The Ninth Arbitration Court of Appeal of Moscow rejected the claim of the Seychelles World Best Trade (WBT), which demanded the return of a loan of 639.3 million rubles from the airline "Nordavia", controlled by businessman Sergei Kuznetsov, according to a July 3 court ruling. As an argument, Judge Boris Steshan pointed to the need to coordinate such a credit transaction between a foreign investor and a strategic enterprise (Nordavia) in the Federal Antimonopoly Service (FAS). The Seychelles company did not provide evidence that it was approved by the FAS, the deal was found to be void, the judge decided.
"Nordavia", which ranks 17th among Russian airlines by the number of passengers carried (in 2017 - 1.087 million people), is an enterprise of strategic importance for ensuring the country's defense and security, the court says: the company carries out activities related to with transportation of radioactive substances, and also has access to state secrets. During the consideration of the claim it was found that the total amount of the airline's debt to WBT exceeds its assets (639.3 million rubles - this is only a part of Nordavia's loan for a total of more than 13 billion rubles), so the loan agreement entails the establishment of control of a foreign investor , in case the debt is not repaid. For such a transaction, preliminary approval of the FAS was required, the judge said.
In addition to the need to coordinate a loan deal with FAS, World Best Trade did not provide evidence that the credit funds were credited to the Nordavia account, according to the ruling of Judge Boris Stepan. WBT lawyer Ekaterina Dukhina told RBC that the company was ready to provide the documents, but this required additional time, and the judge refused to postpone the hearing.
"This is an unprecedented decision by the Russian court, which violates the interests of not only my client, but also creates a dangerous precedent for relations in the Russian market with the participation of any foreign investor," RBC reported Dukhina. According to her, the company is going to appeal this decision in the following instances.
Norilsk Nickel acquired Nordavia in 2011 from Aeroflot for $ 235 million, of which $ 7 million was paid for the shares, the remaining $ 228 million was the airline's debt. In March 2016, Norilsk Nickel resold the Sky-Invest airline, controlled by businessman Sergei Kuznetsov. And a month later, the Cyprian "daughter" of Norilsk Nickel, Norilsknickel Finance, assigned the Seychelles World Best Trade (WBT) the right to claim Nordavia for loans of $ 182 million and 1.2 billion rubles. (in the amount of more than 13 billion rubles.).
WBT, according to Vedomosti, is controlled by entrepreneur Dmitry Chertcom, the son of former deputy head of Rostransnadzor Vladimir Chertka. But Dmitry Chertok told RBC on Tuesday, July 10 that he had nothing to do with this company. "At that time, I organized their call on the market, but no more than that," he said.
After the change of the lender, a corporate conflict began between Nordavia and WBT: the Seychelles company demanded an early repayment of the ruble part of the loans. April 28, 2017, "Nordavia" announced the attempted raider seizure by the WBT and Dmitry Chertka. The businessman rejected accusations of raiding.
In May 2017, the WBT appealed to the Moscow Arbitration Court with a claim to recover from Nordavia 639.3 million rubles. under a loan agreement. On March 20, 2018, the court rejected this claim, the company filed an appeal, which it lost on July 3.
On January 31, 2018, the Seychelles company filed a second lawsuit against Nordavia for RUB 528.8 million. in the framework of a loan agreement. The amount of claims for two claims is about 1.2 billion rubles.
The lender is not an investor
Under the law on foreign investment, loans granted to strategic enterprises really need to be coordinated with the FAS, because they can lead to a transfer of control to a foreign creditor, said lawyer of the law firm Art de Lex Kirill Dozmarov. But for FAS, the coordination of such transactions is a rarity, he said. Even less often the argument about the lack of approval of the antimonopoly service as evidence of the insignificance of the transaction is used not by the FAS itself, but by the debtor. The representative of the FAS declined to comment.
"When a company of strategic importance attracts significant borrowed funds, then, as a rule, all parties to the transaction very carefully weigh all possible nuances in order to avoid just such cases as occurred with World Best Trade and Nordavia," the partner of the company " NAFKO-Consultants »Irina Mostovaya. According to her, the process of debt assignment was most likely accompanied by an assessment of such risks. This is an unconditional miscalculation, which is likely to be very costly to the lender, she suggested.
The WBT lawyer Dukhin argues that there was a substitution of concepts: World Best Trade issued a loan, not being an investor of Nordavia. Accordingly, she could not establish control over her. "This is nonsense, that the court considered the necessity of coordinating the transaction of the FAS. They, in fact, equated the loan to control the company's activities, "she said.
Under the law on foreign investment, the provision of loans and borrowings by itself can not testify to the establishment of control, since the borrower's obligation to return the money does not lead to the fact that the creditor has the right to determine the borrower's decisions, explained the managing partner of the law firm Chernyshov, Lukoyanov and Partners Grigory Chernyshov. He considers the ruling of the Court of Appeal to be erroneous. "Undoubtedly, such judicial acts may negatively affect the investment climate in the country as a whole and the desire of foreign creditors to lend to Russian borrowers. Let's hope that this obvious miscarriage of justice will be corrected when considering the case in the court of cassation, "he concluded.