Whilst speaking about the seizure of the shares of Rustavi 2, the Foreign Relations Secretary of the United National Movement, Giga Bokeria, stated: "We have seen the completely illegal and coordinated actions of two branches – the representative of the court system and the Public Register of the Ministry of Justice of Georgia, which have been orchestrated by Bidzina Ivanishvili himself. In order to buy some time, the Public Register discovered a technical error and stopped the registration of a share purchase agreement. In the meantime, the court made an illegal decision which rendered it impossible for the Public Register to finalise the transaction."FactCheck took once again interest in the events unfolding around Rustavi 2 and verified the accuracy of Giga Bokeria’s statement (see our previous article
about this issue).
On 4 August 2015, Kibar Khalvashi addressed the court in order to get his share of Rustavi 2 back which, according to his statement, he was forced to concede in December 2006.
In order to uphold the complaint, on 5 August 2015 the court ruled in favour of the seizure of Rustavi 2’s premises. Certain authorities were taken away from Rustavi 2 and its partners until the finalisation of the court case. These restrictions included selling movable property on the balance of the company and thereby loading it with financial obligations, taking obligations on behalf of the company, approving its annual results, making amendments to the company’s charter and so on.
According to the statement of the Director General of Rustavi 2, Nika Gvaramia, Rustavi 2 found itself in a severe financial condition due to the ruling of the court. It became necessary to attract additional funding in order to maintain the company’s proper functioning. For this purpose, the owner of a 51% share of Rustavi 2, Sakartvelo TV, decided to sell its share. According to the agreement, the buyer of the share, businessman Dimitri Chikovani, took the obligation to make an investment of several million in Rustavi 2’s capital.
At 17:53 pm on 29 September 2015, Dimitri Chikovani’s lawyer addressed the Public Register, asking for an expedited registration (before midnight) of the changes following the share purchase agreement. The Public Register deemed Mr Chikovani’s documentation to be flawed and stopped its registration at 23:54 pm on the same day. According to its decision, the purchase of the shares of Sakartvelo TV by Dimitri Chikovani’s lawyer exceeded the authority given to him by Mr Chikovani. Namely, according to the power of attorney (POA), he was authorised to buy shares of any size, which are the shares owned by Sakartvelo TV (this might mean the shares Sakartvelo TV had in other enterprises), but he is not authorised to buy every share owned by this company.
Additional documentation was presented the following day at 15:45 pm with the following words added to the power of attorney: "The trustee is authorised to take any necessary step on behalf of Dimitri Chikovani in terms of acquiring shares of any size (including 100%) of Sakartvelo TV." Despite the clarification, the Public Register concluded that the reason for stopping the registration process had not been eradicated. It should be noted that in such cases the Public Register is not obligated to provide an explanation as for the reasons for a registration process not being continued based upon the presentation of supporting documentation. However, given the importance of the case, on 1 October 2015, the Public Register made a public statement on its official website, explaining that the trustee was authorised to acquire the shares in Sakartvelo TV and not the shares it owned.
Despite the fact that the word indicating the 'possession' of the shares had not been amended, the new POA still outlined that the trustee was authorised to buy a 100% share of Sakartvelo TV. It should also be pointed out that the documentation presented to the Public Register included the minutes of the meeting according to which the shareholders made their decision to sell Dimitri Chikovani a 100% share of Sakartvelo TV. It seems that the Public Register did not find the issue of which share was being sold particularly confusing in this specific case. Hence, it would be interesting to know why the text of the POA was vague for the Register even though it was identical to the minutes of the meeting.
On 30 September 2015, Kibar Khalvashi’s lawyer, Paata Salia, addressed the court asking for a seizure of the shares of Sakartvelo TV. His request was partly granted. After about three hours (at 17:39 pm), it became possible to start the registration of the seizure of Sakartvelo TV’s shares upon the basis of the court’s decision.
The mobilisation of the both the court and the Public Register should definitely be noted as the judge who was assigned to the case had four other cases to consider at 15:00 pm. However, as the judge later explained he only needed several minutes for each of the four cases and Sakartvelo TV’s case was not a difficult one for him as he knew its circumstances quite well. It should also be noted that the Public Register finished the registration of the seizure at 21:39 pm on 30 September 2015 even though it had three days to complete the task and the interests of the claimant were not being threatened. According to the Law on the Public Register, if a registration of any type of decision, which contradicts the decision on seizure, is requested during the period of the registration of the seizure, the former is stopped before the finalisation of the registration of the seizure. Hence, the fact raising some doubts is the "good will" or a special interest of the registrar who remained at work until late at night in order to finish a job for which there were two additional days of time.
According to Giga Bokeria’s statement, apart from the fact that there was a clear interest in an acceleration of the case’s resolution, the court’s decision was completely illegal. The court ruled that in the first place it is necessary to ban Sakartvelo TV partners from changing the organisational-legal form of the company, changing the name and taking other actions as, in the case if the complaint of the claimant is granted, these activities might obstruct the implementation of the court’s decision. Namely, the claimant might have to perform additional procedural activities including the recognition of the party as a successor. It should be noted that any such change that is recorded in the Public Register is public and available to anyone and so determining the successor is possible by examining the extract from the Public Register. Consequently, it not very clear about which procedural difficulties the court is speaking in its decision.
In addition, the court considered it wise to grant a part of the request for seizing the shares of Sakartvelo TV partners in order to uphold the complaint of the claimant. According to the judge’s explanation, the claimant upgraded his complaint by asking for a refund for the damage which, if granted, might be grounds for subjecting the shares of the partners in Sakartvelo TV to enforcement.
Rustavi 2 is a limited company (Ltd) which means that the company’s financial obligations are limited to its property and its members are only responsible for the obligations taken by the company according to the extent of their shares in its capital. This is exactly why a limited company is the most attractive and most common legal-organisational form. In cases where it is possible to seize the shares of the partner who is outside of the company, due to a legal dispute against a specific company, the essence of the limited company is lost which will cause investors to be under an increased risk of losing interest which, in its turn, will negatively affect the country’s economy. Consequently, as no legal link is present in the court’s decision which would provide for the seizure of Sakartvelo TV’s shares, the legality of this decision might be questioned as it might be trying to implement a practice which is generally harmful for the country.
It should also be noted that the court appeals to the rights and interest of only one party of the dispute which, as is evident from the court’s decision, are superior to the interests of those people who will be affected by the property seizure. The decision does not offer an appropriate explanation as to the use of a preventive measure in the given case by denying Sakartvelo TV and its partners their constitutional rights. In addition, according to the law, if a court believes that the defendant party might be harmed in the process of upholding the complaint, the judge is authorised by his own initiative to order the claimant to cover the expected damage to the opposite party. In the given case, however, the judge did not use such an initiative.
Given the specific nature of the Public Register and the special interest of the opposing party in the case, it should not be very surprising that the information about selling the shares became known to the interested party and was followed by its immediate reaction. The fast response of the court can also not be considered to have been driven by an order of an outside party and serving the interests of the claimant. However, stopping the registration process by the Public Register due to a technical error of the aforementioned nature found in the POA of the lawyer and still not continuing the process after the presentation of a revised POA which made it possible for registration of the seizure to start clearly indicate the active role of the Public Register in this case.
Numerous questions arise in this case which also call into question the partiality of state structures. As for the court’s decision, it is vague and the main issue of the advisability of using preventive measures is not present. The greatest doubt raised by this court’s decision is its legality which should be considered by a court of higher instance.FactCheck will continue monitoring this case; however, at this stage we conclude that Giga Bokeria’s statement is TRUE.