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Май 2021





Ivan Stasyuk Subsidiary Liability of a ‘Profit Concentration Centre’ Company
Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC No. 310-ЭС20-6760, 25 September 2020 The author examines the Supreme Court’s ruling in the UGMK Rudgormash case and concludes that the status of a controlling person is not a prerequisite for subsidiary liability. If a person has led a debtor to bankruptcy through his wrongful actions, he will be liable for the debtor’s debts even if he does not have control over the debtor.
Keywords: subsidiary liability, controlling person, beneficiary
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Sergey Budylin Rubbish Advertising and a Fickle Tenant. Does the Contract Terminate When You Unilaterally Withdraw from It?
Comment on the Case White and Carter (Councils) Ltd v. McGregor [1961] UKHL 5 and on the Judgment of the Chamber for Economic Disputes of the RF SC No. 305-ЭС20-4196, 26 June 2020 57 The article discusses the positions of the highest courts in England and Russia on the possibility of terminating a contract by unilateral expression of will. As a general rule, a party to a contract does not have such right: termination of contractual obligations, as well as their creation, requires the consent of the parties. If the contract remains in force, the other party can still enforce it and collect its losses as they arise. However, in some situations — for example, where the contract requires the active participation of both contracting parties — the courts will recognise the contract as terminated in its essential part immediately after a party expresses its categorical refusal to perform. The other party may then recover its damages for breach of contract, calculated on the basis of the mitigation requirement.
Keywords: lease, termination of a contract, damages, England, Russia
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Alexander Kuznetsov Principle of Сontinuity of Participation in Reorganisation
The article reveals the meaning and basis of the principle of continuity of participation in the company during reorganisation, which implies that a participant (shareholder) of the reorganised company acquires the status of a participant (shareholder) in the company created by the reorganisation or in the company to which the merger occurs, depending on the type of reorganisation. The study concludes that the principle of continuity is one of the main guarantees of the rights of the participant (shareholder) protecting him/her from exclusion from the participants (shareholders) in the course of reorganisation. At the same time, the possibility of derogating from this principle in respect of minority shareholders of PJSC, should be recognised when this is provided for in the conditions of reorganisation, approved by the owner of the super-majority block of shares, and such minority shareholders will be paid the market value of their shares.
Keywords: participation continuity, reorganisation, protection of participants’ rights, exclusion of participants (shareholders)
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Daria Petrova Subsequent Change of Circumstances and Its Influence to Contractual Obligations in the Russian Law: Political and Legal Perspective and Relevant Issues of the Jurisprudence of Courts
The article provides complex legal analysis of the clausula rebus sic stantibus under the Russian law. The author looks at political and legal perspectives of the doctrine of subsequent fundamental change of situation, as well as analyses the provisions of the actual Civil Code defining cases of change of circumstances occurred after the formation of contract and its consequences. The article explores legally relevant features of circumstances which lead to termination (alteration) of a contract due to significant change of circumstances, its content under the Russian doctrine and relevant jurisprudence of courts. In particular, it considers the problem of correlation between entrepreneurial risk and risk of significant change of circumstances as well as the contents of the criteria of irresistibility of significant change of circumstances. The author analyses also the consequences of significant change of circumstances in Russian law.
Keywords: contract, obligation, significant change of circumstances, termination of a contract, alteration of a contract
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Mikhail Zhuzhzhalov Article 66.1 of the Civil Code: Is It Just Numerous Flaws or One Big Mistake?
Since the introduction of Article 66.1 of the Civil Code, which strictly limited the list of ‘contributory’ property, equally for all corporations and regardless of industry, it has attracted no more attention than before its adoption. This is because the usual contributions to property remain money and things. Nevertheless, even the rare cases in which the article has been applied by the courts show that the regulation is very controversial, both in terms of drafting and because it originally went with other legislative proposals which did not pass muster. In addition, in the author’s view, it is based on a completely false understanding of share capital. This renders the regulation meaningless, but in any case a serious revision of the content of the analysed article is required. The author also raises the question of the constitutionality of the provision.
Keywords: share capital, contribution to property, object of civil rights, corporate law
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Ivan Tebenyov, Diana Chukturova Practice in the Application of Article 450.1 (5) of the Russian Civil Code on Confirmation of Contract as a Basis for Blocking the Right to Withdraw from a Contract
The article analyses the approaches developed in arbitration courts’ practice in applying the rule blocking the right to withdraw from a contract (article 450.1 par. 5 of the Civil Code) during the five years since its introduction. Much of the paper focuses on determining the scope of this rule by conducting a detailed analysis of its applicability to certain situations (judicial termination of the contract, the continuing breach of a contractual obligation, postcontractual relations). In addition, the authors investigate the understanding of the nature of the rule, as reflected in judgments, and structures various forms in which a waiver of contractual right to terminate can be expressed.
Keywords: termination of a contract, relinquishment, estoppel, subjective right
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