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Май 2019




Maria Belova Davnyaya Step, or Three Lessons from Holding HSBC Liable in a Controversial Bankruptcy Case
Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 308-ЭС17-6757 (2, 3), 6 August 2018 This article is an overview of the most interesting practical and theoretical issues raised by the recent, famous insolvency case of Dalnyaya Step LLC (DSL). DSL, a Russian company owned by American investor William Browder through Hermitage Capital, was abandoned in 2004 as a result of rising tensions with Russian authorities and Browder’s exodus from the country. DSL was stripped of its assets (all money was withdrawn from its bank accounts in 2004–2005 and paid as dividends to overseas Hermitage-controlled parent companies), went bankrupt, and was liquidated in 2007. However, in 2015 the insolvency procedure unexpectedly resumed, which resulted in finding a Russian subsidiary of the international banking group HSBC co-liable as a controlling entity of DSL and responsible for its illiquidity. It was ordered to pay approximately RUB 1.3 billion to the sole creditor of DSL — the Russian tax authority. The article covers such key takeaways from the case as the statute of limitations and its interruptions, the court’s authority to deny the parties’ settlement, and the status of the bank managing the client’s accounts as a controlling party.
Keywords: subsidiary liability, limitation period, bankruptcy
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Alexey Moroz Claim Subordination in Bankruptcy: How to Address Claims without Consideration by the Creditor?
Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС18-11840, 26 November 2018 The commentary assesses the case law of the highest court on the inclusion of creditor claims at the observation stage in the fifth line of relief, which is not provided for by the Bankruptcy Law (after the creditors’ claims, where settlements are made according to the rules of sub-paragraph 1, paragraph 4, Article 142 of the Bankruptcy Law). The author raises the issue of judicial protection limits for the property interests of the parties under an unfulfilled reciprocal contract in the face of bankruptcy of one of the counterparties. He argues for limiting the rights of creditors under such obligations to ensure a balance of interests of all participants in the bankruptcy procedure.
Keywords: bankruptcy, subordination of claims, reciprocal contract, repudiation of contract, cession
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Evgeniy Suvorov Claims of Parties Connected with the Debtor within a Case on His Bankruptcy: From Objective to Subjective Imputation
In the conclusion of the article, the author provides the definition of a debtor-related person, gives the classification of such persons, and concludes that the relation itself can only lead to procedural but not material consequences. Procedural consequences apply to all claims of related persons (the standard of proof for amicable creditors). The material consequences, to the contrary, must have additional grounds for application (undercapitalization, violation of the information obligation, abuse of the right, denial of autonomy, decentration of will, etc.). The author also analyzes possible grounds for changing the material regime of a claim in obligation by a related person. Among those grounds there are some that are specific to the related persons are the use of the ability to determine the actions of the debtor for the purpose of acquiring a claim and creating a corresponding obligation, insufficient capitalization, and a violation of the information obligation. The author specifies the procedural consequences of the fact of being affiliated (use of certain presumptions and redistribution of the burden of proof) and summarizes the possible material consequences (refusal to enforce protection, claim subordination, deprivation of the right to vote, change in the claim’s scope). In conclusion, proposals are made to improve legislation and law enforcement practice.
Keywords: bankruptcy, related persons, burden of proof, claim subordination, abuse of right
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Anna Ivanova, Andrey Rybalov Fiduciary Ownership and Pledge
A pledge is commonly assumed to be a security allowing the interests of the parties to be as balanced as possible. However, the authors doubt this opinion based on the analysis of their data-set. Only a small share of tenders ends in the sale of property, and the sale price of the mortgage item in many cases seems unfair; lex commissoria does not allow one to fully iron out these shortcomings. Perhaps, in some cases, the interests of all participants of the respective relationships would be better met by the use of title securities, in particular, fiducia, for which Russian laws have prerequisites. Grounds for the resolution of specific practical issues are prepared by law enforcement practice and the regulation of other security frameworks, including pledge.
Keywords: pledge, pledged item acquisition, fiducia, ownership, title security
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Nikita Teplov Pledge of the Entire Property, or Consequences of Lobbying Factional Interests
The article addresses an amendment to the Civil Code of the Russian Federation resulting from its reform, namely, sub-paragraph 2, paragraph 2, Article 339. The author analyzes in detail the norm allowing one to reduce the individualization of the pledged item (up to its description by indicating the pledge of the entire property), its background, possible interpretations, and consequences of enforcement, coming to the conclusion that the idea to weaken the principle of specialty in the pledge law should not cause a conceptual objection. However, the author also believes that the current version of sub-paragraph 2, paragraph 2, Article 339 of the Civil Code of the Russian Federation is a mistake of the legislature because the possible consequences of its introduction were not adequately analyzed and because the principle of specialty was completely leveled instead of weakened.
Keywords: pledge, pledge of the entire property (general pledge), reform of the Civil Code of the Russian Federation
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Arina Nikulushkina Principle of Opposability and Paragraph 3 of Article 433 of the Civil Code of the Russian Federation in Arbitrazh Practice
The article summarizes more than 100 acts of cassation arbitration courts from January 2015 to March 2019 regarding the application of paragraph 3, Article 433 of the Civil Code of the Russian Federation after its amendment and clarification of the supreme courts regarding the principle of opposability of registered transactions. The author analyzes the impact of legislative changes on the prevailing judicial practice regarding conclusion of unregistered long-term lease agreements and agreements for participation in shared construction, as well as agreements on the assignment of rights of claims under such agreements. The article considers in a question-and-answer format the courts’ approaches to addressing a number of actual problems, for example, determination of third parties that cannot ignore an effect of an unregistered contract, the interpretation of paragraph 2 of Article 389 of the Civil Code of the Russian Federation in relation to agreements on the assignment of rights that are not directly related to the subject of the contract, and several others.
Keywords: state registration of the contract, principle of opposability, lease agreement, contract of participation in shared construction, assignment
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Vera Aleynikova Refusal to Pay on Insurance Contracts in Russian Court Practice
This article considers the practice of applying Articles 961–965 of the Civil Code of Russian Federation, which was adopted by commercial jurisdiction courts in 2011 (579 acts of Higher and District Arbitrazh Courts were studied). In general, claim denial regulation is based on two models: a model of unilateral refusal to fulfill obligations and a model of exemption. The courts substitute concepts in the model of unilateral refusal to fulfill obligations: «improper notification» of the insurer, i.e. failure to provide the full package of documents in accordance with the terms of the insurance contract, is interpreted as untimely notification. The insurer’s exemption from liability on the grounds of intentional guilt of the policy holder is sporadic, which is largely due to the burden of proof lying with the insurer, who should prove the intent of the insured in not taking reasonable and available measures, as well as the occurrence of the insured event.
Keywords: insurance indemnity, payment of damages, insurance
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