to the execution of the court decision with the help of police officers. According to D.Yan, it happens that police officers are supposed to make the Central Bank of Russia do the things that the Bank is obliged to do within the scope of its authorities and according to the laws “On the Central Bank (the Bank of Russia) and “On Banks and Banking Activity.” Here you go!
The case “About the registration of Bank Petrocommerce as invalid” is being currently heard at court – in other words, the case is about the liquidation of the bank that operated on the illegal basis. The court possesses the documents, which verify that:
1. In 1992 the Central Tariff Directorate of the Central Bank of Russia registered Bank Petrocommerce and violated the following laws and standard acts: the Federal Law “On Banks and Banking Activity”, the Federal Law “On Foreign Investments in Russia,” the standard act of the Central Bank (Letter №4) “On the registration and licensing order of commerce banks,” which directly prohibited to territorial departments to register the banks with foreign participants. It was legally banned to establish authorized capitals of the banks at the expense of loans (several participants submitted loans to the authorized capital). Letter №4 prohibited to grant a license, until all participants paid a part of the authorized capital: one participant paid 35%, others did not pay anything at all, but the licence was granted anyway. 2. When the bank was being registered, there was a constituent document used, which did not comply with the requirements of the law that was valid at that moment.
The list of those violations can go on, but the things that we mentioned are enough to see very serous infringements of the law. Now we just have to wait and see what happens. If the court makes a legal decision, not in favor of Bank Petrocommerce, then one could forecast the economic consequences. Can you imagine that – to close down the biggest bank! But there is a significant example from that – there is power in Russia. The law is equal for anyone! Depositors will get their money back! This happy end seems rather fantastic, though.
Translated by Dmitry Sudakov