ВЫЙТИ ИЗ ТУМАНА МЕТАФОР, ИЛИ ОТВЕТСТВЕННОСТЬ КОНТРОЛИРУЮЩЕГО ЛИЦА ПЕРЕД КРЕДИТОРАМИ КОМПАНИИ
The article is devoted to theoretical and practical issues of veil piercing and enterprise liability. The author
concludes that limited liability principle is to be respected and controlling shareholders are to be subsidiary liable
for the company’s debts only in case of their fault. To support this thesis the author refers to the principle of
value maximisation of production and considers company as a tool for decreasing uncertainty of the future.
This article is devoted to the content and interconnection analysis of the categories «interest» and «entrepreneurial risk». The logical connection analysis of the categories is carried out by using not only the theoretical point of view, but also the practice of application.
Using the model of a limited liability corporation is fundamental to the modern economy, providing not only the opportunity to make long-term collective investments, but also, in total, to effectively engage in economic activities. Therefore, the deprivation of the "corporate shield" is permissible only in exceptional cases and should be based on objective criteria.
It is justified to bring controlling persons to direct property liability to creditors of a legal entity when they using the legal entity as a tool for unlawful activities, including for misappropriation creditors’ property.
The discrepancy between the content of economic relations and their legal form is observed when using conduit companies, which in fact act not as investors, but as trustees. Therefore, the responsibility of the beneficiaries of such companies is logical to consider as the responsibility of the founder of the trust (Paragraph 3, Article 1022 of the Civil Code of the Russian Federation).
The joint liability of the main company established by paragraph 2 of Article 67.3 of the Civil Code of the Russian Federation for the obligation of the subsidiary prevents the normal distribution and limitation of investment risks. It is advisable to replace this type of liability with the joint liability of the group members having a single enterprise (paragraph 1 of Article 2, paragraph 3 of Article 401, paragraph 2 of Article 1047 of the Civil Code of the Russian Federation).
A highly acclaimed result in contract theory is that tournaments are superior to piece rate contracts when the agents are risk averse and their production activities are subject to a relatively large common shock. The reason is that tournaments allow the principal to trade insurance for lower income to the agents. Our analysis shows that this celebrated result does not carry over to the case when a limited liability constraint limits the payments the principal can make, provided that the liquidation value of the firm is sufficiently small. This finding has important implications for the vast number of limited liability firms. Tournaments are still optimal when the liquidation value of the firm is intermediate or large, even though the limited liability constraint is still binding for intermediate values. Surprisingly, uncertainty in the price of output strengthens the need for tournaments by expanding the range of liquidation values over which tournaments are optimal, because price uncertainty introduces additional bankruptcy risk.
The author grounds the thesis on that when establishing the amount of subsidiary liability in bankruptcy cases the property status of the subsidiary debtor has to be taken into consideration. The relevance of an interim order institute is substantiated in the article.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/