ARCHIVE FOR 2021 RUSSIAN
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Июнь 2021
CONTENT
FREE TRIBUNE
Stanislav Sobolev The Secondary Liability in Case of Debtor’s Administrative Liquidation: Dissecting the Legal Institute Federal Law No. 488-FZ dated December 28, 2016 supplemented art. 3 of the Federal Law ‘On Limited Liability
Companies’ with a norm (clause 3.1) which provides that persons and organisations that control a company
that has been struck off from the companies registry due to its inactivity could be held responsible to the unpaid
creditors of such a company (secondary liability).
The norm is so concise that it leaves unanswered many questions: from the procedural (jurisdiction of such
claims) to substantive (the effect of the law in time, the legal composition of subsidiary liability, limitation) ones. It
is also unclear what is the relationship of this subsidiary liability with a similar institution in the Law on bankruptcy.
The author makes an attempt to investigate this norm based on judicial practice and suggests how various
problems could be resolved.
Keywords:
secondary liability, administrative liquidation
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Konstantin Savryga Control Premium, Benefits of Control and Their Distribution in Russian Corporate Law This article deals with the analysis of such economic and legal phenomena as control premium and situations
where such premium is presented. In the first part of the article author explores the different ways of valuation of
corporations to determine where the control premium appears and what its nature is. Control premium is defined
as monetary dimension of the possibility to extract benefit of control, that are also described. The second part
of the article is dedicated to the analysis of the particular Russian corporate law rules aimed at control premium
distribution and their critical analysis. We come to conclusion that takeover regulation and share/participation
interest buyback are aimed at redistribution of control premium. Such redistribution deters majority shareholder
from expropriating wealth from minority shareholders by inefficient corporate actions.
Keywords:
control premium, benefits of control, valuation, controlling interest, corporate control, takeover, buy-back
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Alexander Likhanov, Rimma Chichakyan Maximising Shareholder Value or Satisfying Stakeholders’ Interests — Whose Goals Do Directors Pursue When Managing a Corporation’s Business? Despite the increased interest in issues on the purpose of a corporation, the fiduciary duties of directors and the
protection of shareholders’ interests, one has to recognise that the relevant literature on this topic is not sufficient
to appraise the Russian approach fully. Thus, this article analyses Russian peculiarities in determining the purpose
of a corporation: whether or not it is maximising shareholder value and/or satisfying stakeholders’ interests,
considering the already established approach abroad. The article substantiates that from current practice, it can be noted that the Russian corporate environment is different from that of England and the United States, which
is due to several legal and economic characteristics. Thus, the present article covers the development of the
discussion regarding the purpose of a corporation in Anglo-American practice, as well as the main arguments
for two approaches to determining the purpose of a corporation: maximising shareholder value and stakeholder
theory. The second part of the paper is devoted to Russian law and its features in determining the purpose of a
corporation.
Keywords:
maximising shareholder value, stakeholder theory, purpose of the corporation
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Alexey Glazunov Limitation Period for Indirect Claims by Members and Directors of Companies This article analyses when the limitation period for derivative claims by shareholders and directors on behalf of
corporation begins to run. This problem is caused, on the one hand, by the multiplicity of persons who are entitled
to sue on behalf of corporation, but, on the other hand, by a conflict of interest that arises from the nature of the
derivative claim. Author critically analyses the existing approaches of the Russian courts, and considers various alternative options, referring, inter alia, to foreign jurisdictions. In particular, the article reveals the essence of
the concepts of ‘adverse domination’ and ‘the first disinterested person’. Based on the results of the analysis
performed, author comes to the conclusion that the principle of accrual of the limitation period from the perspective
of the first disinterested person authorised to make the derivative claim seems to be the most balanced approach.
Such an approach takes into account the demands for of legal certainty and market protection, but at the same
time opens the door for the effective protection of rights of the corporation itself and, indirectly, of its shareholders.
De lege ferenda this approach could be applied both when recovering losses for breach of fiduciary duties and
when challenging the extraordinary transactions.
Keywords:
limitation period, derivative claim, balance of interests, conflict of interests, adverse domination, the first disinterested person
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Dmitry Ilin, Alexandra Borisova Prejudicial Nature (Issue Estoppel Effect) of Arbitral Awards in Russia The article is aimed to discuss the ‘issue estoppel’ effect of an arbitral award (as part of the ‘res judicata’ principle).
Nowadays, the Russian state courts are not bound by the conclusions of tribunals regarding the circumstances of
the case established by such tribunals in the previous proceedings, and, therefore, the state courts are entitled to
re-evaluate the evidence in a dispute between the same parties. It means that a decision of a state court in further
proceeding between the same parties may contradict with the conclusions of a tribunal made in the previous case
(for instance, regarding the fact of termination of a contract). In the legal commentaries an approach has been
developed that the ‘issue estoppel’ effect may be implied based on such features of arbitral award as, for example,
its mandatory nature for the parties. But such approach is denied in the case law. Authors argue that a number
of measures may help practitioners to reach the same effect as an ‘issue estoppel’ during the subsequent state
courts proceedings (but such measures have their shortcomings).
Keywords:
res judicata, claim estoppel, issue estoppel, arbitral award, recognition and enforcement of arbitral awards, evidence, abuse of process
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