Publications

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 article posed and solved the problem requesting the employee a written explanation as а condition for bringing disciplinary responsibility. It is shown that the articles 193 and 294 of the Labor Code of the Russian Federation does not currently give a direct answer, which allows to solve this problem. The author argues that reclamation of explanation can not be this condition in terms of the purpose and meaning of this legal action as a result of non-compliance with the conditions, providing an increase of probability of an informed decision by the employer, equal to the illegality of the decision, despite the fact that the decision itself in the end can be justified. The article examines and refutes arguments against the stated positions, namely: 1) the argument that the employer acts as a quasi-judicial organization, the activities of which legitimately impose certain procedural requirements; 2) The argument that the vindication explanation reduces the risk of rendering unjustified decision and, consequently, the risk of litigation. As a result, it is stated that more reasonable it would be an admission then employer does not require from the employee a written explanation is not the violation of which must necessarily entail the illegality of the decision to impose a disciplinary sanction.

The criteria of invalidity of corporate bodies’ decisions used in Russian legislation and law enforcement are contradictory and they do not fully maintain the balance of shareholders’ interests. The roots of problems are a misleading unification of legal regulation of the meetings of non-legal entities and a corporation’s collegiate bodies as well as the introduction of the generic term «civil community» integrating corporate organizations and non-corporate groups. Furthermore, such grounds of the decisions invalidity as illegality of their content and violation of adoption procedure are not clearly distinguished. Organizational rights of the participants are unreasonably detached from their property (investment) interests. Consequently, the transfer of the right to the acquirer of the shares to claim the invalidation of the meeting’s decisions is incorrectly denied.

The article analyses Art. 183 of the Civil Code of the Russian Federation, which refers to the contract of obligation by representative without authority. The author believes that the rights and obligations stipulated by this agreement arise only with the approval of the person represented. In relation to the contract, approval is a suspensive condicio juris. Until it is approved or denied, the legal effect of the contract is in a suspension, it is like a suspension that takes place under a condition that the parties agree on of their own free will