Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

3 March 2022

Every project is unique. This oft-abused phrase found full confirmation during the IPO of Jastrzębska Spółka Węglowa. During the seemingly standard IPO, it quickly became clear that it was not the equity story or corporate issues that would be the biggest challenge.

The real problem turned out to be a so-called social issue. Our Law Firm, acting as legal advisor to the management board of JSW, developed a unique incentive package for their employees. As part of the privatisation package, a program was prepared to provide JSW shares free of charge to employees not eligible under the Act on Commercialisation and Privatisation. Granting compensation benefits to ineligible employees was a unique solution compared to previous privatisations. It constituted a significant incentive element for the 60% of JSW's staff who had no statutory right to gratuitous shares. The employees who were not entitled by law were at the same time those who would potentially work the longest in the company after receiving free shares.

However, before JSW's privatisation was approved by the trade unions, the company was facing stormy negotiations. At one point, the trade unions threatened to organise a strike, which would destroy the chances of a successful IPO of the coal giant.

Romanowski i Wspólnicy Law Firm developed an innovative defence plan. It consisted in applying civil law instruments to the area traditionally classified as collective employment law.

JSW and its subsidiary in charge of railroad infrastructure (the strike was to consist in blocking train tracks to JSW's plants) applied for security for the action under Article 439 of the Civil Code. This provision is preventive in nature. It makes it possible to demand that a person whose conduct threatens to cause damage (here: trade union leaders and organisations) to another person (here: JSW) take appropriate measures to prevent such damage (here: not to organise an illegal strike). The court may secure such action under general principles if it finds that the claim is plausible, i.e. in simpler terms: there is a high probability that the industrial action will be illegal.

The court granted security, thanks to which the threat of a strike was averted and the conditions for reaching an agreement were created. The agreement in turn unlocked the possibility of a successful IPO of Europe's largest coking coal producer.

The innovative approach of Romanowski i Wspólnicy once again proved that every legal problem should be approached holistically, requiring broad, interdisciplinary knowledge. For example, solving a case from the scope of collective employment law may require using measures from the general part of contract law and civil procedure.

The measures applied by the Law Firm made employers aware that they are not defenceless in the event of a strike threat. This solution was later used many times – and with success – in the practice of other businesses.

3 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

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The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

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Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

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Withdrawal from shopping centre contracts in the face of partial inability to perform.

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The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

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Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

It is becoming more and more recognised that the annulment (invalidation, as som...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The problem of settling the costs of using capital in the case of the annulment (invalidation) of Swiss franc credit facility agreements.

4 March 2022

It is becoming more and more recognised that the annulment (invalidation, as some would say) of a Swiss franc credit facilities agreement is only the beginning, not the end, of the problems with such a credit facility.

When a court rules that a credit agreement has been annulled, banks claim compensation for the unjust use of capital by the (now former) borrower.

This view was first presented in more detail by Prof. Michał Romanowski in 2016 at a conference of the Faculty of Law and Administration at the University of Warsaw

Since a credit agreement is a contract for consideration, it is beyond doubt that the parties' consensual intention, and the purpose of the agreement, was to make someone else's capital available for use for remuneration, and therefore the retroactive annulment of the agreement requires a settlement of the capital received and the borrower's profit from the use of someone else's capital made available to the borrower. The use of someone else's money should not be treated differently from, for example, the use of someone else's home. It has an objective – and quite easily calculable – value.

Recognition of this issue is of fundamental importance to the assessment of the consequences of borrowers' claims. Remuneration for non-contractual use of capital is a tool that makes it possible to balance the interests of the bank and the borrower in a fair way. Naturally, the detailed mechanism of settlement will depend on the particular case.

The above issue has been recognised in case law. It has become so important that the First President of the Supreme Court formulated a legal question in this regard to the full composition of the Civil Chamber. Many commentators believe that of the six questions concerning Swiss franc credit facilities, the question concerning the possibility of demanding remuneration for non-contractual use of the capital is the most important.

4 March 2022

Might interest you

The statutory vote dispersal mechanism

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Ru...

Read >

Securing an action under Article 439 of the Civil Code as a tool to block an illegal strike

Every project is unique. This oft-abused phrase found full confirmation during t...

Read >

Withdrawal from shopping centre contracts in the face of partial inability to perform.

# Real Estate

The COVID-19 pandemic has brought dramatic changes to all industries. One of the...

Read >

The capital group code as a basic tool for the effective and safe management of a capital group as a single economic entity.

# Corporate governance   # Financial market

The concept of the statutory management mechanism (known as the Group Code) is a...

Read >
all
Get in touch
with us...

Romanowski i Wspólnicy sp. k.
Centrum Jasna
Jasna 14/16A
00-041  Warsaw

The statutory vote dispersal mechanism

4 March 2022

In 2009, there was an attempt to take over the Hungarian oil company MOL by a Russian entity. Immediately, concern arose in Poland that a similar scenario was threatening Poland's flagship oil company, PKN Orlen.

At that time, the State Treasury held (and still holds) a stake of less than 30% shares in Orlen. This did not eliminate the risk that another shareholder might emerge in the company who might acquire more shares than held by the State Treasury.

The State Treasury therefore faced a dilemma as to how to secure its control over Orlen. Due to the limitations arising from EU law concerning the so-called "golden share", the State Treasury could not use legislative or administrative instruments. The solution had to be sought in corporate law.

Prof. Michał Romanowski developed a solution that became a permanent part of the standards of corporate policy of the State Treasury. The so-called statutory vote dispersal mechanism was introduced in Orlen. In simple terms, it consists in the introduction of a so-called voting cap (i.e. a statutory limitation on the exercise of voting rights over a certain threshold of votes, irrespective of the number of shares held) with the simultaneous exclusion from this limitation of those shareholders who hold a larger number of shares as at the day of adopting a resolution. In this way the State Treasury obtained a guarantee that no new shareholder would obtain more votes on its own (or by acting in concert). This mechanism was not questioned by the European Commission, as was the case in many other Member States.

This solution quickly became a standard in subsequent privatisations of the largest state-owned companies and was implemented in entities such as Tauron, GPW, Energa, PGE, PZU, PKO BP, Grupa Azoty or Lotos, as well as in many private companies.

An interesting example of the use of statutory vote dispersal was the (otherwise unsuccessful) 2015 attempt to defend investment funds against the acquisition of Bogdanka by the Poznan-based Enea. After Enea announced a PLN 1.5 billion tender offer for 66% of Bogdanka's shares, Bogdanka's supervisory board, controlled by open-ended investment funds, initiated an attempt to amend the articles of association to introduce a voting cap for new shareholders (implicitly: for Enea). The assumption was that after the tender offer was announced, Enea – not being able to withdraw from the tender offer – would offer a better price to the funds in exchange for not introducing the voting cap.

Romanowski i Wspólnicy, advising Enea on this project, successfully neutralised the funds' move by suspending the antitrust proceedings. In this way, Enea obtained an option to withdraw from the tender offer, and the funds, deprived of an instrument to put pressure on Enea, abandoned their attempt to amend the articles of association and accepted the price offered.

4 March 2022

Might interest you

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