ARCHIVE FOR 2011 RUSSIAN
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Август 2011
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
The Bribery Act 2010 On July 1, 2011 The Bribery Act 2010 becomes effective — the document that has been lively discussed in the global legal community in these latter days. The interest to this matter has been sparked not only by drastic anti-corruption measures introduced by the document but as well by the extraterritorial nature of the Law that also formally covers foreign companies fully or partially running their activities in the UK. So, The Bribery Act can change business approaches applied by many largest multinational corporations. Does the extraterritorial focus of The Bribery Act infringe the other countries’ sovereignty concept? What company shall be deemed running business in the UK? What the companies have to do to escape responsibility? How to bring a company having no assets in the UK to responsibility? We asked our experts to give their opinion.
News of the community
Topic of the issue
A.V. Egorov Offset in bankruptcy proceedings: Russian Law and worldwide trends. The article is concerned with Russian regulation of offset in the context of pending or held bankruptcy proceedings as a way of debtor's obligations discharge. The author comes to the point that the ultra-hard regime has been established in Russia limiting offset upon introduction of the supervision procedure and offering an opportunity to contest the offset made during the suspicion period right before initiation of a bankruptcy case. Such conditions are not usual for any of analyzed foreign countries (Austria, the UK, Germany, Spain, Italy, Turkey, France, the Czech Republic) and are in contradiction with a widespread (including Russia) global idea of the historical nature of offset and its security focus which in foreign countries allows ranking a creditor having the right of offset together with collateral creditors.
Keywords:
legal nature of offset, security nature of offset, retroactive effect of filing for offset, specifics of offset in bankruptcy proceedings, contestation of offset as preferential deal
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V.N. Tkachev, M.V. Teliukina Conceptual peculiarities of deals contestation in bankruptcy law The article deals with different theoretical and practical aspects of debtor’s deals contestation in the context of bankruptcy proceedings. The author sketches out key elements of the system of deals contestation in bankruptcy relations and presents an original conceptual model of regulatory fixation of results of debtor’s deals contestation involving introduction of relevant amendments into the RF Civil Code and the Bankruptcy Law.
Keywords:
insolvency (bankruptcy), bankruptcy relationship, deal contestation, deal invalidity
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K.B. Korayev Statutory implementation of bankrupt’s deals contestation theories The article covers existing bankrupt’s deals contestation theories and their application in the effective legislation. The author reveals deficiencies in the legal regulation of the analyzed relations and offers suggestions as to improvement of the bankruptcy laws.
Keywords:
deals contestation theories, debtor’s voidable deals, deal invalidity, insolvency (bankruptcy) laws
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Y.V. Litovtseva Difficulties of proof in general contestation of debtor’s shady deals Proof of negligence of a party to a shady deal is hampered by evaluative nature of the negligence term. The article is dedicated to the analysis of precedents of deals contestation for reasons stipulated by paragraph 2 of Article 61.2 of the Federal Law “On Insolvency (Bankruptcy)” and offers practical recommendations as to proof of improper circumspection and unwisdom of actions shown by a party to a deal with the debtor.
Keywords:
insolvency (bankruptcy), deal invalidity, shady deal, good faith of a party to a deal, prejudice to creditors’ property interests
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M.V. Lavrov Practice of contestation of debtor’s shady deals The author analyzes the controversial issues related to the grounds, procedure and consequences of invalidation of shady deals and covers the problems connected with impossibility of invalidation of debtor’s shady deals.
Keywords:
deal invalidity, debtor, debtor’s shady deal, cross-designation, creditors’ property damage, consequences of shady deal invalidity
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S.V. Tarnopolskaya Invalidity of preferential deals of insolvent credit institutions. Trends of bankruptcy legislation development. Contestation of preferential deals for reasons stipulated by paragraph 3 of Article 103 of the Federal Law No.127-FZ “On Insolvency (Bankruptcy)” dated 26.10.2002 passes into history little by little. Today the judicial practice of application of Chapter III of the new version of the Bankruptcy Law is actively instilled. This article is aimed at finding an answer to the question if it has become easier to contest preferential deals effected just before the bankruptcy of a credit institution.
Keywords:
preferential deals, debtor’s deals contestation, deal invalidity, insolvency of credit institutions
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A.V. Khodyrev Invalidation of deals of interest in the context of insolvency proceedings: a dangerous precedent During the world finance crisis of 2009—2010 banks bumped up against a particularly pressing issue of adequate credit risk assessment and management. Now in the post-crisis economy the problem continues to be as topical. The credit market that has been brought to a stand during the crisis rises again day by day. Yet, a disturbing event has occurred this year affecting the whole bank system and credit market which has significantly increased repayment risks inherent to business lending (lending to companies). In the author’s opinion, the new risk can not be eliminated, even if consolidated, without involvement of the top government authorities. The article deals with this problem.
Keywords:
insolvency (bankruptcy), pledge, guarantee, deal of interest, deal invalidity
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Theory and practice
O.G. Lomidze, E.Y. Lomidze Contingent claims and restoration of status-quo that existed before the right violation This article is dedicated to negatory defense as a way to restore the status-quo that existed before the right violation. The analysis covers grounds for non-application of prescription principle for contingent claims. The authors come to the conclusion that the today’s realities require expansion of the defense area on the basis of the contingent claim model not providing for reference to prescription as in practical work we encounter cases involving other external hurdles under reserved rights and ownership on the part of the right holder.
Keywords:
remedy, contingent claim, replevin, prescription of claims, legitimation, ownership, land plot, cadastral mistake, unauthorized construction
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A.A. Glushetsky Lists competition, or “split” of the rights vested in securities This article analyzes conflicts and controversies arising from the practice of use of special documents called register backup in which possibility of exercise of rights vested in a security is fixed as well. The author criticizes the system providing that rights vested in a share (rights to take part in shareholders meetings, voting rights) may be separated from it and transferred by the former security holder to its legal owner by proxy. Legal emptiness of the "reference-to-voting” principle is revealed. The author takes a dim view of the existing practice of actual partition of bundle of rights vested in a share.
Keywords:
rights vested in securities, shareholders' rights recording, register of shareholders, list of participants of shareholders meeting, voting proxy, right for dividends
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A.V. Vorobyov Reputational damage in current Russian law The term “immaterial (reputational) damage” is not provided for by any Russian law but last years companies increasingly often file claims for compensation of such damage in connection with protection of their business reputation. In a number of cases such claims are satisfied.
Keywords:
immaterial (reputational) damage, business reputation, amount of compensation, proof of immaterial loss
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M.V. Yasus New Federal Law “On Clearing and Clearing Activities” and its role in development of organized securities market in Russia The article presents an analysis of clearing system’s functions related to integrated management of different risks arising during deals execution in the securities market. It is stated that obligatory application of the clearing procedure provides the market participants with a significant protection level that is more effective than the standard means of securing fulfillment of obligations. Integrated regulation of clearing relationship brings the financial market to a new level though there is a need for more detail regulation of activities of clearing by the newly passed law.
Keywords:
financial market, securities market infrastructure, clearing, financial instrument, credit risks, clearing activities, restitution, invalid deal
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A.V. Khrenov, A.M. Lebedev Limits for enforcement of the right to recover damages incurred in connection with injunction The RF Arbitration Procedure Code stipulates the defendant’s right to claim damages incurred in connection with injunction if the court dismisses the claim. Alongside with that, law books do not contain a shared vision as to the procedure and terms for recovery of losses incurred in connection with injunction. In this article the authors reason upon the legal nature of losses incurred in connection with injunction and analyze the main approaches to proof of elements of losses structure in this case.
Keywords:
injunction, losses, proof of losses, loss of profits, abuse of rights
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Actual classic
