Affiliated companies and their role in Russian legislation

The concept of "affiliated companies" was borrowed by the Russian legislator from foreign law (mainly the Anglo-Saxon system) and first appeared in documents issued in 1992. At the same time, the concept was used in a slightly different meaning than it is used abroad. According to the Federal Law 948-1, which regulates the issues of limiting monopolistic activity, affiliated persons are organizations or individuals who are capable, by their actions or will, to influence the activities of third-party commercial enterprises or individual entrepreneurs.

Thus, both dominant and dependent persons fall under the definition. Foreign interpretation of the term affiliated persons looks like: persons dependent on the will and actions of others. The Institute of Affiliated Persons met in legislative documents regulating investment activity during the period of active privatization of the nineties of the last century. Subsequently, these documents became invalid, however, the use of the term affiliated companies was widely developed in the legislation on joint-stock companies, as well as on companies with limited and additional liability.

These documents regulate a special procedure for the implementation of certain actions in order to avoid violating the interests of the owners of capital of such companies. Thus, there are restrictions on the performance of certain transactions involving affiliated parties, alienation or acquisition of shares in the authorized capital, attention is paid to the procedure for disclosing information about the composition of affiliated persons. What are the characteristics of affiliated companies and individuals? These include members of the supreme management body of the company (the Board of Directors, another collegial body), as well as the director of the company (its sole executive body); Affiliated companies are members of the same group; With a combination of the first two signs - in the case of a company entering a certain group of enterprises, members of the management bodies and directors of the remaining companies of the group will be affiliated with this person; Legal entities or individuals possessing the authority to dispose of twenty or more percent of a stake in the authorized capital of this entity, or by the same number of voting shares, are also affiliated. On the contrary - the legal entity in which the given company has a 20% stake in the authorized capital or voting shares in the same amount will be also affiliated. Special attention should be paid to such an informal element as the ability to exert influence other than administrative-corporate methods - this is the case when some affiliated companies or individuals, hiding their own participation in the structure of some person, actually perform in it volitional functions - speech About "roofing" and other pressure from the outside. Legislators in 2000 attempted to publish a separate document on affiliated persons (at the level of federal law), however, the draft was never adopted in the second reading in the State Duma.

Today the concept of an affiliated company is successfully applied when conducting state and other purchases on the basis of competitive procedures of a public nature, when the procurement documentation contains the requirements that it is inadmissible to submit bids for participation in the purchase by affiliated persons. This avoids the collusion of the participants and promotes transparency and fair competition.