ARCHIVE FOR 2017 RUSSIAN
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Октябрь 2017
CONTENT
FREE TRIBUNE
Eleonora Vitol, Maksim Bashkatov On the Issue of Credit Notes as a Variety of Structural Product. Part One This article looks at a credit linked note (CLN) which is a form of structured product and one of the
most popular financial instruments in the world. Lack of legal definition in the Russian legislation
and lots of investment proposals for this product in the Russian market make its analysis ever more
relevant. Various models of CLN issuance and circulation were critically examined and legal risks
were identified to provide the economic rationale for this financial instrument and its assessment in
a broader context of the overall validity of structured products. The high-profile Trust Bank case is
referred to as a separate CLN model.
Keywords:
credit linked note, structured product, Trust Bank case, financial market, securities market
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Georgy Tsepov Shareholder Expulsion in a Limited Liability Company as Rescission of «Corporate Contract» The article deals with the problem of expulsion of a shareholder from a limited liability company (LLC).
Using the methodology of the contractual theory of the corporation and of the transaction cost theory,
the author examines a relative relationship between a shareholder and LLC through «corporate
contract». This allows for the rules of contract law to be applied to corporate relations, at least in the
part consistent with their merits. Consequently, the author concludes that expulsion of a shareholder
is neither more nor less than involuntary dissolution of «corporate contract». In dealing with a dispute,
no ad hoc criteria can and should be applied for a shareholder’s expulsion, the court should rather be
looking at the conditions settled by the parties to discover their factual will. Derogation from contract
principles and substitution of the subjective value of shareholders’ preferences for the external,
«objective» value should be treated as a violation of fundamental principles of private law. Both
the minority and majority shareholders can be expelled for breach of corporate duty to LLC. While
the right to sue (in material meaning) for a shareholder’s expulsion from LLC belongs to LLC, the
shareholders filing such a claim in court will have rights and obligations of the plaintiff. The rest of the
shareholders can support the asserted claims or join the suit as a third party, for judgment execution
will affect their joint interests.
Keywords:
expulsion from a limited liability company, shareholder, corporate contract, contractual theory of corporation
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Daria Petrova Doctrine of Frustration: Application, Characteristics and Consequences under English Law The author analyses the doctrine of frustration and follows its history in English law. The article
explores facts material to frustration and their substance in the theory and practice of English courts.
A substantial change criterion is, in particular, analysed along with the consequences of frustration
under English law. The article considers the potential application scope for the doctrine, including
the impossibility and illegality of performance as grounds for frustration in the actual legal practice
and doctrinal approach. It also considers a substantial increase in performance costs as a reason
for frustration and concludes that normally it does not serve as an independent ground to frustrate
a contract. In some cases, the ground to terminate contractual obligations has a complex nature
presuming that substantially increased costs coupled with the impossibility or illegality of performance
may lead to a contract being discharged on the ground of frustration.
Keywords:
doctrine of frustration, contract, rescission of contract, substantial change in circumstances
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Elena Klyuchareva Dogmatic and Historical Justification of Company Directors’ Duties and Liability in Different Jurisdictions The article elaborates on the origin and evolution of company directors’ duties and liabilities in the UK,
the USA, Germany and Russia as well as on the dogmatic justification of their respective historical
development based on the theory of fiction, the organic theory, law & economics. The author outlines
the regulation of company directors’ duties and liabilities in common law jurisdictions (through the
analysis of English and American law) considering the historical treatment of directors as trustees
and agents of both shareholders and a company with subsequent development of their fiduciary
duties despite eventual rejection of analogies between trust, agency and directorship. In addition,
directors tend to have broader discretion in business decisions in the two jurisdictions. At the same
time, in Germany and Russia directors are assumed to be acting under the company’s mandate with
their duties being established by the law and subject to the objective, good businessman test. The
author concludes that the Russian regulation of directors’ duties and liability has different grounds in
comparison with the common law countries and cannot be determined on the basis of English and
American concepts.
Keywords:
directors’ duties, business judgment rule, good ordinary businessman, fiduciary duties
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