ARCHIVE FOR 2020 RUSSIAN
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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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