ARCHIVE FOR 2024 RUSSIAN
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Ноябрь 2024
CONTENT
Valerian Mamageishvili On Subjective Good Faith of a Recipient of Representations and Legal Remedies Available to such Recipient Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF
No. 305-ЭС24-4207, 26 July 2024
In this article, the author analyzes the Russian Supreme Court’s judgment on the landmark case Vinnyj dom
Fotisal. The problem that arose in this case is whether a purchaser of shares has legal remedies for false
representations (in the meaning of art. 431.2 of the Russian Civil Code) by the seller if such purchaser knew that
representations were not true at the moment when he received them. It is noted that court practice developed an
implied obligation of purchasers to act with due diligence and in good faith. Non-compliance with said obligation
may leave purchasers with no legal remedies for false representations. The author reviews and challenges an
approach developed by the SC RF establishing the presumption of knowledge by ‘internal’ buyers about the facts
leading to the falsity of representations provided by a seller in a business transaction.
Keywords:
representations, product quality warranty, reliance on representations, standards of good faith, due diligence, proportionate reduction of purchase price
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Anton Ivanov Legal Regulation of Biometrics in Russia: Law and Practice In this article the author analyses the Law concerning collection of biometric personal data, their transfer to the
state system of storage (United Biometric System) and further usage of all participants. The notion of biometric
personal data (biometrics) and their differences from ordinary personal data are in the focus of the study.
Biometrics is also compared with the individualization of a citizen (person) in the civil law and digital identification
and authentication. The article strongly criticises the luck of special liability for losses of biometrics and damages
caused by wrong usage of biometrics. In addition, the author shows a conflict of interests among participants of
the United Biometric System which will lead to difficulties in its using and developing.
Keywords:
personal data, biometrics, identification of person, authentication of person, United Biometric System
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Vasiliy Laptev Quorum and Vote Counting of Meeting Participants: Legal Mathematics and Consequences of Errors Russian legislation contains many provisions on the procedure for determining a quorum and counting votes of
participants in a general meeting. The differentiation of approaches is due to the variety of organisational and legal
forms of corporate organisations, the specifics of sectoral regulation of relevant social relations (civil, corporate,
housing, etc.), the variability and discretion of emerging private law relations and other circumstances.
This article examines the provisions of legislation and approaches of judicial practice on the issues under
consideration. Legal mathematics is systematised when calculating quorum and summing up voting results
of participants at a general meeting, depending on the type of corporate organisation, the form of holding the
meeting (in person, in absentia, or mixed), the competent body of the legal entity, agenda items, circumstances
of decision-making, etc. The article overviews legal consequences of certain types of errors made in legal
practice.
Attention is paid to extraordinary cases in corporate practice in the face of modern challenges, including the
application of anti-restrictive (anti-sanction) law. Conclusions are drawn to eliminate legal uncertainty when
determining a quorum and counting votes of participants in the general meeting. Existing approaches to judicial
practice are demonstrated and ways of its development at the present stage are proposed.
Keywords:
corporate law, corporation, general meeting
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Ayk Kerselyan Tort Qualification of the Grey Area of the Law of Obligations: A Practical Analysis The article discusses the practical aspect of the classification of obligations in the gray zone, those that do not
fall under a clear division into contractual and tort obligations (pre-contractual liability, fiduciary responsibility,
responsibility of the arbitration administrator, guardian (trustee), expert’s liability to third parties). The author
evaluates the validity of the practical consequences of attributing these cases to tort law within the framework of
the Russian legal order. As an alternative, it is proposed to consider these legal relations as based on obligations
established in the law, arising as a result of close to transactional interaction, i.e. as quasi-contractual.
Keywords:
law of obligations, tort liability, pre-contractual liability, fiduciary responsibility
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Vera Aleynikova Alimony Agreement: Theoretical and Enforcement Aspects (On the Example of Spouses and Children) This article attempts to analyse from a theoretical point of view the approaches that have developed in law
enforcement practice with regard to alimony obligations of spouses and minor children arising on the basis of
agreements on the payment of alimony. In the course of the study it was established that the courts as a justification
for the payment of alimony for minor children point to the unconditional nature of this obligation: regardless of
the material and family situation of the parents, children are entitled to receive the necessary maintenance from
them. In turn, the alimony obligations of spouses (former spouses), the purpose of which is to restore the financial
independence (ability to work) of the spouse (former spouse), are based on the principle of proportionality of the
material situation of its parties. At the present stage, relations on the maintenance of minors and material support
of spouses may be established on the basis of documents other than an agreement on the payment of alimony,
which may be notarised.
When, in bankruptcy proceedings, alimony agreements and payments to relatives are contested on the basis
that they do not take into account debtor’s income, it is presumed that the alimony recipient knew that these
payments cause harm to bankruptcy creditors. The principle of prioritising the child’s right to a decent standard
of living over the rights of creditors to recover the debt has been established in relation to alimony payments for
minors. A reasonable amount of alimony for a minor child is determined not from a relative (percentage) indicator
of the amount of alimony agreed upon by the parties, but from an absolute amount, taking into account the needs
of a particular child.
Keywords:
family law, law of obligations, alimony obligation
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Margarita Klementeva Consultant Liability to Third Parties for Providing an Unreliable Opinion: The Experience of the German Legal Order In this article, the author analyses German approach to the civil liability of a consultant to third parties in cases of
providing them with misstatements. In particular, the article considers the doctrine of fiduciary liability of experts
developed by German lawyers as one of the civil liability forms. The author’s particular attention is paid to the criteria
developed in German judicial practice, which is a necessary condition to justify the liability of experts to compensate
for pure economic losses of third parties. At the end of the article, it is suggested that the German approach to
consultant’s liability to third parties could be adopted in the Russian law, as there is a general trend on increasing
number of such cases in courts.
Keywords:
law of obligations, losses, pure economic losses, professional liability, misstatement
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Alexey Akuzhinov Disgorgement of Profits of a Director and Its Affiliates for Breach of Fiduciary Duties (Part 2) The article is devoted to the political and comparative legal analysis (Russia and England) of the application of
disgorgement of profits in cases of breach of fiduciary duties by a director of a legal entity. The article consists of
six parts. The first three parts were published in the previous issue. The first half of the fourth part of the article
is published here, in which I compare disgorgement of profits in Russian and English law [IV]. In English law,
disgorgement of directors’ profits is a form of restitution for wrongs, as opposed to restitution for unjust enrichment,
and can be exercised through two forms of remedy: an account of profits and a constructive trust. The former is
a personal remedy, the latter an in rem remedy. In order to obtain disgorgement under English law, the claimant
does not have to prove that he has suffered any damage. In England, disgorgement of profits and damages
are alternative remedies [IV.A.(i)]. In Russian law, disgorgement of profits is a sui generis remedy and does not
require the plaintiff to prove damages [IV.A.(ii).(a)]. I argue for the cumulative rather than alternative nature of
disgorgement of profits to damages in Russian law [IV.A.(ii).(б)]. Finally, I insist that in Russia, disgorgement of
profits can only be sought through a personal claim and that a constructive trust cannot be applied in Russian law
[IV.A.(ii).(в)].
Keywords:
law of obligations, account of profits, constructive trust, disgorgement of profits, loss of profits, fiduciary duties
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