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Февраль 2022






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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