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ART DE LEX lawyers stopped the creation of an ‘endless’ astreinte

On January 18, 2018, a judicial act that satisfied the demand of the ART DE LEX trustee was published, and it obliged the bailiff to finish the enforcement proceedings (case No. A40-220551 / 2017). Thus, the attempt of former foreign shareholders of the sanctioned "Investtorgbank" (ITB) to create legal grounds for an endlessly repeated astreinte was suppressed.

"At first glance - the event is quite ordinary. But in fact, such judicial act prevented to create a legal basis for the inherently endless judicial penalty (astreinte) by former foreign shareholders of JSCB "Investorgbank", using the general wording of the decision to demand documents and information from the bank," says the Advocate, Head of International Arbitration and Dispute Resolution Practice Artur Zurabyan.

The background of the issue is related to the corporate relations of the former owners of the bank. In 2014 a corporate conflict arose between the bank’s senior management and foreign companies representing the investment group Starr Companies (controlling about 40% of the bank's shares).

As part of the conflict, foreign companies filed two lawsuits to get detailed information and documents on its activities. However, even after the court decisions came into effect, according to which the bank was obliged to provide information and documents, the judgement was not enforced, as the bank remained under the influence of the same individuals, the major one of which can be extradited to the RF in the very near future. Https://www.kommersant.ru/doc/3523119?from=four_strana

Decisions of the courts had to be enforced by the provisional administration, which was appointed by the Central Bank of Russia for the bank's financial rehabilitation. Since in one of the court’s decision, the bank had demanded contracts with specific counterparties, and in the other - a streamlined list of "all contracts subject to real estate", a list of claimed documents could, if desired, be doubled and endlessly continue to refine the list, re-claiming the earlier documents.

Judicial protection of such position would allow foreign companies to create a basis for recovering an almost endlessl astreinte, the application for recovery of which was received on 29.12.2017 (case No. A40-51969 / 2014).

"But the cunning plan did not work. According to the position taken by Moscow City Arbitration Court, if the disputed list of documents was transferred within the framework of another court decision, the bank is not required to return the same documents again, for the purpose of completing the enforcement proceedings, the bank is only obliged to confirm their transfer within the framework of another enforcement proceeding," commented the lawyer ART DE LEX Aslan Tibilov, who also represented the case in court.