Maltese companies hit with €40 million claim from former subsidiary of sanctioned Russian bank

Two Maltese companies have been served with a €40 million garnishee order, filed on behalf of a Russian company. 

The issue concerns a complex international power struggle over the control of the Fortenova Group that has now spilled over into the Maltese jurisdiction. 

Fortenova is one of Croatia's largest producers and retailers of food products. 

The claim is connected with an ongoing conflict between a number of depository receipt (DR) holders in Fortenova and the group’s current controlling shareholder, Malta-registered Open Pass Limited. A number of DR holders had vigorously objected to an announced restructuring of Fortenova, which they described as an illegal attempt by Open Pass to obtain Fortenova’s assets.  

On 29 December, 2022, a Dutch court had formally rejected an appeal filed by Russian bank, Sberbank, and Saif Alketbi, an investor from the UAE, against a decision to prevent them from participating in the Fortenova assembly, due to international sanctions imposed on Sberbank in April 2022. That decision effectively resulted in the expulsion of the largest single shareholder in Fortenova - Alketbi held a 43% stake in the group, but now does not have the right to vote, nor can he participate in the work of the assembly of holders of co-ownership rights in Fortenova. 

Alketbi claims to have purchased SBK ART LLC from the sanctions-hit Sberbank for €400 million in October 2022. However, Fortenova is challenging the legitimacy of that transaction, as at the time SBK ART had already been placed on the European Union Council’s list of sanctioned entities.   

On 21 July 2022, the EU released its seventh package of sanctions in response to Russia's February 2022 invasion of Ukraine. SBK ART does not feature on this list, but Sberbank, of which it SBK Art used to be a subsidiary until it was sold in its entirety to Alketbi on 31 October 2022, after which date SBK Art ceased to be a subsidiary of Sberbank.

Fortenova says that when Sberbank’s planned divestment of Russian ownership was not completed within the deadline set by the sanction measures, the bank had unilaterally divested itself of its ownership share, without the knowledge of the company and other co-owners. The purported acquisition of SBK ART, however, appears to be an attempt to breach the sanctions regime in force in the European Union and the UK.  

According to an updated list issued by the Council of the European Union in December 2022, SBK ART LLC had been established as a subsidiary of Sberbank for the purpose of holding Sberbank’s interests in the Fortenova group. “Sberbank retains effective control over SBK ART LLC notwithstanding the purported transfer of its shares to a businessman in the United Arab Emirates.”  Around the same time, Croatia’s Foreign and European Affairs Ministry State Secretary Frano Matusic had told journalists last December that “all our evidence indicates that it is a fictitious transaction, no money was paid from the United Arab Emirates to Moscow or to the accounts." 

Later that month, a Dutch court had ruled that SBK could not exercise its voting rights while under sanctions. 

Legal tussle comes to Malta 

The dispute was extended to Malta in August this year, when a representative of SBK ART LLC filed a court case and a €40,000,000 garnishee order against companies and officers of the Fortenova group. 

In the sworn application to the First Hall of the Civil Court, Russian citizen Mikhail Mokhovikov, in his capacity as special mandatary for Russian-registered SBK ART LLC, accused Malta-registered companies Open Pass Limited and Gain Alliance Limited, as well as Fortenova Group STAK Stichting - a foundation registered in the Netherlands - and its de facto Croatian director Fabris Perusko, together with Vladimir Tunjic - a Malta resident and the sole director of Open Pass, Croatian citizens Damir Spudic- the director and a shareholder of Gain Alliance Limited, Pavao Vujnovac- the majority shareholder of Gain Alliance Limited and shareholder Josip Jurcevic, of abusing their position, “in an effort to force such corporate changes and seize control over Fortenova STAK.” 

The first sitting in the case is scheduled to take place next month.  

Lawyers John Refalo and Gabrielle Scicluna are representing Mokhovikov and SBK ART.