ARCHIVE FOR 2024 RUSSIAN
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Апрель 2024
CONTENT
Ivan Chuprunov Representative Claim by an Indirect Shareholder of a Corporation Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF
No. 305-ЭС23-13487, 16 November 2023
The article provides analysis of the position taken by the Chamber for Economic Disputes of the Supreme Court of
the Russian Federation in its ruling of 16 November 2023 No. 305-ЭС23-13487 regarding admissibility of bringing
so-called representative claims in defense of a corporation by persons that are not its direct participants. On the
basis of this analysis, as well as in the light of the arguments expressed in the Russian scholarship, the author
shows that the cautious admission of such claims by the highest court is generally the right approach, although
it requires further elaboration on a number of more special problems (in particular, concerning its application to
foreign companies, including from the point of view of the applicable law).
Keywords:
corporate law, representative claim, indirect claim, multiple indirect claim, invalidation of transactions, recovery of damages from a director
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Tatiana Dragunova Reinsurance: Independent or Accessory Obligation? Approaches in English and Russian Law The article is devoted to the study of the essence of the obligation under the reinsurance contract and the nature
of its interrelation with the insurer’s obligation under the original insurance contract in the English and Russian
legal systems. The author uses comparative legal methodology, comparing doctrine, legislative regulation and
case law in England and Russia. According to the results of the study the author concludes that reinsurance is the
reinsurer’s obligation to indemnify the reinsured, the reinsurer’s obligation has a security causa and is accessory
to the original insurance contract.
Keywords:
reinsurance, insurance, indemnity, accessoriness, linked obligations, security, English law
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Ivan Tebenyov Form of Transactions and Identification of Parties in E-Commerce (Part 2) The article continues the author’s research into the problem of identifying the parties to transactions made by
electronic communication means. The second part provides an overview of the relevant amendments to the Civil
Code of the Russian Federation in 2019 and analyses the judicial practice of the Supreme Court of the Russian
Federation in the relevant area. Some proposals are made from the de lege ferenda position — both in terms
of improving the text of the Code and further development of judicial practice, including the author’s concept of
the optimal algorithm for resolving court disputes related to difficulties in identifying the parties to transactions in
‘electronic form’.
Keywords:
electronic commerce, electronic form of transaction, electronic signature, identification of parties to a transaction, visibility of law, evidentiary law
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Vladislav Kostko Balancing and ‘Jurisprudence des petits cochons’ The further exploration of the concept of balance, and the variants of its application in different legal systems
led us to conclude that the practice of balancing in the Supreme Court of the Russian Federation (SC RF) is
most similar to the French concept of what is known as the super-credit: it is also allowed always, if it concerns
related claims, regardless of the compliance with the conditions of the usual offset, but at the same time is just as
unclear as in our practice. The study of its application confirms our thought about the possibility and necessity of
forming our own concept of balancing. In this regard, the author points out the fallacy of complete identification
of the German concept of Saldotheorie with the concept of balancing applied in the practice of the SC RF. The
arguments in favour of the securing function of the offset, and even more so its consideration as a pledge, are
critically assessed.
Keywords:
related claims, connexity, offset, atypical offset, balancing, principle of equality of creditors (pari passu, pro rata), deduction, bankruptcy, invalidity of transactions
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Ilia Shevchenko On Bringing to Subsidiary Liability of Public Law Formations on the Obligation of their Enterprises and Institutions The author insists on that public law formations shall be responsible for fulfilling a public unitary enterprise’s
obligations regardless of considering its actions unlawful. When the state bears responsibility only for the
obligations of state institutions (not budget and autonomous institutions) and obligations of state enterprises, this
is an example of unjustified preferences created by the state. Unitary enterprises are institutionally and operatively
not independent enough to exclude a state’s responsibility on its obligations.
Keywords:
subsidiary liability in bankruptcy cases, state and municipal unitary enterpriseses, state and municipal property, public formations
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