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ARCHIVE FOR 2020    RUSSIAN

Сентябрь 2020

CONTENT

 

 

EDITOR’S COLUMN

 

Alexander Kuznetsov Dies a quo for Limitation of Action for Shareholders’ Claims
Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 303-ЭС19-25156, 26 June 2020 The commentary explores the problem of correlation between subjective and objective limitation periods in the context of claims brought by participants of commercial corporations. It is submitted that a period that starts running subjectively should not transform artificially into a period that starts running objectively. If this happens, the total period of limitation is shortened which will reduce claimant’s chances to defend his or her rights.
Keywords: corporate law, limitation of action
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Aleksei Basharin On Limiting the Freedom of Discretion of Public Authority when Adopting (Changing) Master Plans
Case Comment to the Judgment of the Chamber for Administrative Disputes of the RF SC No. 78-АПА19-5, 6 March 2019 The comment explores the problem of restricting the discretion of public authority when adopting (changing) master plans. The author also seeks to demonstrate the fallacy of mixing such legal concepts as: functional zones, restrictions on property rights for environmental purposes, and common areas. In addition, the article demonstrates that even if an owner of land succeeds in challenging the master plan, this does not guarantee real protection of his rights and may lead to uncertainty.
Keywords: master plan, comprehensive plan, consistency doctrine, burial places, green spaces, common areas
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Artur Shvayka Justification of Subjective Approach and Admissibility of Extrinsic Evidence in Interpreting Wills
The article notes ambiguity of the concept of ‘interpretation of will’ and argues that this concept includes also ‘construction’ of will. After analysing features of a will, the author concludes that subjective approach to the interpretation of a will should prevail. When applying subjective approach, the interpreter does not limit himself to the literal meaning of words but seeks to find in the text the meaning that the testator intended, as if reading the will through the eyes of the testator. In connection with the need to apply the foregoing approach, the author considers whether and to what extent it is possible to use extrinsic indirect evidence when interpreting wills, such as, at least, evidence of relationship with family and other closely connected people, place of residence, financial condition, profession, etc.
Keywords: succession law, will, interpretation, construction, extrinsic evidence
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FREE TRIBUNE

Ekaterina Avtonova, Polina Astapenko, Daniil Boreysho, Maxim Do, Alexander Malshakov, Vladimir Mymrin, Ilya Papilin, Olga Romanova, Grigoriy Skutin, Leonid Khodasevich 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 2)
The second part of the commentary includes an analysis of the legal opinion of the Supreme Court of the RF concerning non‑accessory character of the independent guarantee, specific features of a guarantee securing a procurement contract, limitation period for a claim of the beneficiary to the guarantor and some instruments preventing unjust enrichment of the beneficiary. The authors discuss the nature of the claim of the guarantor to the principal, consequences of insolvency of the guarantor as well as issuance of the independent guarantee without principal’s request.
Keywords: independent guarantee, principal, beneficiary, guarantor, non‑accessory character
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Anna Vasilyeva Unjustified Enrichment as a New Public-Law Construction
Administrative-Legal Analysis of the RF Constitutional Court Resolution No. 9-П, 24 March 2017 The absence of its own legal solutions addressing the needs of public governance in Russian public law entails the application of civil law categories for the purposes of public law. Based on the example of unjustified enrichment, the article examines wither the transfer of civil law categories into public law domain is possible and in what circumstances the borrowed categories will be compatible with other public law doctrines. The establishing of a new public-law category — public-law claim for unjustified enrichment is being substantiated.
Keywords: unjustified enrichment, principle of trust, administrative act, indirect judicial review
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Dmitry Stepanov Void Corporate Decisions in Arbitrazh Court Practice
Historically shareholders of Russian corporate entities have enjoyed broad range of powers on various corporate matters, therefore Russian commercial courts (arbitrazh state courts) developed a body of very nuanced and sophisticated case-law devoted to review of validity of such corporate decisions, both void and voidable ones. This article provides comprehensive analysis of current (from 2013 onwards) Russian commercial courts practice regarding void decisions of corporate meetings (general meetings of shareholders, board meetings / executive bodies meetings). The analysis of court practice is limited to a case law of higher courts (cassation arbitrazh courts and the Supreme Court of the Russian Federation) on void decisions, mostly passed by shareholders and directors of limited liability companies and joint-stock companies. The conclusion from author’s findings is two-fold. On the one hand, Russian courts define corporate decisions as sui generis legal phenomenon, opposing them to legal transactions (sdelki); accordingly corporate decisions to be governed by special corporate law rules and provisions, not by general provisions of the Civil Code devoted to transactions. On the other hand, when it comes to void decisions courts tend to equate void corporate decisions with void transactions. More specifically, courts are treating corporate decisions in the same manner as transactions (sdelki) by mere fact that judges repeatedly apply norms of the Civil Code — initially introduced for void transactions only — by extending them to void corporate decisions. This tendency of equating void corporate decisions to void transactions might be illustrated both at the level of general understanding and in concrete cases when courts dealing with specific issues of void corporate decisions (same approaches apply to various issues: limitation period for a claim to avoid a decision, who is entitled to bring a claim, what are the specific grounds for void decisions etc.). This tendency to synchronise legal regimes to be applied to both legal phenomena are paradoxical: the body of legislation, numerous court decisions and legal theory writings are advocating opposing approaches to corporate decisions and civil law transactions (sdelki). In fact — as the analysis presented below testifies — it is quite the opposite: the courts tend to apply practically the same rules and concepts both to void corporate decisions and to void transactions (sdelki).
Keywords: resolution of a corporate meeting, void resolutions of corporate meetings, commercial companies in Russian law
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