Could Goldman Sachs have avoided the seizure of its Russian assets
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One of the main reasons for the arrest of the shares of Russian companies owned by Goldman Sachs (Aeroflot, Detsky Mir, Sberbank, etc.) at the request of Otkritie Bank could be the statement of an American corporation to leave the Russian market, lawyers interviewed by Kommersant believe. However, foreign defendants still have a chance to appeal against the imposition of interim measures if they can prove the unreasonableness of such a decision. The approximate value of the arrested securities exceeds 3 billion rubles, which is almost five times the amount of the claim.
As part of the claim of Otkritie Bank for the recovery of a debt in the amount of 614.7 million rubles. with Goldman Sachs Group and the Goldman Sachs III SICAV fund, the Moscow Arbitration Court took interim measures. In particular, trademarks and shares of Russian companies owned by the defendants were arrested, including:
- 37.022 million shares of the Detsky Mir chain,
- 1.2 million shares of Sberbank,
- 750 thousand shares of Aeroflot,
- 790 thousand shares of Gazprom,
- 550 thousand shares of VTB, follows from the published on August 4 definitions court.
The total market value of these securities as of August 7 is about 3.1 billion rubles.
“Opening” stated in court that Goldman Sachs Group refused to fulfill its obligations under the International Swaps and Derivatives Association (ISDA) agreement, citing US and UK sanctions against the bank.
In “Children’s World” told Kommersant that the court decision will not affect ongoing business processes, namely transformation networks from PJSC to a private company. Aeroflot and Sberbank do not comment on the situation.
“Despite the “exotic” composition of the defendants, including the structures of Goldman Sachs, from a legal point of view, the dispute is ordinary,” says Forward Legal lawyer Ilya Ryzhakov, adding that in debt collection disputes, plaintiffs often ask the court to take interim measures in the form seizure of the defendant’s assets. At the same time, according to him, the reasons why the Goldman Sachs structures refused to pay the Otkritie bank “do not have legal significance for making a decision to seize their property.”
When resolving the issue of seizing the defendant’s assets, “the court is looking at the possibility of the enforceability of a future decision,” explains Orchards partner Alexei Stankevich and emphasizes:
“The important thing here is not that the defendant is a foreign company that defaulted due to sanctions, but that Goldman Sachs has generally stopped investing in the Russian market, and is also making attempts to withdraw assets from the country.”
Dmitry Kletochkin, partner at the law firm Rustam Kurmaev & Partners, also believes that the defendant’s behavior and “taking actions indicating his intention to stop his activities in Russia” played a serious role in the court’s decision to seize the property. After the company leaves the Russian Federation, it will not have assets in the country, which will make it difficult to enforce the decision if the Otkritie claim for debt recovery is satisfied, the lawyer clarifies.
In this regard, Mr. Stankevich believes that it is impossible to combine all cases of seizure of property of foreign defendants in the claims of Russian persons into one group: “A lot here depends on the actions of debtors, which may differ.” At the same time, the statistics on the imposition of interim measures also differ: in some regions, courts take such measures more often, in others – less often. The Moscow Arbitration Court, in principle, rarely agrees to take interim measures, Dmitry Kletochkin clarifies.
It cannot yet be said that the arrests of Russian assets of foreign companies have become widespread, even “despite the fact that in 2022–2023 the number of disputes caused by default due to sanctions increased many times over,” notes Mr. Ryzhakov. According to him, the plaintiffs themselves do not always ask for the seizure of assets if they know that the defendant has enough property to pay off the debt. Mr. Kletochkin also believes that “it is still impossible to talk about the systematic nature of interim measures taken by the courts, since the practice is only being formed.”
At the same time, Aleksey Stankevich explains, the seizure of the assets of a company from an unfriendly country “does not in itself indicate its political nature or bias of the court.” He notes that “decisions with obvious political overtones, which became resonant, were canceled in higher instances,” and foreign defendants have all the procedural possibilities to appeal against the ruling on the arrest of assets if there are arguments indicating its illegality or groundlessness.
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