Журнал ЗАКОН

Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС18-22976, 4 July 2019 In recent years, the Chamber for Commercial Disputes («Commercial Chamber») of the Supreme Court of Russia has actively been developing its approach to the limits of the creditor’s claim for specific performance of an obligation. One of the key defences for this claim is that the performance is no longer possible (the doctrine of impossibility of performance). Since 2016, the Commercial Chamber has several times approached the issue of how the impossibility should be defined. This comment outlines various concepts of the impossibility, explains their practical consequences and compares them with the Supreme Court’s approach.

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Keywords: specific performance, impossibility of performance, generic obligation

Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 307-ЭС19-7534, 18 September 2019 In its judgment, the Supreme Court affirmed the lower courts’ decisions denying enforcement of the arbitral award, confirming that the incorrect application of budgetary law rules and the arbitral tribunal’s reference to evidence that the other party to the case may not have had the opportunity to comment on constitute sufficient grounds for their decisions. The case comment notes that the Supreme Court, after establishing that the works under contract from which the dispute arose were ultimately funded from the state budget, did not conclude that the dispute was non-arbitrable. The reasoning of the judgment is critisised based on its resemblance to a review on merits.

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Keywords: arbitration, public policy, arbitrability, review on merits

This article deals with exemptions from the rules stipulating the conditions and procedure for launching a mandatory bid as well as the consequences of failure to comply with this obligation. Each exemption has been assessed from the perspective of its policy justification. Apart from exemptions, the article also deals with grounds for release from a duty to make a mandatory offer.

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Keywords: voluntary offer, mandatory offer, mandatory buyout of securities, joint-stock company, corporate law

In the second part of the Comments to Article 8.1 of the Civil Code of the Russian Federation, the author considers the «false exclusions» to the booking principle, explores the provisions of the Civil Code of the Russian Federation on the Registrar's right to examine the grounds for the state registration of rights, and analyzing the elements of the public reliability of the Register and protection of a bona fide purchaser.

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Keywords: Article 8.1 of the Civil Code of the Russian Federation, the Register of Titles to Real Estate, principle of public reliability, booking principle, bona fide purchase

The article focuses on the abandonment procedure in marine and non-marine insurance under Russian and English law. Comparative analysis shows that in both legal systems abandonment vests ownership in the subject-matter insured in the underwriter and burdens them with all liabilities attached to ownership, but not to the assured personally. However, the English and Russian approaches differ fundamentally in that in England, abandonment is regarded as a bilateral act, whereas in Russia it constitutes a unilateral act of the assured. Based partially on the English approach, the author suggests fixing provisions in the Russian legislation, stating that: 1) the underwriter may reject the notice of abandonment and refuse to take over the property; 2) if the underwriter accepts the notice of abandonment, apart from becoming the owner of the property insured, he is also entitled to the profits of the use of such property. As an alternative to the first suggestion, the author proposes limiting the time for issuing the notice of abandonment in non-marine insurance.

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Keywords: abandonment, unilateral act, insurance, marine insurance

The principle of proportionality («one share — one vote») is a key principle of corporate law based not so much on abstract notions of equity and shareholder democracy, as on objective economic laws confirmed by empirical data. Its economic logic is based on the position of a corporation participant as a person with residual claims, who has the greatest economic incentives to make a balanced and circumspect decision regarding the activities of the corporation. For a variety of reasons, justice systems allow for a deviation from the principle of proportionality, which can have both negative and positive consequences. The author examines the main, but not all, ways of deviating from this principle. However, the logic described in the analysis of the considered practices can also be applied to others. In recent decades, the main innovation of corporate practice affecting the principle of proportionality is a risk decoupling strategy. Examples of this practice demonstrate certain dangers of its use. However, the possible positive effects of risk decoupling and a number of other complications make it difficult to find a single and comprehensive legislative solution. The conclusions made here are also valid for the Russian system of justice due to the fact that Russia has a market economy model (which is complemented by a high degree of universality of corporate law). Indirectly, this article also touches on the extremely controversial issue of the dispositivity of corporate law norms in the Russian doctrine of recent years. There are significant reasons for the dispositive use of the principle of proportionality.

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Keywords: «one share — one vote», risk decoupling, default rules in corporate law, economic analysis of corporate law

The article analyses the court practice regarding issues of applying paragraph 2 of Article 314 of the Civil Code of Russia. In particular, it notes errors of the courts relating to the temporal applicability of law, and also focuses on how the provision under review is invoked by courts to eliminate causal uncertainty. The authors conclude that the new provision of clause 2 of Article 314 of the Civil Code of Russia, which now requires a creditor’s claim for a debtor to fulfill the contract, has led to an unreasonable differentiation of performance times in some types of contracts. The analysis of court practice shows that, in most cases, the courts adopt a strictly formal approach to the provision: they don’t use the opportunity to adjust the rule on creditor’s claim in accordance with the nature of the contract, or to change the seven-day grace period. In court practice, there is no unified approach to the qualification of the claim.

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Keywords: law of obligations, performance time, grace period, causal uncertainty, creditor’s claim

The case decided by the Governing Senate in 1873 concerned a painting attributed to a French painter Marilhat. The buyer had discovered that the work was not original and sued the seller asking the court to cancel the contract and return the price. The seller pointed out that the legislation of the Russian Empire, when dealing with the goods that do not comply with the terms of the contract, mentions only the right to return the advance payment. It follows, said the seller, that after the contract was fully performed it could not be set aside. The Governing Senate supported the claim and explained that in the case of common mistake as to the subject-matter of contract the latter should be invalid.

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Keywords: legal history, Russian Empire, invalidity of contract, mistake