ARCHIVE FOR 2022 RUSSIAN
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Февраль 2022
CONTENT
EDITOR’S COLUMN
Evgeniy Gavrilov Protecting the Reputation of the Ryzhiy Kot Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF
No. 305-ЭС21-14231, 24 November 2021
The judgment explains what should be proven to court by a legal entity seeking to protect its business reputation.
The author argues that courts should not require proof of actual business reputation of the claimant when he asks
for remedies consisting in declaring the information in question as untrue and obliging the defendant to publicly
refute it. This proof is necessary only when the claimant asks for compensation for the reputational damage. The
author criticizes some conclusions of the court in this judgment. Thus, it is wrong to think that the special standard
for proving compensation for reputational damage is aimed to calculate fair and proportionate compensation of
losses. Secondly, the court erroneously limits the scope of protection of business reputation. Some irregularities
in court’s use of terminology are also noted.
Keywords:
business reputation, proof, standard of proof, methods of protection
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Evgeniy Fokin Fake Changing of Jurisdiction: Discretion or Abuse? Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF
No. 305-ЭС20-23627, 22 April 2021
The article is dedicated to the procedural aspects of the artificial change of jurisdiction. In this case the
courts had to assess the integrity of the creditor who brought the claim at the location of a suddenly arisen
guarantor, not to the court at the debtor’s location. The courts came to opposite conclusions.
The article suggests that the discrepancies in the courts’ opinions reflect unresolved issues in judicial
practice. First, the criteria of the artificially changed jurisdiction formulated by courts are by no means perfect.
Secondly, the question of proving these criteria remains open: uniform approach for the establishment of
bad faith when plaintiff elects a court have not yet been developed. For this reason, the comment focuses
on the analysis of artificial change of jurisdiction from the perspective of evidentiary law.
The article concludes that there is no systematic approach in court practice to the issue of manipulation of
jurisdiction. On the one hand, the Supreme Court in the form of rulings of its Plenum has already expressed
some legal positions relevant in the circumstances of the case. On the other hand, the judgment in question
does not develop these positions and in some ways contradicts them.
Keywords:
jurisdiction, good faith, surety
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Artem Kukin, Olga Pleshanova, Vladimir Isaenko Pledge: Setting to Zero The article examines the legal consequences of some scattered amendments to the legislation on developers’
bankruptcy. Though these amendments are small in volume and hardly noticeable they have made it possible
to ignore the rights of pledge creditors. This is especially the case if claims of individuals — participants of
the shared construction scheme — are being satisfied by the special state company who buys out the building
under construction. The amendments have impacted the fundamental rules on pledge and pledgees’ status in
developers’ bankruptcy. Furthermore, the amendments are intended to be, and are in fact, applied retroactively
even though there are no clear provisions to this effect.
Keywords:
bankruptcy, share participation in the construction, pledge, temporal extent of legislation
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Ilya Papilin Execution of Obligations by a Third Party on Behalf of a Debtor in Bankruptcy Proceedings The article analyses theoretical and practical issues arising in connection with the third-party performance of
obligations on behalf of the debtor in bankruptcy proceedings. The article describes this situation, analyses its
features and problems arising in courts in connection with it in the most common procedures: supervision and
bankruptcy liquidation.
The analysis of the law and arbitrazh practice shows that the existing regulation of this problem is largely
haphazard and sometimes even contradictory. The articles argues that the problem of establishing claims of
affiliated debtors is resolved by inappropriate means, such as a ban on partial redemption of creditors’ claims.
Therefore, a comprehensive reform of the insolvency (bankruptcy) law is the main key to solving it. In particular,
a change in the basic approach, common in all bankruptcy proceedings and based on the prohibition of partial
repayment of creditors’ claims, is required.
However, as long as changes at the legislative level are not possible, it is up to the highest court to develop
a uniform jurisprudence that is in line with global trends on the issue.
Keywords:
bankruptcy, subordination of creditors’ claims, cramdown
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Irina Cherdintseva Freedom in the Allocation of Competence between the Governing Bodies of Non-Public Companies (Article 66.3 (3) of the Russian Civil Code) One of the paramount and most debated issues in setting up a joint venture based on a non-public company is the
distribution of competence between the management bodies. This close attention is due to the fact that identifying
a reasonable balance between the powers of the participants and management is a necessary prerequisite for the
efficient and continuous operation of any company.
Notwithstanding the non-triviality of identifying such a balance, it is necessary to develop a rather simple and clear
solution which would enable the participants to understand which issues may be delegated to the competence of
the board of directors and under what conditions. The paper analyses, among other things, possible problems in determining the allocation of competence taking
into account applicable law and the permissibility of transferring the most controversial issues of competence to
the competence of the board of directors (e.g., contributions to the property, distribution of profits).
The analysis leads to the conclusion that maximum freedom should be given to the participants when allocating
the competence, because such participants always have a whole range of mechanisms of both ex ante and ex
post control in relation to the board of directors.
Keywords:
corporate law, organs of a legal entity, board of directors, contributions to property in corporations, major transactions
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Nikolay Kashnikov Surety’s Reсourse: Reimbursement, Subrogation (Part 1) This first part of the article analyses the legal regulation of the surety`s recourse claim in Roman law, in the law
of European countries, as well as in Russian law starting from the pre-revolutionary period and ending with the
adoption of the Civil Code of the Russian Federation. The related topic of the solidary debtor`s recourse is also
touched upon.
Surety`s and solidary debtor`s recourse claim in Roman law were of a dual nature and could be enforced by
both reimbursement and subrogation. The burden of the debt was eventually evenly distributed among several
sureties, as between solidary debtors. These approaches were then adopted by European countries.
The article substantiates that since the norms of the Civil Code of the Russian Federation on surety`s recourse
basically repeat the corresponding norms of European countries, they can be interpreted in a similar way.
The article also proves that subrogation emerged as a way of recourse.
Keywords:
suretyship, reсourse, reimbursement, subrogation
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Pavel Praviaschii Security Transfer of Title not Envisaged by Law: A Study of the Jurisprudence of the Courts of General Jurisdiction Security transfer of title is often effected in ways not expressly provided by law, including through two contracts
of sale and purchase, sale and leaseback with buy-back, deeds of gift, etc. The paper presents the results of a
study of the general jurisdiction courts’ practice for the period from 2015 to 2021, as well as the legal positions
of the Judicial Chamber for Civil Cases of the Supreme Court of the Russian Federation on the following issues:
whether the courts recognise the legal transfer of title when it is executed in a way not provided by law; whether
the courts consider as valid transactions that formalise the security transfer of title; to what objects of civil rights do
parties transfer the title to secure the performance of obligations; which persons do act as creditors and debtors
of a security transfer of title? The results of the study lead to the conclusion that the direction in which the practice
is moving today must be changed. The author considers possible ways of developing the jurisprudence, among
which the best one is chosen.
Keywords:
title security, sham transaction, pledge
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