This article analyzes the pros and cons of choosing a “negative” or “positive” contractual strategy in a crisis environment.
The authors draw attention to the difficulty of making an appropriate decision and the need to take into account many factors. In particular, on the basis of the provisions of legislation and judicial practice, it is concluded that in order to apply to the court with any requirement (terminate the contract, seek of penalties, establish the impossibility to perform obligation or a substantial change in circumstances), evidence of pre-trial settlement, manifestations of cooperation and good faith will be required. Otherwise, there is a high probability of either a refusal to consider the claim or a refusal to satisfy the claim on the merits.
In addition, a refusal to discuss concessions can be used to justify in court a counterparty’s dishonesty and abuse of the situation, a court decision may be not enforceable, and the debtor may go into bankruptcy. Force majeure is not a panacea and only in exceptional cases relieves from liability for non-fulfillment of an obligation, but not from fulfillment of an obligation itself. In any case, it is necessary to collect in advance the evidence base of the extraordinary and unavoidable impact on specific obligations of restrictive quarantine measures and evidence that the parties have taken all possible actions to reduce losses.
Therefore, according to the authors, in some casesa maintaining the old relationship on the changed terms is more profitable than looking for a new counterparty, since the conclusion of a new contract during the crisis and after it means taking on higher risks of its unfulfillability.
The author adresses the first issues confronted by the courts while considering consumer bankrupty cases. THe following questions are analysed in the article: what summ of money is enough to finance the expenses of conducting a consumer bankruptcy case; when can a court introduce the procedure of debtor's property selling passing the debt restructuring procedure; setting the order of property allienation when the debtor is married; on the applicability of point 3 of article 137 of the Federal Law of 26/10/2002 # 137-FZ "On Insolvency (Bankruptcy)" in the process of determining the priority of creditors' claims.
The auther analyzes the evolution of the Supreme Court's of Russian Federation practice of considering in bankruptcy cases claims of creditors based on inter-corporative (inter-group) relations, including loans that cover up financing of authorized capital of a debtor organization, and compares it with the development of German law and court practice of credotors' claims subordination. It is argued that the practice of considering of a creditor's and debtor's relations as inter-corporative will widen up to more numerous cases.
The author states that when the court considers the question on the introduction of the observation procedure (bankruptcy) it pursues the goal to exclude insolvent trading on behalf of the debtor rather than satisfies the interest of a separate creditor. It is emphasized that the court shall apoint as an arbitration administrator the candidate proposed by an indepedent creditor.
The authors discuss such problems of application of paragaph 4 of article 10 of the law "On Insolvency (Bankruptcy)" as the periods that various editions of this paragraph were in force, a proper person, that can be brought to resposibility, and procedural aspects. The end of the article contains a conclusion that the edition of analyzed paragraph, that is in force from 30.06.2013, didn't change significantly the previous court practice.
The up-to-date practice of the Arbitration Court of North-West Region and Thirteenth Arbitration Court of Appeal on adopting interim measures in separate disputes within bankruptcy cases is analyzed. In the second half of the article the Author shares his views on the legal nature and procedure of adoption of interim measures.
The Author analyzes two aspects of discovery of evidences: 1) timely presentation of evidence; 2) submission of evidence according to a court’s ruling, made on the request of the opposite party to the dispute. In the context of the first aspect it is concluded in the article that the court should be entitled to refuse the admission of evidence that is presented untimely. In the context of the second aspect the Author asserts that such a procedural sanction as loss of the dispute shall be applied to a party, that has refused to submit evidence claimed by the court.
The Author differentiates lawsuit proceedings and proceedings on establishing of claims in bankruptcy cases in two dimensions: 1) the division of claims into register claims and current claims; 2) inside register claims the question of when such claims can be considered in lawsuit proceedings is analyzed. The article is aimed at systematization of existing court practice on the question.
The Supreme Court of the Russian Federation New Guidelines on Bringing to Subsidiary Liability
The article discusses the ratio of two claims aimed at eliminating the registration in the Register of rights of real estate, a claime for the demolition of an unauthorized construction and a claim for recognizing the right as absent. The author concludes that these claims are mutually exclusive. This means that there are no situations in which the person concerned has the opportunity to choose any of these claims as an appropriate way to protect the right or to file these requirements at the same time.