The article explains the accessory nature of security instruments. The author concludes that functional dependence (i.e. accessory nature) on the principal debt is the essential characteristic of any security instrument. That is why those legal instruments that, although aimed to secure obligations, do not have this characteristic should be named differently — e.g. security-motivated or security-oriented instruments.
The publication is devoted to the analysis of the legal decision of the Supreme Court. In this decision, the judges decided that the compensation due to the preliminary injunction shall be collected regardless of the guilt of the person who asked the court to apply provisional measures. The author notes that the analyte solution continues previously occupied by the Supreme Court approach: for example, in September last year, the judges decided that losses due to preliminary injunction should be collected in the absence of fault. Approach the Court corresponds to the practice of common law countries courts, which also recover damages from the preliminary injunction, regardless of the guilt of the plaintiff. According to the author, a real recovery of damages and compensation should be a guarantee against unreasonable demands on the preliminary injunction
The article comments on the corporate law issues in the recent Ruling of the Plenum of the Supreme Court of the Russian Federation No. 25 «On Application of Certain Provisions of Section I of the First Part of the Civil Code of the Russian Federation by the Courts», 23 June 2015. The authors reveal motives that underline position of the Supreme Court on various issues and demonstrate their connection with the ongoing large-scale reform of the Civil Code of the Russian Federation. Topics under discussion are, inter alia, such new institutes as the unrestricted authority of the director (CEO), derivative action, exclusion of a shareholder, winding-up remedy, corporate restructuring etc.
In the commentary below the legal nature of the execution fee is analyzed based on the example from the RF Supreme Court practice. In the author’s opinion the execution fee should be qualified not as the public sanction or the mean of enforcement, but rather as the pre-defined compensation of state expenses for the organization of the enforcement process, taking into account the place of the enforcement fee in the whole enforcement mechanism. Qualification of the enforcement fee in the mentioned way leads to the re-considering of the model of its application, explains the relevant approaches in the court practice regarding the exemption from the execution fee payment.
The article deals with the problem of expulsion of a shareholder from a limited liability company (LLC). Using the methodology of the contractual theory of the corporation and of the transaction cost theory, the author examines a relative relationship between a shareholder and LLC through «corporate contract». This allows for the rules of contract law to be applied to corporate relations, at least in the part consistent with their merits. Consequently, the author concludes that expulsion of a shareholder is neither more nor less than involuntary dissolution of «corporate contract». In dealing with a dispute, no ad hoc criteria can and should be applied for a shareholder’s expulsion, the court should rather be looking at the conditions settled by the parties to discover their factual will. Derogation from contract principles and substitution of the subjective value of shareholders’ preferences for the external, «objective» value should be treated as a violation of fundamental principles of private law. Both the minority and majority shareholders can be expelled for breach of corporate duty to LLC. While the right to sue (in material meaning) for a shareholder’s expulsion from LLC belongs to LLC, the shareholders filing such a claim in court will have rights and obligations of the plaintiff. The rest of the shareholders can support the asserted claims or join the suit as a third party, for judgment execution will affect their joint interests.
This article deals with exemptions from the rules stipulating the conditions and procedure for launching a mandatory bid as well as the consequences of failure to comply with this obligation. Each exemption has been assessed from the perspective of its policy justification. Apart from exemptions, the article also deals with grounds for release from a duty to make a mandatory offer.
On 1 March 2018 large scale changes to the Land Code of the RF have come into force. Among the other changes legislatures established a rule that publicly-owned land may be granted to a privet person for construction purposes through a tender only subject to several exceptions. The Supreme Court of the RF resolved commercial cases Nos. А41-13398/2016, А75-236/2016. The Supreme Court of the RF expressed its view on the situation when a tenant having land lease from the state started construction of a building on that land, but did not complete the building prior to the expiration of the lease-term. The Supreme Court of the RF ruled on how to deal with the unfinished construction located on the land which has been previously leased by the constructor and determined how this unfinished construction may be completed.
This article is an attempted to analyze afore mentioned court cases and positions of the Supreme Court of the RF thereon.
This article deals with the analysis of the legal regime of so-called quasi-treasury shares as well as the analysis of the economic-and-legal situation in which shares become quasi-treasury shares. The second part of the article analyses the recommendation to introduce a ban on voting quasitreasury shares provided for by the Road map for improving corporate governance approved by the Government of the Russian Federation. Moreover, the article contains a number of recommendations as to what should be taken into consideration in case of formulating the relevant legal norms on the basis of the recommendation set forth by the Road map.