The article raises the question of determining the jurisdiction and applicable law for directors’ liability for the breach of insolvency-related duties: the problem is posed on a global scale, on a regional (European) scale, and in a more local Russian context. The emphasis is made on the experience of the European Union in resolving the issues. The author analyses the chain of cases from Gourdain to H. v. H.K. to Kornhaas, where the Court of Justice has gradually clarified which cases fall within the competence of the bankruptcy court (vis attractiva concursus) and which cases come within the scope of the principle of lex fori concursus. The article discusses the phenomenon of insolvencification of directors’ liability, i.e. corporate provisions being reclassified as bankruptcy provisions with a view to applying the lex concursus. It raises the following questions: how does insolvencification of directors’ liability correspond to the freedom of establishment and corporate mobility? Would the insolvencification of directors’ liability lead to regulatory competition because of the States’ desire to attract investors, minimising the standards of management responsibility and thus making their territories more attractive for business? The EU experience can be useful in the light of the discussion of the prospects for the establishment of cross-border insolvency regulation for the EAEU countries
The article deals with the problem of tax debt enforcement while “transferring financial and economic activities” from one legal entity to the other. The issue under consideration is beyond tax legislation which is derived from civil legislation and is obliged to operate its concepts and institutions. Ignoring them, wrong borrowing or creating an alternative conceptual framework may cause controversy. For example, the concept of “alternative dependence” leads to legal uncertainty. The concept mistakenly identifies enterprise – the object of the right with the concept organization – legal entity. Dependence it is a category of will. To recognize a person dependent it is not necessary to establish community property or property, before belonged to the debtor, but it is necessary to establish that the will of a dependent subject is substantially controlled by another person. It is also unacceptable that in peacetime interests of budget should be placed above the interests of all the other groups of creditors. Assuming that tax authorities have the right to recover the receivables from the deputy organization outside bankruptcy proceedings, and the recovered funds are not included in the insolvency estate, then the budget will get illegitimate profit at the expense of the rest of the creditors. A solution of the problem must be sought not by introducing new kinds of dependency, unknown for civil law, but by accurately qualifying property relations between a debtor and a deputy. In the present case, in fact, they conclude a contract for the transfer of an organization.
The author researches the European legal concept of linked credit agreements, which provides an imperative civil liability of the banks and other financial institutions for the delivery and quality of goods and services supplied by their clients. The concept is aimed at reducing such asymmetries as a lack of knowledge of the consumer about the reliability of suppliers of goods, services that are purchased on credit, the quality of goods and services, as well as the inability of the consumer to influence the terms of the loan agreement and the contract of supply of goods or services purchased on credit. This concept has been developed in recent years at the level of the EU law, although it existed in some EU countries earlier. Russian consumer credit law sometimes unnecessarily uses truncated European approach to civil liability, which reduces the level of consumer protection on the market. The author believes it is advisable to implement the concept of linked credit agreements to the Russian legislation on the protection of consumers of financial services. The move away from the concept adopted in Russia, that the bank is only an abstract settlement center, can also have a positive influence on the development of the mortgage as a way to provide better housing for citizens.
The article is focused on the analysis of the existing knowledge standards for online intermediaries, as provided in the Article 1253.1 of the Civil Code of Russian Federation. Based on the comparison of foreign and Russian case law, various criteria are being considered, the presence of which may lead to a conclusion that online intermediary actually “knows” (actual knowledge) or “should have known” (constructive knowledge) about the infringement. The article also provides critical assessment of some cases, where the presence of constructive knowledge was found due to the discussions about the infringement occurred in public. From the author’s perspective such an approach imposes on the online intermediary an atypical obligation to monitor the Internet information space, resulting in censorship.
The article analyzes the contemporary approaches in the European Court of Human Rights practice to the collection and considering of evidences in international litigation. The conclusion is made that the existing “flexible” evidential practice, using of the different presumptions and of the “beyond reasonable doubt” concept could cause serious risks for the whole international dispute resolution system. It is specifically important statement with regard to the cases on massive human rights abuses, including interstate disputes. The mentioned problems could be solved only through the dialogue between the national and supranational jurisdictions, acceptance by the international tribunals of the instruments, developed by national courts
After the crisis 2008 started as a global financial crisis of the banking sector and turned into a budget crisis in the EU Member States, the strategy of saving banks through state financing was criticized. A negative assessment of the actions of supranational and national authorities is related to the lack of coordination of actions to prevent the consequences of bankruptcy of the banks and their subdivisions in various countries and the waste of budget funds for compensation of losses incurred by financial organizations management acting in bad faith. To stabilize the banking sector of the EU Member States the decision to establish the Banking Union was made. One of the pillars of the union is recovery and resolution of financial organizations with a new strategy “bail-in”, according to which the losses of a bank likely to fail shall be compensated at the expense of the bank itself and its creditors. In a framework of the present article the pros and cons of “bail-in” strategy are considered as well as advantages and disadvantages of its predecessor. Urgency of the raised problem is conditioned upon the analysis of grounds of financial crisis 2008 in order to prevent its negative influence on banking sector of the EU in future. Besides, comparison of pros and cons of bank recovery and resolution strategies applied in the European Union may be useful for the purposes of their implementation in the Russian banking regulation.
The article contains analysis of different opinions presented in foreign doctrine in relation to the bank resolution strategies. It examines problems of legal and economic character connected to bank recovery and resolution in one country as well as in different countries. The article is divided into two parts, the first of which is devoted to the analysis of pros and cons of “bail-out” strategy and to the detailed investigation of Fortis group resolution in a framework of the strategy. The second part presents advantages and disadvantages of “bail-in” strategy, including those reflected in course of its implementation in the national systems of the EU Member States. To sum up, conclusions are drawn regarding the effectiveness of the bank recovery and resolution strategies in the EU.
The author addresses himself to standards of proof, exploring three myths that are commonly associated with them. He concludes that standards of proof are no closer to the truth than the inner conviction and that they are not as objective as they may seem to be.
The article deals with the problem of a controlling person’s liability for taking an excessive business risk in the vicinity of insolvency. Applying methods of economic analysis of law the author concludes that, in general case, a controlling person of a commercial corporation is liable towards creditors of a debtor only for those actions that are committed by him with an intention to harm creditors.
The article is devoted to an objective assessment of business judgment. The author analyses the concepts of reasonableness and good faith of director’s activities in the interests of the organisation. The author concludes that the greater degree of uncertainty, the more relationship between the organisation and the director take a game character. Due to the increasing complexity of the economic system, including a sharp increase in the scale and speed of information exchange, the use of traditional legal tools is extremely limited.