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Pirates of the 21st century. Raiding in Ukraine.
Recently, the topic of raiding in Ukraine is extremely relevant. The Cabinet of Ministers of Ukraine has established an Interdepartmental Commission on countering raiding. But practice shows that today in the fight against raiding should rely on their own forces. Moreover, it is necessary to prepare in advance, taking preventive measures.
If we analyze the practice of raider attacks in Ukraine, we highlight the main features and components of raiding:
• This is always an unfriendly takeover, loss of control over an enterprise or property without the will of its owner;
• The suddenness of raider attacks;
• Illegality of actions of raiders. It should be noted that this feature is not always necessary, because the transfer of control over the enterprise without the will of the owner, but in compliance with current legislation, is quite possible;
• The use of judicial decisions (including arbitration), which are made without sufficient justification;
• Support from government agencies. Often raider attacks are preceded by multiple inspections of regulatory authorities, conducted without sufficient justification;
• Power component;
Thus, raiding can be defined as unlawful seizure of control over an enterprise and (or) its assets against the will of the owner using decisions of state and judicial authorities and, as a rule, with the use of force.
It is necessary to begin to fight the possible occurrence of raider attacks from the moment the enterprise was created, and these must be comprehensive measures, and they must be implemented constantly.
I would like to dwell on some of these measures, in my opinion, which are quite effective:
• The history of the founding of the enterprise must be impeccable, and the constituent documents fully comply with the current legislation of Ukraine;
• Acquisition and sale of assets of an enterprise should be carried out in strict accordance with the law. All calculations are preferably carried out officially, with an indication of their real amounts in the contracts;
• In the charter of the enterprise, its local acts, it is more than desirable to establish an effective mechanism for monitoring the execution by managers of transactions involving actions with finances and loans;
• It is necessary to have a Regulation on trade secrets and confidential information at the enterprise;
• It is necessary to strive for consolidation in the hands of the main owners of the largest possible shares of the enterprise;
• In all agreements concluded by the enterprise in which the enterprise acts as the debtor, the condition must be stipulated that the assignment of the right of claim under the agreement is carried out only by agreement of the debtor;
• It is necessary to carry out constant monitoring:
- assets and liabilities of the enterprise;
- court decisions in respect of the enterprise;
• It is also necessary to stock up on a notarized package of documents. It should include constituent documents, minutes of general meetings, decisions of the governing and controlling bodies of the enterprise, samples of signatures of the main owners and management, seal imprints, documents of title to the main assets. It is necessary to keep a package of documents outside the enterprise, in a place inaccessible to third parties;
• Organization of work on asset protection is not superfluous;
If a raider attack is nevertheless inevitable, or has already occurred, action should be taken quickly, but deliberately. Naturally, an individual approach is necessary in each case, but some methods may be suitable in any case.
The assets of the enterprise should be legally transferred to the ownership of another company under control with a legal form that is more resistant to raider attacks - to sell, contribute to the authorized capital, etc.
In the event of a forceful seizure of an enterprise on the basis of court decisions, it is necessary to immediately appeal such decisions to the courts with a request to suspend their execution, and the main owners should apply to the court to invalidate the decisions of the general meeting held without them, as well as the decisions of the new illegitimate management .
It will not be superfluous to also make statements to law enforcement agencies about an attack on the enterprise, state bodies to combat raiding, as well as to cover your problem in the media.
And, of course, it is highly desirable already at the stage of the implementation of preventive measures to have a strong legal service or a reliable partner in the person of a specialist company, so that in case of a problem with the invaders, quickly and effectively take measures to resolve it.
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