Debates of the parties: The Research Institute of systemic research of the Russian Academy of Sciences vs. ANCO “Design Bureau “Korund-M”

POSITION OF THE CLAIMANT

Alexander Zadorozhny, representative of the Research Institute of systemic research of the Russian Academy of Sciences

Changes made to the Charter of the Respondent by members of its Council are invalid. The Research Institute of systemic research of the Russian Academy of Sciences (hereinafter – the Institute, the Claimant), being the sole founder of the Design Bureau “Korund-M” (hereinafter – the Bureau, the Respondent), established the Council of the Bureau, which consisted of three members. Later those persons, having already been stripped of their authority, took six decisions of introducing changes to the Bureau’s Charter.

The Claimant said that the persons, who had signed the minutes of the meeting, were not members of the Bureau’s Council (Articles 10, 14, 29 of the Federal Law № 7-ФЗ dated 12.01.1996, hereinafter – the Non-commercial Organizations Law).

Changing the larger part of the Charter without the founder (the Claimant) being aware of it is a violation of the latter’s rights to supervise the founded organization.

Most changes to the Charter relate to the possibility of acquiring the status of shareholder and founder of the Bureau by third parties.

However, the organizational form of the Bureau (autonomous non-commercial organization) does not comprise membership or introduction of shareholders (Article 10 of the Non-commercial Organizations Law). Furthermore, those changes were availed of: a third party was included among the members of the Bureau 2,5 months later.

POSITION OF THE RESPONDENT

Elena Seritanova, representative of the autonomous non-commercial organization “Design Bureau “Korund-M”

The changes made to the Bureau’s Charter on the base of the contested decisions do not violate the legislation. The Claimant’s allegation that the changes made to the Charter provide for the opportunity for individuals and legal entities to acquire the status of shareholder and founder is not true. For this to happen, it would be necessary to include in the Charter new provisions relating to admittance, to granting rights and obligations to such persons, to the moment of leaving the organization or of termination of the membership. But the contested changes contain no such provisions; therefore, there are no motives to rule them illegal.

The contested changes only introduced wordings employed in the law. They also relate to the activity of the supreme managing body, some other spheres of the Bureau’s activity, to which neither founder nor shareholder have no connection. Furthermore, the first instance court ruling to uphold the Claimant’s claim is based on a single document – the Claimant’s instruction dated 18.12.2003 to terminate the authority of the persons comprising the Council.

However, the expert is of the opinion that this instruction is a forgery.

DECISION OF THE COURT

The Court of Arbitration of the city of Moscow by its decision, dated 31.12.2008, on the case № F40-70941/08-131-554 upheld the claim. The Ninth Arbitration Court of Appeal by its resolution dated 01.02.2011 revoked the ruling of the first instance court and dismissed the claim. The Federal Court of Arbitration of the Moscow District, by its resolution dated 18.05.2011, upheld this conclusion. The Board of the SCARF, in its session held on 13.12.2011, left the ruling of the first instance court unchanged.

EXPERTS’ COMMENTARIES

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Olga Yakimova, Lawyer at the Firm, Doctor at Law (Moscow)

The issue of jurisdiction of courts of arbitration or common law courts is rather complicated and even more so – in the cases related to contesting internal documents of organizations. In the discussed case the Respondent is a non-commercial organization, for which the business activity is secondary, but it does not mean that the organization conducts none of it. That is why I believe there are grounds for passing the case to the jurisdiction of a court of arbitration.

Furthermore, another subject of the dispute is the issue of ruling invalid all decisions of the Bureau’s Council approved by the minutes №5 dated 15.04.2004. Since the Claimant made no statements regarding the compliance of the Council’s decisions to the legislation of Russia, the courts should have taken the decisions on the case within the framework of the declared claims. The issue of compliance should be decided in a separate trial.

For more details see here.