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Сентябрь 2020



Chief editor’s column



Interview of the issue


The Event. Comments of the Experts

Out-Of-Court Bankruptcy
Comments by O. Zaytsev, R. Miftakhutdinov, A. Yukhnin, S. Karelina, Ye. Serditova, M. Patsatsiya, Ye. Uksusova, I. Yastrzhembskiy, D. Arkhipov, O. Permyakov, D. Konstantinov, N. Stroev, O. Babkin
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Topic of the issue

E.D. Suvorov Principle of Equality of Creditors as a Tool Of Uncovering Abuse in Bankruptcy: Equal for Equals, Unequal for Unequals
The article is devoted to the principle of equality of creditors in its positive and negative manifestations. A positive manifestation is called equal treatment for equals, negative — unequal treatment for unequals, which is sometimes also called a limitation of the principle of equality. The conditions of such restrictions are given, their classifications are proposed, the types of restrictions by virtue of the law are reported, the meaning of contractual subordination of claims is revealed, the question of the availability of alternatives for exceptions to the principle of equality of creditors is raised. In particular, it is indicated that exceptions can be expressed in prioritising and subordinating priorities, providing an advantage in the distribution of proceeds from the sale of an asset (secured creditors), and withdrawing a specific asset (group of assets) from the bankruptcy estate. It is reported that exceptions can manifest themselves in various combinations: priority in distribution, but denial of the right to control, subordination in distribution and denial of the right to control, etc. In the author’s opinion, the assessment of the validity of an exception from the principle of equality requires an answer to the question to what extent one or another exception is based on the differences deserving priority. In the context of the abuse of right, the author comes to the conclusion that the principle of equality in all its manifestations is a tool for identifying committed abuses or, on the contrary, ascertaining their absence.
Keywords: pari passu, principle of equality of creditors, title security, collateral, unsecured creditors, retention of title clause, set-off, priority, subordination, abuse of right
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A.I. Shaidullin Debtor-Related Creditors Participation in Insolvency Proceedings
The article deals with analysis of the main features of debtor-related creditors participation in insolvency proceedings. Author comes to conclusion, that the interests of genuine creditors objectively do not coincide with the interests of debtor-related creditors, which creates fertile ground for violation of the rights of genuine creditors during voting at the general meeting. For this reason, debtor-related creditors control of the proceedings should be minimised.
Keywords: debtor-related creditors, bankruptcy, genuine creditors, subordination of shareholder claims, determination of claims in the insolvency proceedings
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I.M. Shevchenko On Some Questions of Challenging of Creditors Meetings’ Decisions in Bankruptcy Cases
The author contemplates on deep doctrinal issues that emerge during the consideration of disputes on challenging creditors’ meetings’ decisions in bankruptcy cases. In particular, as the author asserts, the resolution of practical cases depends on the concept of court ruling (theory of declaration or theory of order) and on the answer to the question whether a meetings’ decision is a civil transaction or not.
Keywords: creditors’ meeting, the concept of a court decision, nullity of a meeting’s decision
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E.Yu. Olevinskiy Reasons for the Most Frequent Cases of Law Abuse in Bankruptcy Cases
The article analyses the reasons for abuse of right in insolvency cases as examplified by most common practical situations. The author demonstrates when detailed regulation comes into conflict with the purposes of regulation, and when lack of regulation, on the contrary, creates grounds for abuse.
Keywords: bankruptcy administrator, bankruptcy law, bankruptcy expenses, right on the information in bankruptcy, contesting debtor’s transactions, bankruptcy assets’ selling, abuse of law
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Yu.I. Efishova The Impact of Debtor’s Voluntary Liquidation on the Balance of Rights of Bona Fide Creditors
This article analyses the legal regulation and court precedents relating to the simplified bankruptcy procedure for companies in liquidation. In many cases the bankrupts use winding-up for an illegal purpose — to rob creditors of their right to choose the liquidator. The case law shows that courts are quite inconsistent in evaluation of creditors’ arguments that prove the false character of liquidation. An important obstacle for returning the right to choose liquidator to bona fide creditors is the view of the Supreme Court. The writer emphasises some common factors which prove false liquidation and provides additional criteria helping the creditors to regain their right to choose the liquidator when reviewing the declaration of bankruptcy. Certain mechanisms of improving law enforcement practices in order to protect bona fide creditors interests and making court practice more consistent are singled out.
Keywords: bankruptcy of company in liquidation, choice of the liquidator, false liquidation, nullity resolution on liquidation, controlled bankruptcy
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E.V. Mokhova, N.P. Yatsuk, A.E. Lidzhanova Forum Shopping and Regulatory Competition in Cross-Border Insolvencies and Restructurings
The article covers the subject of forum shopping and regulatory competition in cross-border insolvencies and restructurings due to the impact of Directive of the European Parliament on preventive restructuring frameworks as well as the role of coronavirus pandemic. Looking at the experience of the European Union in handling bankruptcy and pre-bankruptcy forum shopping abuses, authors analyse the EU model of preventive restructuring and its regulatory competition potential. They assess possible impact of COVID-19 on regulatory competition and forum shopping during insolvency and restructuring proceedings. The article draws parallels with Russian judicial practice.
Keywords: cross-border bankruptcy, cross-border restructuring, schemes of arrangement, abuse in cross-border bankruptcy, COMI, forum shopping, regulatory competition, preventative restructurings, relative priority rule, absolute priority rule, bankruptcy court
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R.A. Taradanov September: Learn, Learn, and Learn
And you have one more year added — Elections, elections... — Advocates and adequacy — Dissolution of the law — Pass and Pass — In the memory of Tsoy do say a good word — Two courts and two judges — Tax in the fall is to be counted
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Press Release


Theory and practice

V.V. Starzhenetskiy On the Provisional Application of Treaties, Separation of Powers and Democratic Legitimacy
Provisional application of a treaty, which is subject to ratification, raises fundamental questions to constitutional systems in general, the principle of separation of powers and democratic legitimacy in particular. The assessment of the validity of a State’s consent to be bound by provisional application of a treaty or parts of it should be based on the norms of the constitutional law of the State concerned. a different approach, when international law is interpreted in isolation from the domestic constitutional requirements, results in dysfunctional outcome and imputation of consent to the State bypassing the necessary constitutional procedures. In accordance with the Constitution of the Russian Federation, the powers of the President and the Government related to provisional application of treaties are not absolute. They should be exercised within limits provided by chapters first and second of the Constitution. Decisions of fundamental importance, including transfer of some of the sovereign powers to the international level, creation of alternative to national courts dispute resolution procedures, expressing consent to the jurisdiction of international investment arbitration cannot not be made without ratification and legitimation by the legislative body of the Russian Federation.
Keywords: provisional application of international treaty, relation of internal and international law, international investment arbitration, Energy Charter Treaty, interpretation of international treaty
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A.E. Shastitko, K.V. Dozmarov Сriminal Law in Antitrust Is Good Place for Law and Economics Rendezvous
Based on the analysis of the interpretation of the provisions of Article 178 of the Сriminal Сode of the Russian Federation, the authors propose to abandon the exclusively formal legal approach in the criminal segment of antitrust and move to an interdisciplinary discourse between law and Economics. The authors assess two controversial aspects in the application and interpretation of Article 178, namely prohibition per se and restriction of competition as a necessary ingredient of an illegal act, as well as the calculation of criminal income.
Keywords: cartel, subjective imputation, excessive revenue, competition restriction, criminal liability for restricting competition
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O.P. Pleshanova Bankruptcy of Person Who Has Caused Environmental Damage: Problems of Compensation for Harm
The article examines the possibility to collect the compensation for environmental harm from the person who has caused this harm and has gone bankrupt. In particular the issue is being considered if the person responsible for the environmental offense can avoid the payment of compensation by way of the bankruptcy. Problem of the debtor’s controlling person liability is also in focus. The principal problem is that the Russian Bankruptcy Law does not provide any special rules for the claims relating to environmental protection. According to the author it would be more effecient for such claims in bankruptcy cases to be based on the so-called “Pro-Civil Concept” of the property liability and compensation for environmental harm.
Keywords: environmental harm, bankruptcy of the person responsible for the environmental harm, compensation for environmental harm, environmental legal responsibility, tort liability
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A.S. Vlasova, N.M. Udalova Nominee Participant of a Limited Liability Company
The article focuses on the analysis of nominal participation in LLC. Despite the lack of legal regulation, the question of nominal participation in this type of corporate organisation arises periodically. The analysis of court practice led to the conclusion that the essential characteristic of nominal participation in LLC is the lack of economic purpose in acquiring participatory shares in authorised capital. The courts may investigate the following external manifestations of the lack of purpose: ignorance of legal entity’s activities, remuneration for registration as participant or founder of organization, “mass” character of participant, etc. On the one hand, there is no prohibition of such actions in the Russian legislation, but, on the other hand, the authors assume that nominal participation should be assessed in the context of unfair behavior. This is due to the fact that the presence of a nominee participant presupposes the existence of an actual participant who hides behind the nominee and manipulates him, thus misleading third parties interacting with the legal entity. Consequently, it is necessary to limit the improper use of a legal entity.
Keywords: nominee participant, actual participant, real participant of a corporation, aim of participation in a corporation, rights and obligations of corporation’s participant, mass participant (founder), subsidiary responsibility of nominee participant
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V.O. Kalyatin Problems of Establishments of Rights to Results of the Collective Creative Activity in Employee Relationships
Substantial part of intellectual property is created as employee’s works by big collectives. However, due to possibility that rights to the intellectual property may belong to different persons, this creates risks for rightholders and users. Complicated problems exist also in the sphere of collision regulation. In the article typical problems of organisation of work for creation of intellectual property are discussed (joint or separate creative work, joint creation of intellectual property by employees of different companies, etc.). The author analyses possible decisions of these problems and suggests ways to minimise possible risks.
Keywords: intellectual property, copyright, patent law, employee’s relations, collective creative work, exclusive rights, moral rights, international private law, conflict of laws
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T. Giaro Roman Law Always Dies with a Codification (Introduction by D.O. Tuzov, A.Yu. Zezekalo)
The paper is focused on four prominent stages in the evolution of Roman law on the European continent. These are designated as four lives of Roman law. Firstly, ancient law, which reached its highest point during the Principate and declined after its codification, carried out by Justinian (528–534 AD). Secondly, the period of the old ius commune, closely associated with the phenomenon, which took place in medieval Europe and is known as the Reception, which continued until the emergence of the natural law codes. Thirdly, heyday of the German pandectist legal science, which lasted until the beginning of the 20th century and, finally, the new ius commune, which can be associated with the processes currently taking place in the European Union, in particular, the Europeanisation of national legal orders, which gave rise to discussions about the new common law of Europe and, moreover, actualised extra-governmental mechanisms of law making, very much reminiscent of the methods of Roman jurisprudence. The author argues that Roman law has always been adapted to the changing face of Europe, respectively experiencing its own ups and downs, but at the end of the day it has always died with a codification.
Keywords: Roman law, Reception of Roman law, Corpus Iuris Civilis, ius commune, Europeanisation of private law
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