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ARCHIVE FOR 2020    RUSSIAN

Июль 2020

CONTENT

 

 

Alexey Artyukh The Supreme Court on the Reasoning in the Analysis of the Choice of a Tax Evading Counterparty
Case Comment on the Judgments of the Chamber for Commercial Disputes of the SC RF No. 307-ЭС19-27597, 14 May 2020, and No. 305-ЭС19-16064, 28 May 2020 When tax authority discovers signs of tax evasion by a taxpayer’s counterparty, and this counterparty does not have enough resources for carrying out its business or has some defects in documentation, this should not be enough to impose liability on the taxpayer. It is necessary to assess each time the taxpayer’s awareness of possible violations of the counterparty in the actual transaction and the absence of collusion with him on the basis of the due diligence criterion, the standard of which is equal to the commercial due diligence, and therefore may vary depending on the significance of the disputed transaction. Such standard in any case involves assessment, in addition to the commercial terms of the transaction, of the business reputation, solvency of the counterparty, resources, risks of default, etc.
Keywords: due diligence, bad faith counterparties, tax liability
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Vadim Insarov Abuse of Right of Unilateral Termination of Contract:
Commented Translation of the Judgment of the Supreme Court of Cassation of Italy No. 20106, 18 September 2009 In this case the Supreme Court of Cassation of Italy examined the exercise of the right to unilaterally terminate a contract having regard to the principles of good faith and abuse of right. The Court held that including a clause in a contract that permits one of the parties to terminate a contract unilaterally does not imply that the exercise of this right cannot be recognised as abusive. It means that the court that hears such a case is nevertheless bound to examine the modality of the execution of the right of unilateral termination as well as the circumstances that determined inclusion of the termination clause in the contract. The abuse of right might take place when the party terminating the contract pursues goals that differ from those proposed by the law. This may include execution of the right in a questionable manner by reference to legal or extralegal evaluation criteria, as well as abuse of a dominant position or bargaining power during the negotiation of the contractual conditions.
Keywords: good faith, abuse of rights, unilateral termination of contract, balancing test
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FREE TRIBUNE

Maria Aleksandrova, Sergey Gromov, Tatiana Krasnova, Nataliya Rasskazova, Anton Rudokvas, Andrey Rybalov, Yuriy Tolstoy Opinion of the Civil Law Department of St. Petersburg State University on the Draft Amendments to the Section on Property Rights of the Civil Code of the Russian Federation
It is not a good idea to fundamentally reform property law in one step since in this sphere the evolutionary way of development is more preferable than the revolutionary one. However, even if one agrees with the necessity of this reform, its realisation as presented in the draft amendments to the Civil Code of the Russian Federation under discussion raises a number of conceptual objections as well as numerous comments on minor issues. This fact makes us consider the enactment of this draft law undesirable.
Keywords: amendments to the Civil Code, property rights, reform
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Ivan Chuprunov Effect of Shareholders’ Approval on the Director’s Liability to the Company
A Detailed Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС19-8975, 17 September 2019 The article provides a detailed examination of the effect that approval of director’s actions by shareholders should have on the director’s liability towards the company. The author analyses the approaches to this issue existing in Russian judicial practice, including the indicated judgment, and compares them to the concepts existing in foreign law. As a result of this critical analysis, it is concluded that the existing approaches need to be adjusted: as a general rule, shareholders’ approval should exempt the director of liability, though there should be a set of exceptions to this rule. The article proposes a number of factors that should be taken into account when deciding whether the shareholders’ approval exempts the director. In addition, the author examines related issues regarding the approval’s effect on exemption from liability in case of a breach of duty of loyalty, extension of the proposals made in the article to approvals in public joint-stock companies and approvals by a board of directors, as well as the potential liability of shareholders who approved the director’s actions.
Keywords: director’s liability, shareholders’ approval, corporate law
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Olga Romanova Offset against an Assigned Claim in Court Practice
This article analyses the problems that arise in court (arbitrazh) practice when applying the rules of offset when a claim is assigned. A significant part of the study is devoted to how the courts understand the basis of the debtor’s claim to the assignor, as well as the time frame for fulfilling that claim. The work also reflected the courts’ approach to such controversial issues as the permissibility of offset in the event of bankruptcy of the assignor, as well as the possibility of offset in case of assignment by filing a counterclaim. The article also touches upon other problems in arbitration practice, which urgently need to be solved but unfortunately are still ignored by the highest court.
Keywords: offset, assignment, offset after assignment, court offset
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