A multi-jurisdictional insolvency that Raedas has been working on since 2020 has led to a landmark ruling on the interpretation of “control” under the 2019 Russia Regulations regarding sanctions.
Until the Supreme Court rules on the issue and deals with the judicial inconsistencies in Mints and Litasco, this ruling will be the yardstick, also because Thompsell J found that guidance provided by OFSI/FCDO in late 2023 aligned with his line of argument.
In context of the bankruptcy of Russian banker Anatoly Motylev, the Trustees sought guidance from the court as to the interpretation of Regulation 7 of the 2019 Regulations, particularly the vague wording of Regulation 7(4) which deals with the hypothetical exercise of control.
The Trustees were concerned that a group of Russian banks, which Motylev formerly owned and controlled, may qualify as sanctioned parties.
While Thompsell J did not rule on the status of the Russian banks, he introduced and expanded on the evidence necessary to establish four types of control:
1) De jure control, evidenced by statutory and constitutional provisions of a company;
2) Actual present de facto control, evidenced by past examples where the putative controlled has exercised decisive influence to control what is happening at an organisation;
3) Potential future de jure control, evidenced by the existence of agreements to acquire a majority stake in an organisation; and
4) Potential future de facto control which, Thompsell J ruled, will be a rare occurrence and difficult to evidence.
Thompsell J’s arguments, particularly his example scenarios for potential future de facto control, are sensible, practical and highlight the “absurdity” of the wording of Regulation 7(4) and subsequent judicial interpretations. For instance, Thompsell J noted that “it would be absurd to say that any billionaire should be regarded as having control of every company that the billionaire could clearly afford to purchase”. He further stated that the billionaire who is providing a purchase bid above the company’s share price would still be reliant on other peoples’ decisions, including the acceptance of the offer by the shareholders.
However, this example is of limited applicability in the Russian context where informal practices are prevalent and the proverbial handkerchief contract is not uncommon in business. (Hostile) takeovers of Russian companies are rarely as civilised as Thompsell J outlined. They often involve a degree of coercion that overrides any hypothetical shareholder opposition. More often than not, the takeover price is lower than the fair market value of the company.
In this instance, Thompsell J was to rule on the control of a public body (the DIA) by two designated public officials. Based on evidence provided to him, he states that the DIA and by extension the Russian banks were not sanctioned. But further evidence on Russian law and governmental practice was required to make an official declaration