In late June, the High Court of London in a dispute between the structures of businessmen Vladimir Potanin (Bonico and Whiteleave), Roman Abramovich and Alexander Abramov (Crispian) on the one hand and UC Rusal Oleg Deripaska on the other hand ruled in favor of the latter. As a result, the structure of Potanin Whiteleave had to return Crispian 2.1% stake in Norilsk Nickel. On Friday, September 14, the court published the reasoning part of the decision. "Vedomosti" got acquainted with a copy of the document, the authenticity of which was confirmed by a person close to one of the sides of the process.
UC Rusal challenged in the High Court of London the legality of Bonico's offer to sell it to 3.99% of Norilsk Nickel. Judge Stefan Phillips concluded that between Crispian and Whiteleave there were additional agreements that violated the requirement of fair dealing and Norilsk Nickel's shareholder agreement of 2012.
What is the dispute about
In early 2018 the structure of Potanin Bonico offered Crispian to buy out 3.99% of Norilsk Nickel. She sent a commercial offer to Crispian. According to the terms of the shareholder agreement of Norilsk Nickel, UC Rusal made a proposal to Oleg Deripaska, which owns 27.8% of Norilsk Nickel, and another structure of Potanin - Whiteleave, through which the businessman controls 32.9% of Norilsk Nickel.
The parties got an opportunity to buy 1.9% and 2.1% of Norilsk Nickel, respectively. But UC Rusal challenged this in the High Court of London - in the opinion of Deripaska's company, such a proposal contradicted Norilsk's shareholder agreement of 2012.
In March, Crispian and Whiteleave agreed in court that UC Rusal will not block the sale of the share of Crispian in Norilsk Nickel. A key condition of the agreement was the opportunity to cancel the transaction if the court acknowledges that the Bonico proposal did not comply with the shareholder agreement. In the end, Whiteleave Potanin in late March bought a 2.1% stake in Norilsk Nickel from Crispian. And in early September, by a court decision, the package was returned to the original owner.
Judge Phillips points out that the only issue he reviewed and analyzed was how and what was discussed and agreed between Whitemanave Potanin and Crispian Abramovich and Abramov during the deal to buy a stake in Norilsk Nickel.
Crispian received a commercial offer to sell 2.1% in Norilsk Nickel from an "unscrupulous" third party, he said. A bona fide third party can not be either Bonico or Whiteleave (Potanin's structure), nor UC Rusal controlled by Deripaska, nor Crispian (Abramovich and Abramov). They could not send a bona fide proposal on behalf of the "third party", as well as affiliated companies and organizations, writes Phillips.
Whiteleave offered Crispian a stake of $ 200 million for Norilsk Nickel. The premium was fixed and did not depend on the size of the package sold: "It did not change after February 2, 2018, at the last moment, Crispian reduced the package for sale from 4, 15% to 3.99%. "
"This was a surprisingly non-commercial approach for a very shrewd and successful businessman (Potanin). In my opinion, this can only be explained by the fact that there was some additional factor, "the judge writes.
Phillips concludes that Crispian and Whiteleave decided to sell 3.99% of Norilsk Nickel to Potanin's structures with a $ 200mn premium. "The parties expected that UC Rusal will not be able to fulfill its obligations under the preemptive right of purchase. And the second part (2.38%) will be sold at a market price, "the court said. The judge also stresses that the price of shares stipulated in the Bonico deal is not market-based, which also does not indicate the good faith of Bonico as a third party.
Phillips's judge also was surprised that neither Abramovich nor Abramov took personal part in the court sessions: they did not take advantage of the possibility of video communication, or even the opportunity to give written testimony.
A representative of Interros said that the company had received the motivation part, was studying the judge's arguments and his interpretation of the shareholder agreement and ROFR (preferential right of purchase). "The decision on the appeal will be taken on the basis of the analysis," he said.
The disagreeing party has 21 days to file an appeal.