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ARCHIVE FOR 2020    RUSSIAN

Август 2020

CONTENT

 

 

Alexander Kuznetsov New Life of Russian Corporate Law and Restrictions on Disposal of Shares (Stock)
Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 306-ЭС19-24912, 11 June 2020 The article comments on one of the most important recent judgments of the Russian Supreme Court in the sphere of corporate law. In particular, it discusses the significance of the Court’s opinion for determining the limits of freedom in the context of corporate legislation, as well as the applicability of the rules on partnership agreement to business companies.
Keywords: corporate law, transfer of shares, pre-emptive right, business companies, partnership
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Ivan Chuprunov Beginning of a “New Life” in Russian Corporate Law
Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 306-ЭС19-24912, 11 June 2020 The article provides a detailed analysis of the judgment of the Chamber for Commercial Disputes of the SC RF in the case of LLC ‘Yana Tormysh’. The author believes that this judgment marks the beginning of a ‘new life’ in Russian corporate law. The highest court in the motives expressly confirms a number of concepts that have been previously supported only in scholarship, including the qualification of the charter as a partnership agreement, application of the rules on legal transactions to the decisions of meetings and the recognition of the non-mandatory nature of the legislation on limited liability companies. The article also examines the position taken by the SC RF in respect of nullity of the charter provisions setting an understated pre-determined price for exercising the preemptive right to purchase, and suggests the necessary clarifications and adjustments to this position.
Keywords: corporate law, pre-emptive right, freedom of contract, non-mandatory rules, charter, decisions of meetings
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Sergey Budylin The Case about Digital Gold. Why did the U.S. Authorities Ban Pavel Durov’s Cryptocurrency
Case Comment to the Judgment of the District Court, S.D. New York, SEC v. Telegram Group Inc., No. 1:19-cv-09439-PKC, 24 March 2020 A U.S. court has banned Pavel Durov from releasing new-generation cryptographic currency related to the Telegram project. The court recognized the crypt coins to be issued as ‘securities’ whose public offering requires onerous registration procedures. The reasonableness of the court’s decision doesn’t seem to be unquestionable.
Keywords: cryptocurrency, USA, securities, Telegram
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FREE TRIBUNE

Ekaterina Avtonova, Polina Astapenko, Daniil Boreysho, Maxim Do, Alexander Malshakov, Vladimir Mymrin, Ilya Papilin, Olga Romanova and others Commentary to the Review of Judicial Practice of Resolving Disputes Related to Independent Guarantees Approved by the Presidium of the RF SС 5 June 2019 (Part 1)
In the first part of the commentary, the authors analyse rules that the Supreme Court of the Russian Federation gave in relation to the transactional nature of the guarantee and the moment of its entry into force, the term of its validity, the necessity to specify a certain sum of money in it and the limits of its dependence on the main obligation. Supreme Court’s position regarding the permitted objections of the guarantor to the performance of the guarantee obligation is also scrutinised.
Keywords: independent guarantee, beneficiary, guarantor, accessory character
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Sofia Pimenova Interim Measures in the Courts of Eurasian Integration
This article addresses the issue of interim measures applied by international courts established in the post-Soviet space within various integration associations — the Economic Court of the Commonwealth of Independent States, the Court of the Eurasian Economic Community and the Court of the Eurasian Economic Union. It is noted that despite the fact that the power to apply such measures (including proprio motu) was explicitly contained in the documents of both the Economic Court of the Commonwealth of Independent States and the Court of the Eurasian Economic Community, both courts showed obvious restraint in this matter, never resorting to interim measures. The Statute of the Court of the Eurasian Economic Union does not provide for the right of the Court to use interim measures during the trial, but this does not mean that the Court lacks this right. According to the author, the Court of the Eurasian Economic Union may in certain situations where the application of interim measures is obviously justified decide to apply such measures referring to its implied power to ensure the integrity of the proceedings and the effective enforcement of the decision on the merits of the dispute. This would serve as an obvious teleological interpretation of the Statute of the Court of the Eurasian Economic Union in the absence of provisions that need to be interpreted.
Keywords: provisional measures, interim measures, EAEU Court, EAEC Court, Economic Court of the Commonwealth of Independent States, Eurasian integration
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Martijn W. Hesselink The Concept of Good Faith
The author criticizes the concept of good faith as an open norm, the content of which must established by concretization. According to the author, the so-called ‘functions’ of good faith — interpretation, supplementation and correction — are in fact the tasks of the court. So legal scholars should not build a separate system from specific norms that are derived by courts with reference to good faith. The author advocates that recognition of the judge as a creator of new rules will allow to avoid the constant mention of good faith in judicial decisions.
Keywords: principle of good faith, functions of good faith, inner system of good faith, general clauses, judicial lawmaking
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Alexey Akuzhinov Disgorgement of Profits in Russian Law: Issue Contextualisation, Brief Background Story and Review of the Practice of Application of Article 15 (2) (2) of the Civil Code of the Russian Federation
This paper is devoted to the discussion of the disgorgement of profits in Russian law, a remedy that allows a harmed person to recover from the offender the profits received by the latter as a result of the violation of the opponent’s rights. The author describes the main problems related to application of the institution of disgorgement of profits in the context of the general theory of remedies; traces the history of the emergence of the norm of Article 15 (2) (2) of the Civil Code of the Russian Federation in the text of the Code on the basis of recently published materials from the development of its first part; analyses in detail the practice of application of Art. 15 (2) (2) of the Civil Code by Russian arbitration courts and also by the Supreme Court of the Russian Federation, including the issue of qualification by the courts of the remedy established by Art. 15 (2) (2) of the Civil Code of the Russian Federation as an abstract method of damages calculation or as a sui generis institution that allows to recover income of the offender, regardless of the existence or absence of losses on the victim’s side.
Keywords: disgorgement of profits, gain-based remedies, property rule, damages, loss of profit, unjust enrichment, court practice
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