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Сентябрь 2019




Takhmina Arabova, Sergey Budylin The Transient Debtor Case, or the Supreme Court on the Subordination of Bankruptcy Claims
Case Comment on the Judgments of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС18-17629, 14 February 2019 and No. 305-ЭС18-17629 (2), 28 March 2019 In this bankruptcy case, independent creditors suspected that two majority creditors were controlled by the same persons as the bankrupt company, and the claims of these creditors were created through artificial manipulations and perhaps for the express purpose of gaining control over the bankruptcy process. According to the independent creditors, the debtor’s account was being used as a transit account, i.e. the borrowed funds were immediately being transferred to the accounts of other members of the same group. However, inferior courts found no direct evidence of these suspicions in the case materials and found indirect evidence insufficient. The Chamber for Commercial Disputes of the Supreme Court did not agree with the inferior courts. Having noted that indirect evidence must also be taken into account, the Chamber shifted the burden of proof to the creditors suspected of affiliation and referred the case for reconsideration. The case may become an important precedent for consideration of such disputes in the future, as the legal positions in it were extremely clear and almost impeccable.
Keywords: bankruptcy, affiliated creditors, subordination of claims, burden of proof
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Аndrey Gabov Special Grounds for Refusal of State Registration for Cases of Reorganization of a Legal Entity: Evolution, Content and and Problems of Application
The article is devoted to the analysis of the grounds for refusal of state registration carried out at the end of reorganization. This study is being conducted for the first time. This topic has not previously been studied in the whole complex of problems. The author systematically considers all the grounds established by the law and the history of their appearance and practice, and points out that, of the three available grounds, two should be explicitly excluded, since they represent typical fictitious, non-working norms. The third reason, according to the author, requires reformulation, as it creates significant risks for parties to business transactions. According to the author, the grounds for refusal of state registration during reorganization cannot be formulated without changes in the legislation on reorganization and in the legislation on state registration.
Keywords: legal entity, reorganization, creditors’ rights, state registration
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Evgeniy Suvorov Some Problems of E-Commerce: On the Question of Aggregator Owners’ Liability to Customers
The article is devoted to the liability of aggregator owners to сustomers for the execution of contracts made using the said aggregator. The author substantiates the thesis that such liability can already be derived with a certain interpretation of the current law (de lege lata), while there are also serious arguments de lege ferenda in favor of its existence. Among the latter, in particular, the sphere of control belonging to the aggregator owner, the lack of grounds for the advantages of electronic retailers over offline ones, the need to achieve a balance between opportunities and risks, the liability from the customer’s loyalty to the brand of the aggregator owner, the need to protect the weak party and the inadmissibility of the abuse of contractual structures are pointed out. According to the author, reducing the function of the aggregator owner to that of a communications operator is contrary to the concept of trade and the relations that are developing in reality.
Keywords: e-commerce, aggregator, liability, customer, retail
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Ekaterina Avtonova, Polina Astapenko, Daniil Boreysho, Maxim Do, Alexander Malshakov and others Comment on Resolution of the Plenum of the Supreme Court of the Russian Federation No. 49 dated December 25, 2018
The article contains the comprehensive review of legal opinions expressed by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 49 dated December 25, 2018 On Some Issues of General Provisions of the Civil Code of the Russian Federation Applicable to Contract Execution and Interpretation. The first part of the article commenting on Clauses 1–12 of the Resolution deals with topical issues of judicial practice with regard to entering into contracts. In particular, of great practical interest are the opinions of the Supreme Court of the Russian Federation on the application of pre-contractual liability rules to real contracts, the effect of Clause 3 Article 432 of the Civil Code of the Russian Federation and the possibility of revoking an offer if the term for its acceptance is not established. Substantial attention is paid to the provisions related to offer and acceptance, material terms of contracts and ways of entering into contracts. The provisions commented upon allow one to take a fresh look at classical issues of the general provisions of contractual law and to discover controversial questions for further study and discussion.
Keywords: offer, acceptance, contract, convalidation, pre-contractual liability, material terms of a contract, contract form, nonopposition principle, estoppel, option
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Alexander Kostin Cross-Border Insolvency and International Commercial Arbitration in Russia (Procedural and Material Aspects)
The paper addresses the nature of cross-border insolvency and its impact on a dispute pending before an arbitration tribunal seated in Russia. The author argues that a procedural effect resulting in the invalidity of the arbitration agreement arises only in the event of the recognition of a foreign insolvency judgment in Russia. In turn, the substantive effect in the form of the recognition of the capacity of foreign trustees arises immediately under the operation of the national conflict of law rule determining the law applicable to the capacity of foreign legal entities (Art. 1202 of the Civil Code of the Russian Federation) and natural persons (Art. 1195–1197 of the Civil Code of the Russian Federation).
Keywords: cross-border insolvency, arbitration clause, international commercial arbitration
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Pavel Markov Can an Offer Outlive the Offeror, or Memento mori when Entering into Contracts
The author analyses the consequences of the offeror's death if it occurs before entering into the contract and notes that there is no consensus regarding this problem in Russia and abroad. In the article, it is concluded that, in most cases, the offer should remain effective in such circumstances. However, the heirs may withdraw from it if they can prove that the offeree was aware of the offeror's death at the time of acceptance. If the offeree learned of the offeror's death after acceptance, the offeree may revoke the acceptance within a reasonable period after the notice of the death. As a general rule, the term for performing obligations should be extended in proportion to the period until the acceptance of the inheritance, and the liability of the heirs under the contract should be restricted by the market value of the inherited property. These rules, with some exceptions, can be also applied to related situations (the acceptor's death or the incapacity or reorganization of either party).
Keywords: entering into a contract, offer, acceptance, inheritance
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Olga Romanova Analysis of Court Practice on the Termination of Obligations by Offset
The author considers practical problems arising when the courts determine the time of termination of obligations by offset. The lack of regulation on this issue, together with conflicting doctrinal views, leads to ambiguous positions in law enforcement practice. Despite the fact that, in most cases, the courts decide on the future termination of obligations by offset, they often terminate obligations retroactively, following the idea of Clause 3 of the Information Letter of the Presidium of the Supreme Court of the Russian Federation No. 65 dated 29 December 2001. This uncertainty is typical for both extrajudicial offset and offset performed by filing a counterclaim. The ambiguity of the practice coexists with the widespread misunderstanding of the retroactive and prospective nature of offset among the courts. This is most evident in the imposition of penalties by the courts until the receipt by a compensator of an application for retroactive offset, despite the fact that this is possible only through the prospective offset of obligations. The analysis also revealed widespread erroneous application by the courts of the rules on the retroactivity and prospectivity of termination of obligations to quasi-offset structures. The author focuses attention on the revealed contradictions in judicial practice and assesses the existing approaches from the point of view of the adequacy of their adoption as a general rule.
Keywords: offset, prospective model, retroactive model, time of termination of obligations by offset, quasi-offset structures, judicial offset
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Alexander Vereshchagin Klimov Case and Article 683 of the Code of Civil Laws in the Jurisprudence of the Ruling Senate
This article is dedicated to one of the most famous and ground-breaking decisions of the Civil Cassation Department of the Ruling Senate. The decision in question was heavily critised in the then legal literature, as well as in journalism. The authour investigates the rationale and background of this decision, puts it into the general context of Senate’s jurisprudence regarding the recovery of personal harm caused by the exploitation of railroads, and tries to find out to which extent the opinion about «arbitrariness» of this decision is substantiated.
Keywords: torts (civil injuries), railroads, Ruling Senate
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