ARCHIVE FOR 2020 RUSSIAN
mag->month > 0 ) { ?>
mag->getMonthString();?> mag->year;?>
mag->pdf_file): ?>
sess && $this->sess->isArticlePayed()):?>
Июль 2020
CONTENT
Alexey Artyukh The Supreme Court on the Reasoning in the Analysis of the Choice of a Tax Evading Counterparty Case Comment on the Judgments of the Chamber for Commercial Disputes
of the SC RF No. 307-ЭС19-27597, 14 May 2020, and No. 305-ЭС19-16064, 28 May 2020
When tax authority discovers signs of tax evasion by a taxpayer’s counterparty, and this counterparty
does not have enough resources for carrying out its business or has some defects in documentation,
this should not be enough to impose liability on the taxpayer. It is necessary to assess each time
the taxpayer’s awareness of possible violations of the counterparty in the actual transaction and the
absence of collusion with him on the basis of the due diligence criterion, the standard of which is
equal to the commercial due diligence, and therefore may vary depending on the significance of the
disputed transaction. Such standard in any case involves assessment, in addition to the commercial
terms of the transaction, of the business reputation, solvency of the counterparty, resources, risks of
default, etc.
Keywords:
due diligence, bad faith counterparties, tax liability
Buy a PDF
Vadim Insarov Abuse of Right of Unilateral Termination of Contract: Commented Translation of the Judgment of the Supreme Court of Cassation of Italy
No. 20106, 18 September 2009
In this case the Supreme Court of Cassation of Italy examined the exercise of the right to unilaterally
terminate a contract having regard to the principles of good faith and abuse of right. The Court held
that including a clause in a contract that permits one of the parties to terminate a contract unilaterally
does not imply that the exercise of this right cannot be recognised as abusive. It means that the court
that hears such a case is nevertheless bound to examine the modality of the execution of the right
of unilateral termination as well as the circumstances that determined inclusion of the termination
clause in the contract. The abuse of right might take place when the party terminating the contract
pursues goals that differ from those proposed by the law. This may include execution of the right in
a questionable manner by reference to legal or extralegal evaluation criteria, as well as abuse of a
dominant position or bargaining power during the negotiation of the contractual conditions.
Keywords:
good faith, abuse of rights, unilateral termination of contract, balancing test
Buy a PDF
FREE TRIBUNE
Maria Aleksandrova, Sergey Gromov, Tatiana Krasnova, Nataliya Rasskazova, Anton Rudokvas, Andrey Rybalov, Yuriy Tolstoy Opinion of the Civil Law Department of St. Petersburg State University on the Draft Amendments to the Section on Property Rights of the Civil Code of the Russian Federation It is not a good idea to fundamentally reform property law in one step since in this sphere the evolutionary
way of development is more preferable than the revolutionary one. However, even if one
agrees with the necessity of this reform, its realisation as presented in the draft amendments to the
Civil Code of the Russian Federation under discussion raises a number of conceptual objections as
well as numerous comments on minor issues. This fact makes us consider the enactment of this draft
law undesirable.
Keywords:
amendments to the Civil Code, property rights, reform
Buy a PDF
Ivan Chuprunov Effect of Shareholders’ Approval on the Director’s Liability to the Company A Detailed Case Comment to the Judgment of the Chamber for Commercial Disputes
of the SC RF No. 305-ЭС19-8975, 17 September 2019
The article provides a detailed examination of the effect that approval of director’s actions by
shareholders should have on the director’s liability towards the company. The author analyses
the approaches to this issue existing in Russian judicial practice, including the indicated judgment,
and compares them to the concepts existing in foreign law. As a result of this critical analysis, it
is concluded that the existing approaches need to be adjusted: as a general rule, shareholders’
approval should exempt the director of liability, though there should be a set of exceptions to this
rule. The article proposes a number of factors that should be taken into account when deciding
whether the shareholders’ approval exempts the director. In addition, the author examines related
issues regarding the approval’s effect on exemption from liability in case of a breach of duty of
loyalty, extension of the proposals made in the article to approvals in public joint-stock companies
and approvals by a board of directors, as well as the potential liability of shareholders who approved
the director’s actions.
Keywords:
director’s liability, shareholders’ approval, corporate law
Buy a PDF
Olga Romanova Offset against an Assigned Claim in Court Practice This article analyses the problems that arise in court (arbitrazh) practice when applying the rules of
offset when a claim is assigned. A significant part of the study is devoted to how the courts understand
the basis of the debtor’s claim to the assignor, as well as the time frame for fulfilling that claim. The
work also reflected the courts’ approach to such controversial issues as the permissibility of offset
in the event of bankruptcy of the assignor, as well as the possibility of offset in case of assignment
by filing a counterclaim. The article also touches upon other problems in arbitration practice, which
urgently need to be solved but unfortunately are still ignored by the highest court.
Keywords:
offset, assignment, offset after assignment, court offset
Buy a PDF
