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.
Author analyses the amendments to Arbitrazh Procedure Code of the Russian Federation passed in 2020 and which introduced in the Russian legislation some new procedural tools to resolve the conflicts of jurisdiction between Russian courts and foreign courts and arbitrations in the disputes where sanctioned subjects are involved. Although some experts opined that the provisions could have negative impact on the investment climate, the author supposes that these new norms could stimulate the development in Russian law of important procedural instruments, already existing abroad, including anti-suit injunctions, the concept of inoperative jurisdictional agreement, etc. Moreover, it is important to consider the access to justice idea from different angles including not only constitutional and international public law but also international civil procedure and international arbitration. The amendments could also help to comprehend some other procedural categories, which assist in resolving of jurisdictional conflicts, including forum non conveniens. Thoughtful national position on these and other issues of transnational procedure, based on the real court practice, rather than on abstract considerations, may secure the long-standing interests of the Russian citizens and companies in the international law realm.
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
There are two possible normative grounds for the restitution of profits from an unlawful possessor of the thing to its owner. First is the special rules on distribution of profits in case of vindicatio (article 303 of the Russian Civil Code). The second is the rules on unjustified enrichment. These two regimes do not fully coincide. On the one hand, they are quite similar in the regulation of disgorgement of profits. On the other hand, article 303 seems to provide more suitable regime for the compensation of money saved by the unlawful possessor. The recent judgment of the Supreme Court, which is commented in this article, confirms the priority of article 303 of the Russian Civil Code in the situation when the property is leased out by the unlawful possessor. It also highlights some special rules that apply to the claim by the owner to the unlawful possessor.
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 recent years, the Chamber for Commercial Disputes (‘Commercial Chamber’) of the Supreme
Court of Russia has actively been developing its approach to the limits of the creditor’s claim for
specific performance of an obligation. One of the key obstacles for this claim is that the performance
is no longer possible (the doctrine of impossibility of performance). Since 2016, the Commercial
Chamber has several times approached the issue of how the impossibility should be defined. This
comment outlines various concepts of the impossibility, explains their practical consequences and
compares them with the Supreme Court’s approach.
The judgment under comment considers the issue of whether contracts to rent out the same real
property object (or a part of it) to different persons are voidable. For many years, the courts have
been persistently declaring void the contract for leasing the same property that had already been
rented by another person. In this judgment, the Supreme Court emphasizes that that this position is
erroneous as it contradicts the rules of the Civil Code of Russia and the authoritative position of the
Supreme Court itself, as well as views expressed by scholars.
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.