Civil cases on corporate disputes
Previously, the legislation of the Republic of Kazakhstan did not contain a definition of corporate disputes.
However, intensively developing modern economic relations and issues of realization and protection of the rights and freedoms of their participants required the adoption of adequate legal measures.
For the first time, such a concept was introduced by the Law of the Republic of Kazakhstan No. 58-IV dated July 05, 2008 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on corporate Dispute Resolution". The said Law amended article 24 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC).
According to part 2 of this rule, corporate disputes include disputes between legal entities (with the exception of disputes between non-profit organizations), as well as disputes to which the legal entity and (or) its shareholders (participants, members) are parties:
1) related to the reorganization or liquidation of a legal entity;
2) arising from the claims of shareholders (participants, members) of a legal entity to challenge decisions, actions (inaction) of the bodies of the legal entity affecting the interests of shareholders (participants, members), as well as related to violations of the transaction procedure established by the legislative acts of the Republic of Kazakhstan and (or) the constituent documents of the legal entity;
3) arising from the activities of professional participants in the securities market related to the rights to shares and other securities;
4) related to the invalidation of the state registration of the issue of shares, as well as transactions made during the placement, acquisition, and redemption of shares by the issuer.
The following types of corporate disputes can be distinguished in this category:
– an appeal by a participant in a business partnership against a decision of the general meeting of the partnership's governing body;
– on the recognition of the decision of the general meeting of the partnership's participants as invalid;
– exclusion from the state register;
– the obligation of the partnership, represented by the executive body, to submit to the participant a report on financial and economic activities, as well as information on the partnership's obligations to third parties for the entire period of the partnership's activity;
– on the forced withdrawal from the founders and the sale of a share in the authorized capital; – on the decision to convene the annual general meeting of shareholders;
– on the recognition of the decisions of the general meetings of Production cooperatives as invalid and the recovery of damages;
– the obligation to return documents and seals related to the activities of the partnership.
According to Part 1 of Article 30 of the CPC, corporate dispute cases are considered by specialized interdistrict economic courts. This jurisdiction is respected by the courts.
Recognizing the decision of the general meeting of participants of PRINT side pv LLP as invalid.
Thus, Lysenko G.S., a participant in PRINT side pv LLP, filed a lawsuit, indicating that PRINT side pv LLP, according to the founding agreement, he and Amirbekova D.S. are participants in the partnership, each has 50% of the authorized capital. On February 16, 2015, an extraordinary general meeting of the participants of PRINT side pv LLP was held, in which she did not participate.
Considers that the requirements of article 45 of the Law "On Limited and Additional Liability Partnerships" on the procedure for convening an extraordinary general meeting have been violated, since no extraordinary general meeting was convened at the initiative of the executive body of the partnership, and the participant of the partnership, D.S. Amirbekova, did not require the director of the partnership to hold an extraordinary general meeting.
In addition, she believes that, in violation of the requirements of Article 47 of the Law, she did not participate in the extraordinary general meeting and, accordingly, could not participate in voting on the agenda, did not go through the registration procedure of the partnership's participants before the meeting, and there was no quorum for holding the general meeting.
That is, during the extraordinary general meeting on February 16, 2015, the procedure for convening and holding the general meeting was violated, besides, A.Y. Lysenko, who is not a participant in this LLP, took part in the meeting. In this regard, I requested that the decision of the extraordinary general meeting of participants of PRINT side pv LLP dated February 16, 2015 be declared invalid. As established by the case materials, the participants of the partnership are Lysenko G.S. and Amirbekova D.S., each of them has 50% of the authorized capital. On February 16, 2015, an extraordinary general meeting of the participants of PRINT side pv LLP was held with the agenda:
1) About the change of the director of PRINT side pv LLP, about the dismissal of Director Lysenko Gulnara Sergeevna;
2) On the appointment of a new director of PRINT side pv LLP;
3) On making appropriate changes in government agencies. Based on the results of consideration of these issues, the general meeting of the Partnership's participants adopted appropriate decisions.
The court confirmed that an extraordinary general meeting of the participants of PRINT side pv LLP was not convened at the initiative of the executive body, a member of the partnership, D.S. Amirbekova, did not require the executive body to convene an extraordinary general meeting. Thus, the procedure for convening an extraordinary general meeting of PRINT side pv LLP does not comply with the requirements of article 45 of the said Law.
The notice of the convening of an extraordinary meeting of PRINT side pv LLP was not properly sent to Lysenko GS. At the same time, by a letter dated February 05, 2015, Lysenko G.S. informed the defendant that the notification and the convocation procedure did not comply with the requirements of the Law "On Limited and Additional Liability Partnerships". According to paragraph 2 of Article 42 of the aforementioned Law, all members of the partnership have the right to attend the general meeting, participate in the discussion of issues on the agenda and vote when making decisions.
The provisions of the articles of association of the partnership and any other documents and decisions restricting the specified rights of the partnership participants are invalid. Thus, there is no information about the registration of participant Lysenko G.S. from the "List of registration of persons" provided to the court of first instance. At the same time, in the minutes of the extraordinary general meeting, participant Lysenko G.S., who was not registered, is indicated as present at the meeting and taken into account when determining the quorum, as well as her vote is indicated among the voting participants, however, the minutes of the meeting itself are not signed by participant Lysenko G.S.
Thus, the violations of the procedure for holding the general meeting of participants of PRINTside pv LLP significantly violated the rights of a participant in the partnership Lysenko G.S. In this regard, the court found that the extraordinary general meeting of participants of PRINTside pv LLP dated February 16, 2015 was held in violation of the procedure for holding the general meeting established by law, as well as decisions of this general meeting, violating the rights of the participant Lysenko G.S.
Under such circumstances and taking into account the noted violations of the law, by the decision of the Specialized Interdistrict Economic Court (hereinafter referred to as the IESC) of the Pavlodar region dated June 15, 2015, the above–mentioned claim was satisfied and the decision of the extraordinary general meeting of participants of PRINT side pv LLP dated February 16, 2015 was declared invalid.
Another civil case was considered on similar grounds.
Thus, Technoscan LLP filed a lawsuit against Innovation TVS 2020 LLP and the Almaty City Department of Justice to invalidate the decision of the general meeting of the partnership's participants dated August 20, 2014 on the change of the executive body and the cancellation of registration with the Almaty City Department of Justice on October 16, 2014 of information on the change of the executive body ofThe innovation of TVS 2020".
In substantiating his arguments, the author of the claim indicated that the plaintiff, who is a participant in Innovation TVS 2020 LLP with a 40% stake, had not been properly notified of the meeting.
In the case, it was established that on the basis of the said decision of the general meeting of participants dated October 16, 2014, Innovation TVS 2020 LLP notified the Justice Department of the Almaly district of Almaty about the change of the head of the partnership from Murzagaliev A. to Tsai F.V. This notification was registered on the same day.
The violations committed by the defendant, established by the court, are as follows. According to paragraph 1 of Article 46 of the Law "On Partnerships. . ." the body or person(s) convening the general meeting of LLP participants are required to notify each participant of the partnership in writing about its holding at the address indicated in the register of participants, indicating the venue of the meeting, as well as the proposed agenda, no later than fifteen days before the opening day of the meeting.
By virtue of paragraph 11 of the Regulatory Decree of the Supreme Court "On certain issues of the Application of Legislation on limited and additional Liability Partnerships", the decision of the general meeting may be declared invalid if the convocation procedure is violated. No evidence has been provided to the court regarding the notification of Technoscan LLP to convene a meeting of participants of Innovation TVS 2020 LLP on August 20, 2014.
At the same time, the failure of the defendant, Innovation TVS 2020 LLP, to attend the court hearing for a disrespectful reason was regarded by the court as the defendant's unwillingness to provide evidence to substantiate his arguments. In this regard, the plaintiff's arguments about the invalidity of the decision of the general meeting of the LLP participants, in the opinion of the court, deserve attention.
Taking into account the above, the decision of the Council of Economic and Social Council of Almaty dated May 06, 2015, the decision of the general meeting of participants of Innovation TVS 2020 LLP dated August 20, 2014 on the change of the executive body was declared invalid. The registration with the Department of Justice of Almaty on October 16, 2014 of information on the change of the executive body of Innovation TVS 2020 LLP has been canceled.
Exclusion of legal entities from the state register.
Pavlodarenergosbyt LLP, suing JSC Institute for the Development of Electric Power and Energy Supply (Kazakhenergoexpertiza), a third party of the State Institution Department of Energy and Housing and Communal Services of the Pavlodar region, for forcing them to exclude the following from the state energy register.
Pavlodarenergosbyt LLP has received a letter from ex.No. 23-27-13 dated November 20, 2014 from the defendant stating that in accordance with the Rules for the Formation and Maintenance of the State Energy Register, Pavlodarenergosbyt LLP is included in the list of subjects of the State Energy Register (hereinafter referred to as the SER) However, Pavlodarenergosbyt LLP, which is an energy supply organization, is not a consumer of Pavlodarenergo JSC, and does not have contractual relations with it for the consumption of the above volumes of heat and electric energy.
These volumes of energy for further sale are purchased on the basis of purchase and sale agreements within the framework of the activities of Pavlodarenergosbyt LLP, as an energy supply organization. The plaintiff repeatedly sent letters to the defendants with attached documents confirming their non-affiliation to the subjects of the State Energy Register and providing other justifications.
However, to date, the defendants have not taken measures to exclude Pavlodarenergosbyt LLP from the GER. At the hearing, it was established that the plaintiff was included in the state energy register on the basis of information provided by the defendants as a legal entity with an annual consumption of 2,136,441,615 Gcal of thermal energy and 1,206,430,307 kWh of electrical energy.
According to subparagraph 5) of Article 1 of the Law of the Republic of Kazakhstan "On Energy Conservation and Energy Efficiency Improvement" (hereinafter referred to as the Law), the subjects of the state energy register are individual entrepreneurs and legal entities that consume energy resources in an amount equivalent to 1,500 or more tons of conventional fuel per year, as well as government agencies and quasi–public sector entities that consume energy resources. in a volume equivalent to one hundred tons or more of conventional fuel per year.
Under the terms of the contract dated December 28, 2013 for the supply of electric energy between Pavlodarenergo JSC and Pavlodarenergosbyt LLP, the Seller supplies electric energy to the Buyer for the purpose of further energy supply to consumers of the city of Pavlodar and the Pavlodar region, and the buyer undertakes to accept and pay in the amounts and on the terms defined by this agreement.
Under the terms of the contract dated January 01, 2013, the Seller undertakes to supply the Buyer with thermal energy and hot water, and the Buyer undertakes to accept this thermal energy and make payment.
Consequently, Pavlodarenergosbyt LLP acquires these volumes of energy for further sale within the framework of Pavlodarenergosbyt LLP's activities as an energy supply organization.
In accordance with the "Calculation of energy consumption for the economic needs of Pavlodarenergosbyt LLP", the consumption of energy resources by this LLP amounted to: in 2013 – 54,223 tons of conventional fuel, in 2014 – 57,252 tons of conventional fuel.
That is, the plaintiff consumes energy resources for household needs in a volume of less than 1,500 tons of conventional fuel per year, and does not meet the criteria for classification as a GER entity.
In addition, Pavlodarenergo JSC sent a letter to the defendants on January 28, 2015 stating that Pavlodarenergosbyt LLP was mistakenly included in the list of legal entities consuming energy resources and is subject to exclusion from the register of subjects of the SER.
Taking into account the above circumstances, the lawsuit was satisfied by the decision of the Council of Ministers of the Pavlodar region dated June 11, 2015.
This case is an example of how government agencies themselves violate the requirements of current legislation, infringe on the rights of legal entities, thereby provoking corporate disputes.
The case of obliging OlYmP-1 LLP, represented by the executive body, to provide the LLP participant with a report on financial and economic activities, as well as information on the LLP's obligations to third parties for the entire period of the partnership's activity.
Popov E.A., having filed a lawsuit with the court, requests that OlYmP11 LLP, represented by the executive body, Director Isin E.E., provide E.A. Popov, a participant in the LLP, with a report on financial and economic activities for 2013, as well as information on the LLP's obligations to third parties for the entire period of the partnership's activity.
According to the case file, the participants of the LLP are Popov E.A. (50%) and Isin E.E. (50%). By the decision of the general Meeting, Isin Ye.E. was appointed to the position of director In accordance with the requirements of Article 61 of the Civil Code and paragraph 1 of Article 11 of the Law "On Limited and Additional Liability Partnerships", participants in a limited liability partnership have the right:
1) participate in the management of the partnership's affairs in accordance with the procedure provided for by this Law and the articles of association of the partnership;
2) to receive information about the activities of the partnership and to get acquainted with its accounting and other documentation in accordance with the procedure provided for in the articles of association of the partnership;
3) to receive income from the activities of the partnership in accordance with this Law, the constituent documents of the partnership and the decisions of its general meeting, etc. According to Article 18.1 of the Charter of OlYmP-11 LLP, the Partnership is obliged annually, as well as at the request of its Participants, to provide information about the activities of the Partnership affecting the interests of its Participant.
In accordance with Article 13 of the Charter of OlYmP-11 LLP, a director acts on behalf of the Partnership, who resolves all issues of the Partnership's activities. It follows from the plaintiff's statement and the representative's explanation that since October 2012, the director of OlYmP-11 LLP, E.E. Isin, has restricted E.A. Popov's access to both the company and information about the partnership's activities, as well as to accounting and other documentation.
In this regard, he applied to the Department of State Revenue for the Oktyabrsky district of Karaganda for information on the components of the annual financial statements of OlYmP-11 LLP for 2013. According to the information received on the components of the annual financial statements, OlYmP-11 LLP had short-term liabilities in the amount of KZT 6,901,120 at the beginning of the reporting period. By the end of 2013, short-term liabilities amounted to 3,947,208 tenge.
It follows from the letter submitted by the plaintiff that he asked the defendant for a report, to which there was no response. The court found it proven that the rights of the participant of E.A. Popova LLP, provided for by the legislation of the Republic of Kazakhstan, were violated.
In accordance with Article 65 of the CPC, the defendant did not provide the court with explanations or evidence that the information that the plaintiff wants to see is missing.
By the decision of the Council of Economic and Social Council of the Karaganda region dated May 20, 2015, the claim of Popov EA was satisfied, it was decided to oblige OlYmP-11 LLP, represented by the executive body, Director Isin Ye.E. or another person replacing him, no later than 10 days from the date of entry into force of the court decision, to provide the participant of the LLP Popov EA. for review, reports on the financial and economic activities of OlYmP-11 LLP for 2013, as well as information on obligations (fulfilled and unfulfilled) to third parties for the entire period of the partnership's activity.
On the forced withdrawal from the founders and the sale of a share in the authorized capital.
Thus, Karaungur LLP filed a lawsuit against Grishin V.V., Galstyan T.M., Tsygankov A.G., who indicated that on September 29, 2011, Karaungur LLP was re-registered due to a change in the founding members.
According to the charter, the main purpose of the partnership is to generate income. To date, the new participants who joined the LLP in accordance with clause 3.2 of the charter Tsygankov A.G., Grishin V.V., Galstyan T.M. have not fulfilled their obligations, thereby causing significant damage to the LLP. At the general meeting of the LLP participants on October 08, 2014, Tsygankov A.G., Grishin V.V., Galstyan T.M. were removed from the founders with the distribution of shares in the authorized capital. Based on the above, the court was asked to remove the defendants Tsygankov A.G., Grishin V.V., Galstyan T.M. from the founders of Karaungur LLP.
By the decision of the Council of Economic and Social Council of the East Kazakhstan region dated June 23, 2015, the validity of the claims of Karaungur LLP was confirmed and the specified participants of the partnership were removed from the founders.
In the case of the claim of S. Morozov, a participant in Teleuvelirtorg LLP, to G. Shishkina, a participant in VES – Media LLP, for the obligation to return documents and seals related to the activities of Teleuvelirtorg LLP and VES - Media LLP, it was established that he is a participant in Teleuvelirtorg LLP, which owns 33.3 % of the share in the authorized capital of Teleyuvelirtorg LLP, as well as 80% of the share in the authorized capital of VES – Media LLP. Based on the Minutes of the general meeting of participants dated March 16, 2015, which was duly convened and held on the initiative of the participants of S.M. Morozov LLP. and Gubchenko V.I., it was decided to dismiss Shishkina G.B. from the post of director and appoint Morozov S.M. Director of Teleuvelirtorg LLP. The participants of the LLP complied with the procedural requirements regarding the convening of the general meeting. The director of Shishkina LLP, G.B., ignored the demand of the participants of Morozov S.M. and Gubchenko V.I. LLP dated January 20, 2015 to convene an extraordinary general meeting of the partnership's participants on February 11, 2015. On February 24, 2015, participants of Teleuvelirtorg LLP, S.M. Morozov and V.I. Gubchenko, sent a letter to G.B. Shishkina. the notice of the extraordinary general meeting of participants, which was received by the respondent. Since 66.6% of the total number of votes in the LLP were present at the general meeting, represented by S.M. Morozov – 33.3% and V.I. Gubchenko – 33.3%, the extraordinary general meeting of the LLP participants on March 16, 2015 was valid, and the quorum conditions were met. The meeting decided to prematurely terminate the powers of the executive body of the partnership of G.B. Shishkina from March 17, 2015, with her transfer to the position of manager in the LLP with remuneration in accordance with the employment contract concluded with her; appoint S. Morozov to the position of director of LLP; oblige Ms. G.B. Shishkina to hand over to Mr. S.M. Morozov personally or to his authorized representative the seal, the founding documents of the LLP, etc.
Shishkina G. ignored these demands. She also, having been duly notified, did not appear at the court session without valid reasons, did not submit arguments and documents that could influence the court's decision. In connection with this absentee decision of the Council of Economic and Social Council of Almaty dated May 22, 2015, the claim of S. Morozov was satisfied.
When considering cases in this category, the courts are guided by:
The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code);
The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC);
The Law of the Republic of Kazakhstan "On Limited and Additional Liability Partnerships" dated April 22, 1998 No. 220;
The Law of the Republic of Kazakhstan "On the Production Cooperative" dated October 5, 1995 No. 2486, as amended on May 20, 2006 No. 143;
The Law of the Republic of Kazakhstan "On the Consumer Cooperative" No. 197 dated May 08, 2001;
The Law of the Republic of Kazakhstan "On Business Partnerships" dated May 2, 1995 No. 2255, as well as the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 10, 2008 No. 2 "On certain issues of application of legislation on limited and additional liability partnerships".
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