Among the amendments included in the fifth antitrust package, most questions and objections were raised by
the trustee provision, since this instrument was never used and approached by experts or practitioners in Russia.
The article analyses the functions and obligations of monitoring trustees and the tasks that they have to perform.
The facts, examples and expert views presented in the article show a widespread and systematic use of trustees to ensure the effective implementation of remedies in complex cases, primarily in mergers. Particular attention is paid to the role and importance of trustees in antitrust cases involving the digital economy, where it is necessary to provide access to information and data, to ensure transfer of technology and the use of intellectual property rights.
The article is devoted to contractual models, designed to formalise the legal relationship between the clearing members (parties to original derivative transaction) and the CCP. The author deals with legal concepts of novation, so-called “open offer”, cession (assignment), which are commonly used in international practices. Taking into consideration some Russian legal peculiarities and comparative lawexperience, the author comes to the conclusion that theconcept of assignment is much more preferable for theRussian derivatives market.
The article deals with legal ways of resolving uncertainties and opportunism in distribution of company profits. The author comes to a conclusion that it is impossible to create a one-size-fits-all formula of dividend payment usable in courts in resolving disputes. Purchasing shares (a share in authorised capital) and acting reasonably an investor intends to get his investments back over a planning horizon provided successful activities of a company. To do that he is given a combination of options: receive dividends, sell shares or get a liquidation quota. The difficulties of objectivisation of profit distribution in successful activities of a company should be offset not by expansion of judicial discretion in disputes over dividend payments, but by legal mechanisms providing share buyouts if there are no dividend payments.