August 23, 2017 The Ninth Arbitration Court of Appeal will consider a case that may have an impact on the entire banking system of Russia. This is a lawsuit filed by Transneft against Sberbank, in which it demands that the transaction be recognized as a currency option between companies invalid and that it return 66 billion rubles. The court of first instance has already ruled in favor of Transneft, and its approval by the appellate instance could have serious consequences for the country's financial sector, experts fear.
It's about $ 200 billion. It is for this amount that participants in the market for derivative financial instruments enter into transactions in the Russian jurisdiction. If the claim of Transneft is satisfied, their further expediency will become highly controversial. A precedent can provoke losses for all market participants. The professional community, supported, in particular, by the Central Bank, believes that "the emerging judicial practice creates unacceptable legal risks," Novaya Gazeta writes,.
From the judge's decision in case No. А40-3903 / 2017, it follows that Sberbank, which better than Transneft understands derivative financial instruments, proposed the latter contract, under the terms of which it virtually guaranteed itself the receipt of several billion rubles.
It turns out that Sberbank, using the ignorance of "Transneft", doomed the latter to large losses. The bank itself was allegedly almost 100% sure of the profitability of this business for itself. However, if you delve into the essence of the transaction, it becomes clear that this is actually a simple bet. At stake were two billion dollars at a fixed rate of 32.52 rubles. One side - Transneft - believed that the US currency would not take a mark of 45 rubles, the second held the opposite opinion. The case was in late 2013, when the dollar was given 32 rubles, and the likelihood of its sharp rise in price seemed minimal. On this, and decided to play "Transneft". The profit on the transaction was to go to reduce the cost of debt servicing to bondholders. For Sberbank, this kind of operation is a part of the profile activity, on which he expected to earn.
Turning to the court, Transneft referred to the dishonesty of the defendant's actions, which "manifested itself in the proposal and imposition of the plaintiff in the guise of a subsidy unprofitable for the plaintiff, a high-risk, speculative transaction that does not meet the declared goal of reducing the cost of servicing bonds". At the same time, it was stressed that "Transneft" could not properly assess the risks "because of its lack of experience and expertise in the field of concluding transactions with complex derivatives".
This position of Transneft's representative was upheld by the Arbitration Court. However, the management of the company that approved the transaction did not necessarily have to understand all the intricacies of the proposed financial instruments, it was enough to understand that it was about taking on the currency risk. Moreover, the parties signed a risk declaration, in which Sberbank directly warned that if the dollar rises above 45 rubles, Transneft will incur substantial, "potentially unlimited" losses. To understand the essence of such a warning, you do not need to have any special knowledge or have a specialized economic education.
The assumption that Sberbank could have known about the future growth of the dollar exchange rate above 45 rubles and intentionally pushed Transneft to an unfavorable deal for it is broken up about data from the correspondence of the parties. It follows from this that the probability of a scenario unfavorable for the plaintiff of the development of events is estimated as "low". Moreover, such an assessment was given by experts. However, the plaintiff in his claim relies on the opinion of only one analyst, Yaroslav Mirkin, who in 2017 concluded that at the time of the deal, the growth of the dollar rate above 45 rubles was very likely. The opinion of this expert was reflected in the court's decision.
It is curious that Transneft started litigation only in the fall of 2016, when it's been more than a year since the money was paid off.
From a legal point of view, this means that the company missed the expiration of the statute of limitations for disputable transactions, and she had to prove that the deal with Sberbank was void. To this end, the lawyers of the plaintiff appealed to the fact that the defendant had violated the law grossly and deliberately, using the ignorance of Transneft, having received at its expense superprofit. In general, after losing the bet, the company intends to return lost through the court. And the intermediate finish in the form of the court of first instance was behind her.