Based on contractual theory of corporation the author sees relations between a board member and a company as management service agreement, and remuneration is seen as consideration. The complexity of economic system makes it difficult to figure out “golden formula” to determine remuneration of board members which depends on the results of their activities. Consequently, it is advisable to determine the level of remuneration of board members taking into account the value of time spent by them. Since decision to pay the remuneration is the term of the contract between a company and a board member, to invalidate it para.2 art. 174 of the Civil Code of the Russian Federation should be applied using the presumption of obvious damage. Obvious damage, in the absence of proof to the contrary, is the excess of the remuneration level by twice or more of the value of similar services.
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.
The paper deals with the right of shareholders to require the company to purchase their shares. First, it considers arguments for and against share repurchase, also depending on whether the company is public or private. It further discusses how the repurchase right arises and how this right can be exercised. Finally, it analyses a range of issues such as types (or classes), amounts and prices of share repurchases.
Training new lawyers with stronger knowledge and skills is a crucial part of the development of Russian law. Professional legal education has to consider current needs and changes in the intellectual profile of prospective students, responding quickly by revising their curricula. It is time to improve instructional methods and examination formats by moving from memorising current statutory provisions and oral exams to problem analysis and written exams. Therefore, law schools and universities should have freedom of choice as to what to teach in order to ensure transition from competition among university names and traditions to competition among degree programmes.
The paper analyses the development of such phenomena as globalization of cross-border insolvency cases in Russia in their increasing complexity and multi-jurisdictional nature. A retrospective of westbound bankruptcies is presented by the cases of recognition of Russian proceedings in Western Europe and USA, where near-insolvent debtors frequently siphon off their assets and migrate themselves. The prospects for bankruptcies globalization in the Eurasian direction (into the EAEU states) are assessed in terms of three factors, including classical freedoms of integration, freedom of judgments’ movement, and access of foreign persons to domestic bankruptcies. For finding solutions, the author notes the importance of examining the extensive experience worldwide and cross-border insolvency regulation models throughout Europe, Latin America, Africa, and Asia.
Global constitutionalism is the influential theoretical construction consolidating the whole scope of interactive processes on the border of international and national law in formation of a new global transnational or supra-national legal and political reality. Hypothetically, the relative diminution of the role of national constitutionalism against its international counterpart paved the way for the growing role of international jurisprudence in constitutional matters. That development produces a new type of conflicts between international and national courts in the understanding of constitutionalism, its nature, and its role in a new cosmopolitan reality. The new conflict has its obvious representation in the new phenomenon of precedents of global or transnational law as opposed to precedents more traditional in nature. The author analyses the processes of integration and fragmentation in international constitutional law showing how the balance shifts between hard and soft law, traditional and new concepts of legal precedent and judicial activism regarding proportionality theory, the structure of the sources of law, transformative or transitional jurisprudence, and the growing polarisation of the multi-layered constitutional jurisprudence.
The research paper analyzes the results of recent decriminalization of family battery, summarizes the judicial statistics and foreign experience in combating domestic violence. The author claims that family battery should be punished more severely than battery against unfamiliar people, however the concept of “close person” used in the previous version of Art. 116 of the Criminal Code should be revised. The article concludes that punishment in cases of domestic violence is ineffective, since the courts often impose fines which are paid out of the family budget. The author agrees with the position of the European Court of Human Rights and the United Nations: domestic violence in Russia must be criminalized again and private prosecution in such cases is unacceptable. The article also summarizes the positive experience of restorative justice in cases of domestic violence.
The article examines three categories of directors in English and Russian corporate law. These include: de jure, de facto and shadow directors. Upon analysis of English case law, the author comes to the conclusion that there are two approaches to the understanding of de-facto directorship — a narrow one under which a de-facto director is a person who has not been properly appointed as a company’s director, and a broad one under which it is irrelevant whether there has been an act of election; what is important is whether a person has behaved as if (s)he were a director. It is the broad approach which gives rise to the problem of drawing a line between de-facto and shadow directorship. The article provides a comparative analysis of de-facto and shadow directorship with the notion of a controlling person in Russian corporate and bankruptcy legislation.
The key problem of the article is the formation, distribution and transfer of powers of sole Executive body of a business company. The author addresses such issues as the content authority, which are considered as a unity of rights, obligations and encumbrances, forming the competence of the body that realizes the capacity of a legal entity. Also the subject of analysis is the contract on transfer of powers of sole Executive body of the company and arising in connection with this problem of access to carry out an activity.