ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
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UZBEK LAW REVIEW
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ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
2020
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1
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ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
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UZBEK LAW REVIEW
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Sh.Erkabaeva,
PhD Researcher
MANAGEMENT ISSUES IN COMPANIES:
Comparative and Legal Analysis of Limited
Companies (UK and USA), Investment Companies
(Russia) and Business Companies (Uzbekistan)
Аннотация
:
ушбу
мақолада
олимларнинг
илмий
нуқтаи
-
назарлари
ҳамда
Буюк
Британия
ва
АҚШ
,
Россия
ҳамда
Ўзбекистон
Республикаси
ҳуқуқий
тартиботларининг
қиёсий
-
ҳуқуқий
таҳлили
асосида
миллий
ва
хорижий
қонунчиликда
акс
этган
ширкатлардаги
бошқарув
ҳамда
ишларни
юритиш
масалалари
чуқур
таҳлил
қилинади
.
Шунингдек
,
хозирги
миллий
қонунчиликдаги
юридик
шахслар
фаолияти
билан
боғлиқ
бошқарув
ҳамда
ишларни
юритишга
доир
долзарб
муаммолар
келтирилади
.
Шу
нуқтайи
назардан
,
хорижий
тажриба
асосида
ушбу
муаммоларни
бартараф
этиш
ва
ширкатларнинг
бошқарув
ҳамда
ишларни
юритишга
доир
масалаларини
ислоҳ
қилиш
бўйича
таклифлар
берилади
.
Калит
сўзлар
:
чекланган
ширкат
,
инвестицион
ширкат
,
хўжалик
ширкати
,
бошқарувчи
шерик
,
чекланган
шерик
,
инвестиция
фаолияти
,
шерикчилик
шартномаси
,
юридик
шахслар
,
профессионал
бошқарувчилар
.
Аннотация
:
в
данной
статье
тщательно
анализи
-
руются
вопросы
управления
в
партнерствах
,
суще
-
ствующих
в
национальном
и
зарубежном
законода
-
тельствах
на
основании
научных
работ
ученых
и
срав
-
нительно
-
правового
анализа
правовых
систем
Вели
-
кобритании
и
США
,
России
и
Республики
Узбекистан
.
Более
того
,
в
статье
приведены
актуальные
проблемы
национального
законодательства
,
касающиеся
вопро
-
сов
управления
и
ведения
дел
в
юридических
лицах
,
такие
как
отсутствие
механизма
распределения
рисков
и
профессиональных
инвесторов
.
Также
,
в
данной
статье
изложены
предложения
по
устранения
пере
-
численных
проблем
и
совершенствованию
вопросов
управления
в
партнерствах
.
Ключевые
слова
:
ограниченное
партнерство
,
ин
-
вестиционное
товарищество
,
хозяйственное
товари
-
щество
,
управляющий
партнер
,
ограниченный
парт
-
нер
,
инвестиционная
деятельность
,
соглашение
о
партнерстве
,
юридические
лица
,
профессиональные
управляющие
.
Abstract:
this article provide a thorough investigation
of management issues in partnerships, existing in national
and foreign legislations based on the scientific views of
scientists and a comparative-legal analysis of legal sys-
tems of the United Kingdom and the USA, Russia and the
Republic of Uzbekistan. Furthermore, this article enumer-
ates the actual problems existing in national legislation
related to the management and conduct of business in
legal entities, such as the absence of risk sharing mecha-
nism and professional managers, which, subsequently,
adversely influences on the decision making of investors.
Additionally, this article provides suggestions for the elimi-
nation of the enumerated problems and the improvement
of management issues in partnerships.
Keywords:
a limited partnership, an investment part-
nership, a business partnership, a general partner, a lim-
ited partner, investment activity, a partnership agreement,
legal entities, professional managers.
Nowadays the Republic of Uzbekistan has determined
the course of enhancing the level of economic and social
development of the country by means of encouraging the
attraction of investment capital and enhancing the role of
innovations. However, as it is mentioned in the Decree of
the President of the Republic of Uzbekistan No.5583 “On
additional measures on improvement of mechanisms of
financing projects in the field of entrepreneurship and in-
novation”
dated
on
November
24,
2018
(http://lex.uz/docs/4076954), in contrast to the developed
foreign countries, in the Republic of Uzbekistan, business
activity is conducted mainly on the terms of concentration
of risks, that is to say that the same persons are engaged
in the accumulation of funds and their management. The
absence of risk sharing mechanisms and professional
managers of investment assets adversely affects the deci-
sion-making of foreign investors on the implementation of
investment projects in the Republic of Uzbekistan [1].
Taking into account the aforementioned, it is of a par-
amount importance to investigate the management issues
and conduct of business in limited partnerships, which are
widely developed in both Common law countries and Con-
tinental law countries, and investment partnerships, which
are becoming more and more popular among business
entities in Russian Federation as well as make a compara-
tive analysis with business partnerships in the Republic of
Uzbekistan, which include general (full) partnerships and
special partnerships.
Primarily, it would be appropriate to understand clearly
the essence of the abovementioned types of partnerships
with reference to foreign and national legislation.
According to Section 4 of Limited partnership Act of
1907, a limited partnership must consist of one or more
persons called general partners, who shall be liable for all
debts and obligations of the firm, and one or more persons
to be called limited partners [2 s.4].
According to the Article 2 of Federal Law of Russian
Federation “On investment partnership” of 2011, an in-
vestment partnership is a joint investment activity, which is
carried out by companions jointly based on the agreement
of investment partnership on investment of common prop-
erty of companions in the objects of investment allowed by
the Federal law and this agreement for the implementation
of investment, including innovative, projects [3 article 2].
According
to
Article
60
of
Civil
Code
(https://lex.uz/docs/111181), a general (full) partnership is
established as a legal entity by concluding an agreement
between partners, who are directly engaged in entrepre-
neurial activity on behalf of the partnership. Article 61 of
Civil Code states that a special partnership is also estab-
lished as a legal entity by concluding an agreement be-
tween partners, some of whom (full partners) are directly
engaged in entrepreneurial activity of the partnership,
while the other partners (depositors or limited partners) do
not participate in daily activity of the partnership [4 articles
60, 61].
In spite of the fact that the abovementioned types of
partnerships, existing in national legislation, have several
features constituting the essence of partnership that has
been developed in foreign countries, unfortunately, they
have not gained much popularity among population, par-
ticularly business entities and investors. In testimony
whereof, it would be appropriate to present the facts stat-
ing that as of 01.12.2018, there are only 186 business
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partnerships duly organized and acting in the Republic of
Uzbekistan, while the number of German partnerships
exceeds 260 thousand, and the number of partnerships in
the United States exceeds 7.4 million. Generally, the main
reasons of not establishing the business partnerships for
the aims of entrepreneurship are their status as a legal
entity and the formal procedures of their operation, double
taxation system as it is common for corporate structures,
the subsidiary liability of the partners and others.
Turning to the management issues and conduct of
business in partnerships, it is of great importance to notice
that foreign experience to be introduced in this article pro-
vides the risk sharing mechanisms and professional man-
agers of investment assets in the system of management
and conduct of business in partnerships.
Regarding the limited partnerships in the United King-
dom and the USA, Don Mayer, Daniel Warner, George
Siedel, and Jethro K. Lieberman their work state that in a
limited partnership both classes of partners do not gener-
ally share the control. The control of the limited partner-
ship is in the hands of the general partners, which are in
most cases are legal entities [5 p.178-181].
According to Section 406 of Uniform Limited Partner-
ship Act, general partners govern all management issues
and conduct of general affairs of the partnership. Except
as expressly provided in this act, the general partner may
exclusively decide any matter relating to the activities of
the limited partnership or, if there is more than one general
partner, by a majority of the general partners. This Section
defines that the consent of each partner is necessary to:
amend the partnership agreement; amend the certificate
of limited partnership to add or delete a statement that the
limited partnership is a limited liability limited partnership;
and sell, lease, exchange, or otherwise dispose of all, or
substantially all, of the limited partnership’s property, with
or without the good will, other than in the usual and regular
course of the limited partnership’s activities. According to
Section 302 of Uniform Limited Partnership Act, limited
partners have barely no management rights and fiduciary
duties [6 s. 406, 302].
According to Section 6 of Limited Partnership Act of
1907, a limited partner shall not take part in the manage-
ment of the partnership business, and shall not have pow-
er to bind the firm, provided that a limited partner may by
himself or his agent at any time inspect the books of the
firm and examine into the state and prospects of the part-
nership business, and may advise with the partners there-
on [7 s.6].
As for the conduct of business, Section 408 of Uniform
Limited Partnership Act determines that the only fiduciary
duties that a general partner has to the limited partnership
and the other partners are the duties of loyalty and care [8
s.408]. According to Robert D. Flannigan, the limited part-
nership legislation may grant specific powers to limited
partners. For instance, it may be provided that a limited
partner may carry out the following conduct of general
affairs: to inspect the partnership books, demand full in-
formation on all matters affecting the partnership, acquire
a formal account of partnership affairs, dissolve the part-
nership by court order, receive a share of the profits or
other income and obtain the return of his contribution [9
p.303].
According to Sarah Talpis - Guillet, a limited partner’s
participation in the limited partnership is usually con
fi
ned
to one thing: making a
fi
nancial contribution toward the
partnership’s development [10 p.118].
Having analyzed the legislative acts and authors’
points of view, it is found out that the legislation on limited
partnerships does not determine any provisions regarding
the separate governance bodies of a limited partnership
like a general meeting of partners or an executive div. A
general partner acts as a management div of the limited
partnership and takes full control over management issues
of the partnership and general conduct of common affairs.
Limited partners play a minimum role in the management
and conducting common affairs on behalf of the limited
partnership. However, it may be deduced that there are
some cases abovementioned when both general and lim-
ited partners have voting rights and participate in partner-
ship’s life. It can be stated that a general partner acts as
an executive div (agent, director) and manages daily
activity of the partnership, also a general partner can del-
egate his authority to manage daily issues to another per-
son, who will be an agent (director, executive div) of a
limited partnership. In practice, general partners are main-
ly considered as highly qualified investors with profession-
al management skills; therefore, this fact may serve as the
basis for the establishment of risk sharing mechanisms in
the limited partnerships.
Concerning the investment partnerships in Russian
Federation, according to Federal law “On investment part-
nership” of 2011, general partners take full control over
management of the investment partnership. Article 3 of
this Federal law states that general partner’s right to ac-
complish the exact fiduciary duty or the scope of the gen-
eral partner’s authority in the management of the invest-
ment partnership are indicated in this Federal law or in-
vestment partnership agreement. Article 5 of this Law
states that the general partner has the right to receive
remuneration for the conduct of the general affairs of the
partners in the amount and in the manner established by
the agreement of the investment partnership [11 articles 3,
5.].
Here it can be deduced that in an investment partner-
ship similarly as in a limited partnership a general partner
takes full control over daily conduct of affairs as well as
deals with management issues of the partnership. Moreo-
ver, similarly, in an investment partnership a general part-
ner also may delegate his authorities to other agent, who
will take control over day-to-day activities of the partner-
ship. However, in comparison with a limited partnership,
there is a separate management div, called an Invest-
ment committee, which is formed by the partners and enti-
tled to decide on issues, provided in the legislation or in-
vestment partnership agreement.
As for the business partnerships in the Republic of Uz-
bekistan, according to Article 18 of the Law of the Repub-
lic of Uzbekistan “On business partnerships” of 2001
(https://lex.uz/docs/2457),
the supreme governing div of
the general (full) or special partnership, taking the full con-
trol over its management issues, is the general meeting of
participants. Management of the partnership is carried out
by the general agreement of all its participants, i.e. the
decision regarding management issues is taken by a ma-
jority vote of its participants. Each participant of the part-
nership, regardless of whether he is authorized to conduct
the affairs of the partnership, has the right to be acquaint-
ed with all the documentation on the conduct of affairs.
According to Article 19 of this Law, each member of the
partnership is entitled to act on behalf of the partnership,
unless the founding agreement determined that all the
participants conduct affairs jointly or the conduct of affairs
is entrusted to the individual participants (with the excep-
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tion of a special partnership: here special partners cannot
take part in conduct of affairs) [12 articles18, 19].
Having analysed the national legislation, it can be de-
duced that in a general (full) partnership and a special
partnership there two main governance bodies: executive
div and a general meeting of participants. The scope of
each div’s authorities is provided in a memorandum of
association or the Charter of the partnership. In a full part-
nership, all participants take part in general conduct of
affairs of the partnership, while in a special partnership as
in a limited or in investment partnership, only full (general)
partners are authorized to act on behalf of the partnership.
It should be noticed that conducting jointly the common
affairs by all participants of the partnership is not always
advisable, because it is not appropriate when the same
persons both establish the business entity and take control
over its activity. Therefore, maybe general (full) partner-
ships and ordinary partnerships are becoming less and
less attractive nowadays. Special partnerships, it should
be said that, are also not attractive because of the provi-
sions which give an opportunity to a general partner to
leave partnership whenever he intends to do this. This is
in turn will sufficiently decrease the confidence of limited
partners and third parties to the stable activity of the part-
nership.
Thus, we have made thorough comparative analysis of
management and conduct of affairs of a limited partner-
ship in the United Kingdom and the USA, investment part-
nership in the Russian Federation, business partnerships
in the Republic of Uzbekistan. Now, it is preferable to de-
velop suggestions regarding the order of management and
conduct of affairs, which could be introduced in the draft
law of the Republic of Uzbekistan “On partnerships”, the
adoption of which is provided in the Decree of the Presi-
dent of the Republic of Uzbekistan No.5583 “On additional
measures on improvement of mechanisms of financing
projects in the field of entrepreneurship and innovation”
dated on November 24, 2018.
Implementing the positive foreign experience dis-
cussed in previous paragraphs, it can be suggested that
general partners should take full control over management
and daily conduct of affairs. The relationship among gen-
eral and limited partners regarding management issues
and general conduct of common affairs should be deter-
mined in a partnership agreement. In cases determined in
a partnership agreement, both general and limited part-
ners may participate in management and act on behalf of
the partnership. A general partner will act on behalf of the
partnership without power of attorney. A general partner
may delegate his authorities to one of the limited partners
or another person, who will conduct general affairs of a
commercial partnership on the basis of power of attorney.
In conclusion, it should be stated that the system of
management and conduct of business, suggested in a
previous paragraph, will contribute to the establishment of
risk sharing mechanisms and availability of professional
managers of investment assets in the partnerships, which
consequently will favorably effects the decision-making of
foreign investors on the implementation of investment pro-
jects in the Republic of Uzbekistan.
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