Investment partnership agreement under Russian Law
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An investment partnership is a legal form of association of investors with the purpose of consolidating financial resources for medium-term and long-term investments in investment assets and sharing risks associated with investment activities. An investment partnership (hereinafter referred to as the “IP”) is not a legal entity, it is an association of two or more investors on the contractual basis (investment partnership agreement, hereinafter also referred to as the “IPA”), which is regulated by a special law – the Federal Law No. 335-ФЗ dated 28.11.2011 “On the Investment Partnership” (hereinafter referred to as the “Law”). An investment partnership is a flexible form of investment organization; this method of pooling capital allows investors to agree on how decisions will be made in regard to each specific investment; what amount of money will be invested both in the investment itself and in managing such investment; in which cases investors will be entitled to leave the partnership; what are the obligations and responsibilities of the managing partner, etc. Such flexibility sets an investment partnership apart from such forms of organizing joint investment activities as creation of a business company or mutual fund. Regarding the last two entities, issues of management, making contributions, responsibility of the “manager” are regulated by the law, and not by an agreement of the parties.
Moreover, it should be noted that the contractual nature of an investment partnership gives this form of investment activities a very important advantage – absence of double taxation. Tax collection occurs only at the level of investors and does not occur at the level of investment partnership itself. At the same time, “project companies” (limited liability companies or joint-stock companies created for the purpose of implementing an investment project) are considered independent taxpayers regarding income tax. Part of the profit remaining after taxation may be distributed among participants (shareholders) of the project company, and participants (shareholders) will have to pay income tax on the amount received as a result of such distribution. As a result, there exist two levels of taxation on profits earned from investing activities.
An investment partnership can be described in a few words as follows: An investment partnership agreement (which is subject to notarial certification) is concluded between two or more persons. The parties to this agreement have a different status, which entails their different rights and obligations. Limited partners undertake only to make contributions to the common property of partners for the purpose of making investments in all types of assets agreed upon by all parties, and have the right to receive only part of the profit from such investments (as a rule, in proportion to their share in the common property of partners). They are not entitled to participate in managing the business of an investment partnership. Only the managing partner is entitled and obliged to search for assets suitable for investment (that correspond to the investment declaration approved by all partners), organize investment and management activities (there may be several managing partners, and then there should be a clear delineation of their areas of responsibility indicated in the IPA, but, as a rule, an investment partnership, however, has one managing partner).
In addition, the managing partner shall be responsible for administrative and financial management of the IP (accounting, legal and other support for investment activities). The managing partner, like the contributing partners, contributes to the common property of the IP (and has the dual status of a contributing partner and a managing partner at the same time, accordingly), but generally his contribution is insignificant (1-2% of the total volume of IP contributions). Apart from the right to receive a part of the profit from investment activities, which is proportional to his share in the common property of the partners, the managing partner is entitled to remuneration for managing the partners’ joint affairs (the size and frequency of such payment shall be determined by the terms of the IPA) and sometimes, to success fee – in cases when the IP ROI exceeded the expected (target) level of return established by the agreement. Regarding general contractual obligations related to the investment activities of the partnership, each investing partner bear the proportional liability within the value of his share in the common property of the partners and shall not be liable to the full extent of his assets. If the cost of the partners’ common property is insufficient to satisfy the creditors’ claims on the general contractual obligations related to implementation of joint investment activities of the partners, the managing partner bears subsidiary liability with all his assets. If there exist several managing partners, they will jointly and severally bear subsidiary liability for common contractual obligations related to joint investment activities carried out by the partners in case of insufficient value of the partners’ common property to satisfy the creditors’ claims.
Let us have a more detailed approach on each of the issues that are essential for organization of an investment partnership and conclusion of an investment partnership agreement.
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