Журнал ЗАКОН

Case Comment to the Judgment of the Judicial Chamber for Economic Disputes of the SC RF No. 308-ЭС24-2859, 8 July 2024 Based on the judgment of the SC RF, the author analyses the institution of the right to demand the buyout of shares in the adoption of certain corporate decisions, identifies the political and legal meaning of granting a shareholder in certain cases the right to demand the buyout of his shares and concludes that this right is the result of a compromise between the rights and legitimate interests of a minority shareholder and the company itself. The article emphasises that the granting of this right to shareholders is an exception to the general rule on the capital stability of a joint stock company, established to ensure the interests of creditors and the stability of civil turnover, therefore, like any exception to the general rule, it should not be interpreted broadly. The author comes to the conclusion that in order for the right to demand the redemption of shares to arise, the decision of the general meeting should not be approved as a major transaction, but only one that fully meets the criteria of major transactions and at the same time is not imaginary or otherwise null and void. In this connection, to reveal the existence of the shareholder’s right to demand the redemption of shares it is not enough to establish the formal composition in the form of decision-making on the approval of the transaction (consent to the transaction) and voting against or non-participation in the meeting, it is also necessary to assess the substance of the transaction itself, the approval of which is in question.

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Keywords: major transaction, shareholders’ rights, right to demand buyout of shares, joint-stock company, void transactions

The category of intra-group interest has an interdisciplinary character and requires the development of some common approaches for various branches of law. The objection of the party to the dispute about the common interest of the group requires the court to perform an economic analysis of transaction structures and business relationships, as it cannot be recognized as an established fact otherwise. The group’s interest is rooted in the interest of the beneficiary (or multiple controlling persons), which is why the group is determined through the identification of a specific beneficiary. The realization of such an interest with damage to subsidiaries is compensated in the form of compensation by controlling persons for losses, subsidiary and joint liability. This does not rule out an alternative approach, where the subsidiary operates with full autonomy, making references to intra-group interest inapplicable.

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Keywords: beneficiary, intra-group interest, contesting transactions, holding, responsibility of controlling persons, economic analysis, subsidiaries, parent companies, corporate group

The paper examines the economic concept of intentional tort elaborated by W.M. Landes and R.A. Posner, namely, how the authors of the concept propose to describe the injurer’s intent analyzing the losses and benefits from injuring the victim. American scientists seek to distinguish between the intent and negligence solely by analyzing the losses and benefits from the tort, since, in their opinion, the injurer’s state of mind is a useless category for tort law. In this regard, according to the economic concept of intentional tort, the injurer’s intent is manifested either in the fact that the injurer expends real resources in order to injure the victim, or in the fact that there is a large gap between the expected accident costs and the costs to the injurer of not committing the tort. Based on the results of the analysis of the concept, the author of the paper comes to the conclusion that, without establishing the actual injurer’s state of mind, the economic concept of intentional tort does not allow distinguishing between intent and negligence. At the same time, followers of the law and economics failed to create a concept that exhaustively defines the criteria for evaluating a person’s behavior as lawful or unlawful, since in many cases the fact of expending real resources to injure the victim is insufficient to qualify an action (inaction) as intentional.

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Keywords: intent, intentional tort, negligence, Hand formula, economic analysis of law

This article considers the grounds of liability of a trustee under a property trust management agreement. In the author’s opinion, the presence of property losses in case of compliance by the trustee with its duties to show due care for the interests of the beneficiary or the founder of management indicates the absence of grounds for bringing the trustee to liability for the recovery of losses from him (para 1, clause 1 of art. 1022 of the Civil Code of the Russian Federation). In such a case, para 2 of clause 1 of art. 1022 of the Civil Code of the RF devoted to the release of the trustee from liability for losses caused by force majeure or actions of the beneficiary or the founder of management, is not subject to application in principle, since there is no wrongdoing on the part of the trustee, which places the risk of property losses related to the assets under trust management on the owner of the property (the founder of the trust).

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Keywords: trust management of property, failure to exercise due care, liability, compensation of losses

The article deals with theoretical and practical aspects of the neutrality requirement to arbitrators, which is becoming increasingly important in international arbitration, especially in disputes related to unilateral sanctions and countersanctions. Among other things, the authors examine the doctrinal content and correlation of this requirement with traditional tools for assessing arbitrators’ bias in the form of independence and impartiality, as well as the difference between national neutrality and cultural neutrality and the possibility of distinguishing personal and ‘jurisdictional’ neutrality of an arbitrator. The authors conclude that the individual attitude of a particular arbitrator towards the parties to the dispute, rather than the arbitrator’s nationality, domicile or other institutional characteristics, should be determinative, while maintaining a presumption of the arbitrator’s neutrality. Under such an approach, a person who claims to the contrary must provide concrete evidence to substantiate such person’s doubts, rather than merely referring to an arbitrator’s affiliation expressed in the arbitrator’s nationality, domicile, religion or ethnicity. The opposite approach, which is beginning to emerge in Russian court practice, is, in the authors’ opinion, unreasonable and short-sighted. On the contrary, it seems more reasonable to apply stricter tests of bias with a heightened standard of proof and not to automatically identify the arbitrator with the policies or values of the arbitrator’s state of nationality or domicile.

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Keywords: neutrality of arbitrators, independence, impartiality, sanctions, bias

New legal positions of higher courts are by default retroactive, i.e. they apply to legal relations that arose before the introduction of the new rule. However, in a number of cases, when the highest court gives a rule a new and unexpected interpretation or cancels its previous established judicial practice (precedent), retrospective application of the new rule may violate the reasonable expectations of the participants of turnover to the previous legal position of the highest court. The article analyses how the leading legal orders solve this problem, in particular, their attitude to the doctrine of prospective overruling, and also provides suggestions under what conditions it is advisable to apply a new legal position only prospectively.

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Keywords: prospective overruling, limitation of retroactive force, judicial law-making, judicial precedent, sources of law, legal certainty

Contractual subordination is known to many foreign legal orders. Article 309.1 of the Civil Code of the Russian Federation also provides for the possibility of concluding an intercreditor agreement on the order of satisfaction of their claims against the debtor, including the priority of their satisfaction and disproportionate distribution of performance. This paper studies the legal nature of intercreditor agreements with a subordinating character, peculiarities of the mechanics of its functioning. The economic prerequisites justifying the demand for contractual subordination (including project financing) and the availability of this institution’s securing function have been analysed. Taking into account that the economic motives of contractual subordination are primarily conditioned by the possible insolvency of a common debtor of several creditors, special attention is paid to the enforceability of intercreditor agreement in case of debtor’s bankruptcy; the current law enforcement practice on this issue is also analysed.

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Keywords: contractual subordination, intercreditor agreement, quasi-collateralisation, project finance