ARCHIVE FOR 2023 RUSSIAN
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Февраль 2023
CONTENT
Sofya Filippova, Irina Shitkina The Fate of Shares Held by a Shareholder Who Has Lost Legal Capacity Case Comment to the Judgment of the Chamber for Economic Disputes
of the SC RF No. 304-ЭС22-10636, 15 December 2022
The authors analyse the legal positions of the Supreme Court of the Russian Federation regarding the possibility
to apply the institute of ownerless property in relation to shares held by a liquidated legal entity, and assess the
existing draft laws that are supposed to solve the problem of ‘lost’ shareholders. It is argued that the existing
problem cannot be solved by courts and requires the intervention of the legislator. The authors offer the
professional community solutions to the problem of ‘lost’ shareholders.
Keywords:
corporate law, joint-stock company, legal capacity, ownerless property
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Eduard Bershitskiy Limitations on the Transfer of Creditor’s Rights in Obligations Based on Value Judgments: in Search of Criteria (Part 1) The article analyses the limitations on the transfer of creditor’s rights in obligations based on value judgments in
Russia and other jurisdictions. It’s time to find out what’s behind such cryptic euphemisms as ‘an inextricable link
with the personality of the creditor’ (art. 383, art. 1112, para 2 of the Civil Code) and ‘the essential importance of
the creditor’s personality for the debtor’ (art. 388 para 2 of the Civil Code), to develop a nuanced criteria for these
restrictions of the transferability of claims, and find out whether it is generally advisable to keep these restrictions
in the current form. At the same time, we should also consider the question of the legal consequences of the
breach of limitations on succession.
The first part of the article contains a brief description of foreign and Russian models of regulation of estimated
restrictions in the assignment of rights of obligation on the creditor’s side (Chapter 1) and an analysis of those
restrictions which are designed to protect the creditor on the liability claim (para 2.1–2.2 of the Chapter 2).
Keywords:
the law of obligations, assignment of rights, singular succession, value judgment
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Ayk Kerselyan Concluding a Contract at a Tender: A Civil Law Analysis of the Structural Elements The article analyses one of the most important issues in tenders — the moment of contract conclusion — from the
viewpoint of private law. The author argues that the current regulatory framework contains several deficiencies
(possibility for the winning bidder to avoid entering into a contract, the mechanism of invalidity of a voluntary
tender) that impact negatively the bidding process. This explains why the attention should be paid to other models
of contract conclusion, the pros and cons of which are analysed in the paper. The article also examines the cases
of mandatory bidding which have special features attracting distinct regulatory rules. Separate consideration is
given to special cases which involve a contradiction between different applicable rules, such as when a statute
requires that a contract which was bid for should be concluded in a form of a single written document, or when
the contract needs to be notarised.
Keywords:
contract law, contract, tender, conclusion of a contract
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Evgeniya Domshenko (Chervets) Change of a Corporation’s Domicile and Its Effect on a Pledge of Its Shares The article examines the legal effect that the redomiciliation of a company has on the pledge of its shares. It is
submitted that that the pledge should follow the company, which means that it should burden the shares of the
new company in the jurisdiction of the new domicile. The redomiciliation is not the ground for cessation of the
pledge. The article argues that the validity and the creation of the pledge as a property right should be determined
by the law of incorporation of the company, and the realisation of the pledge should be carried out in accordance
with the law of the jurisdiction to which the company is redomiciled. It is also shown that in order to realise the
pledge (i.e. sell the shares) in Russia one should register it in accordance with the Russian legislation. It could be
done on the following grounds: by parties’ agreement concerning the shares of the redomiciled company; on the
basis of an agreement concluded before the redomiciliation in accordance with a foreign law; on the basis of a
judgment of a Russian court that recognises the right of the pledge arising out of a pledge agreement concluded
beforehand in accordance with the foreign law.
Keywords:
corporate law, domicile, pledge, shares
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Philipp Luchkin Grounds of State Tort Liability The article examines the reasons for imposing a duty to compensate losses on the state. This analysis is done
to formulate and resolve the problems faced by theory and practice. In particular, the concepts of guilt and
wrongfulness are analysed, concluding that they are matters of legal assessment which cannot be proven in court
proceedings. The author argues that the abundance of value judgments to which the analysis leads indicates that
the problem lies in the incorrect framing of the issues in the existing literature.
Keywords:
tort, restrictions on the rights, state, wrongfulness, guilt, jury
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