How to Invalidate Deals with Affiliates
Expert guide on voiding affiliate transactions under corporate law.
Along with the owners (shareholders), each business company has affiliates who can potentially influence the conduct of business or whose business is influenced by the company itself. Affiliates are often interested in the company’s transactions. Such transactions are concluded in a special order. When this procedure is not fulfilled, transactions may be invalidated. Our lawyers will evaluate the client’s transactions according to the criterion of interest of affiliated persons and prepare documents for the transaction. If the transaction is disputed in court, we are ready to represent the interests of the client. More than 10 years of experience in judicial representation allows us to do this.
What are the features of making a decision on concluding transactions with the interest of affiliated persons
1. Decision-making by the general meeting of participants
The decision on making a transaction with the interest of an affiliated person is made by the company’s management body. This is usually a general meeting of the participants (shareholders) of the company. Another management body of the company may be prescribed in the company’s charter, which decides on a transaction with the interest of affiliated persons. The General Meeting of Participants (shareholders) makes a decision by a majority vote of the participants who are not interested in the transaction.
Making a decision on transactions with the interest of affiliated persons
2. Decision-making by the Board of Directors (Supervisory Board)
When a company has a board of directors (supervisory board), it decides on an interested party transaction when:
– This is stated in the company’s articles of association.
– The transaction price is not higher than 2% of the value of the company’s assets for the last reporting period before the transaction. A higher percentage may be prescribed in the charter.
The decision on the transaction is made by a majority vote of all members of the Board of Directors (Supervisory Board) who are not interested in making the transaction — independent directors. When the number of independent directors is insufficient to make a decision, the decision is made by the general meeting of the company’s participants.
Making a decision on transactions with the interest of affiliated persons
3. Decision-making by the Director
The decision on a transaction involving the interests of affiliated persons is made by the director or the management board of the company when:
– All affiliated persons are the owners of the company and are interested in the transaction.
– The company buys its own shares by its own decision or repurchases shares at the request of shareholders. In these cases, transactions are concluded in the usual way for the company to conclude transactions that have been concluded three or more times in the last year.
Features of invalidation of transactions with the interest of affiliated persons
When a company does not comply with the procedure for making a transaction with the interest of an affiliated person, such a transaction can be declared invalid in court. This does not mean that the court will automatically invalidate it. A person who decides to go to court must prove that the transaction violated their rights and caused losses to the company, its owners, and the claimant personally.
When a trans- action involving interests of affiliated persons is not recognized as invalid
Even when the company has not fulfilled the requirements for making a transaction with the interest of affiliated persons, it will not be invalidated when:
– The voting of the company’s owners, members of the Board of Directors, who were notified of the general meeting and who demand that the transaction be declared invalid, could not affect the results of voting on the transaction.
– The transaction did not cause losses to the company or the owners of the company who went to court and there are no other adverse consequences.
– Before the case is considered in court, the decision on the transaction is executed in accordance with the procedure defined for making transactions with the interest of affiliated persons. The relevant documents must be sent to the court.
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Who Qualifies as an Affiliated Party in a Business Entity
Company Executives and Board Members
Members of the board of directors (or supervisory board) and executives of the company are considered affiliated parties due to their direct involvement in decision-making.
Entities in the Same Holding
Legal entities that are part of the same holding structure as the company qualify as affiliated parties because of shared ownership or control.
Individuals with 20%+ Ownership (Self or Relatives)
Individuals who, alone or together with close relatives (such as spouses, parents, children, grandchildren, siblings, and in-laws), own or control 20% or more of the company’s shares or charter capital are considered affiliated.
External Entities with 20%+ Ownership or Influence
Legal entities that own or control 20% or more of the company’s shares or have the contractual right to influence company decisions fall under the affiliated party category.
Entities Controlled by the Company (20%+ or by Contract)
Legal entities in which the company itself holds 20% or more of the capital or has decision-making influence under a contract are also classified as affiliated parties.
Unitary Enterprises Created by the Company
Unitary enterprises established by the company are affiliated because they are wholly dependent on the founding company.
Executives of Affiliated Legal Entities
Members of collective management bodies or executives of a legal entity affiliated with the company are also treated as affiliated parties due to their indirect influence.
Importantly, the Republic of Belarus, its territorial units, the National Bank, government ministries, and local authorities cannot be considered affiliated parties.
Each business entity is responsible for defining its affiliated parties, maintaining a registry, and notifying them in writing.
Affiliated parties are considered interested in the following situations:
Direct Participation or Representation
Are a party to the transaction or represent the interests of third parties in dealings with the company.
20%+ Ownership in Related Entity
Individually or jointly own 20% or more of the shares or charter capital of the legal entity involved in the transaction or representing third-party interests.
Ownership of Related Entity’s Assets
Own the assets of the legal entity that is part of the transaction or acts on behalf of third parties in relation to the company.
Management Role in Related Entity
Hold positions in the management or governing bodies of the legal entity involved in the transaction or representing third-party interests.
Other Charter-Defined Situations
Fall under other situations defined in the company’s charter.
Who Is Required to Disclose Information About Affiliated Parties?
Maintaining and updating a list of affiliated parties is mandatory for both open and closed joint-stock companies (JSCs) under clauses 3 and 8 of Instruction No. 43. This requirement is linked to the fact that JSCs regularly submit periodic reports, including a dedicated form titled “Information About Affiliated Parties” (clause 6 of Instruction No. 43).
As for limited liability companies (LLCs) and additional liability companies (ALCs), keeping such a list is not strictly mandatory but becomes highly relevant in certain situations:
– Internal Rules or Disputed Director Actions
When the company’s participants adopt internal rules requiring compliance with affiliate disclosure laws or when they challenge transactions made by the director without prior approval from the general meeting.
– Seeking Bank or Financial Institution Funding
When the company seeks funding from banks or financial institutions, whether domestic or foreign.
Who Is Required to Disclose Information About Affiliated Parties?
– Involvement of Active Investors
When investors are part of the ownership structure and actively monitor financial decisions and transactions.
– Working with International Corporations
When the company serves as a supplier, contractor, or service provider for international corporations.
In such cases, maintaining an updated list of affiliated parties is a practical necessity to ensure legal compliance and transparency.
How to Execute a Transaction Involving Affiliated Interest
When affiliates are interested in a deal
An affiliated person is interested in making a transaction when he is one of the parties to the transaction or represents the interests of third parties in relations with the company.
There are some other cases where affiliates are interested in a deal:
– When they own 20% or more of the shares of the company, the parties to the transaction or a representative of third parties in relation to the company.
– When they are the owners of the company’s property, the parties to the transaction or represent third parties in relations with the company.
– When they are members of the management bodies of a business partner of the company or a partner who represents the interests of third parties in relations with the company.
– When other affiliated persons are listed in the company’s articles of association or the procedure for determining them.
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