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Информационный обзор практики Разрешения судебных споров и медиации (1 июля - 15 августа, 2013)

recent events

Intellectual Property and Copyright Court begins work

On 1 August 2013, the Copyright Court began its operations in Moscow as part of the system of arbitration proceedings. The Copyright Court reviews disputes regarding copyrights (as established by the copyright holder) and the violation of rights. In terms of the first group, the patent court is the court of first instance specifically in respect of disputing the decisions of Rospatent; and for the second group, the Copyright Court is the court of cassation instance in respect of disputes concerning specifically trademarks; while the regular arbitration courts are the courts of first and second instance for them.

SAC to introduce new e-justice practices

In order to expedite the arbitration process and make it more convenient, the Supreme Arbitration Court of the Russian Federation (the “SAC”) at the beginning of 2014 will introduce a system of interdepartmental electronic interaction with the Federal Bailiffs Service and other departments. As a result, a winning party will no longer physically have to go the court to receive a hard copy of the order of enforcement and present it to the bailiffs. In turn, a judge may easily check whether a court decision has been fulfilled.

new legislation and initiatives

Putin signs third package of major amendments to Civil Code

On 2 July 2013, President Vladimir Putin signed federal law No. 142-FZ “On Amending Clause One, Section I, Subsection 3 of the Civil Code of the Russian Federation” (the “Law”) that comes into force on 1 October 2013. The Law is intended to settle matters on systematising the objects of civil rights and securities; and defending the honour, dignity, business reputation and personal lives of citizens. Personal property entails cash and non-cash monetary funds; certified and uncertified securities; as well as the actual results of works and services rather than works and services themselves.

Furthermore, the Law (i) describes the process of requesting to see certified securities from a party that has obtained them in good faith; (ii) strengthens the rights of an owner from whom uncertified securities have been removed to require that the party to whom the uncertified securities have been transferred return said securities; and (iii) establishes the procedure (a) to protect the violation of rights to uncertified securities and (b) to reclaim them and re-establish the record of rights to said securities.

Latest ‘road map’ approved to improve construction business

The Russian Government has issued decree No. 1336-r of 29 July 2013 by which it has approved the “road map” to “improve the regulation of town-planning and the construction business”, which entails: simplifying the preparation of land plots; improving the regulatory process; decreasing number of procedures and the time and money to complete them in respect of implementing investment in construction projects.

in the Supreme Arbitration Court

SAC Plenum adopts decree on applying first section of Tax Code

The decree of the Plenum of the Supreme Arbitration Court “On several matters that arise when arbitration courts apply the first section of the Tax Code of the Russian Federation” stipulates that when taxes are not deducted from a foreigner, a Russian company (tax agent) is responsible for paying this tax. This is intended to avoid the use of privileges of residual income by beneficiaries (when using offshore accounts) under an agreement to avoid dual taxation. Previously, a tax agent faced a penalty only if it had actually deducted tax from a foreigner, but did not transfer the said tax to the budget. In this case, the tax agent would be fined 20% of the deducted, but not transferred, tax amount.

SAC Plenum adopts decree on recovering damages from company directors

The SAC Plenum in its decree to a large degree places the burden of proof on the directors. Indeed, there are five instances of a “presumption of dishonesty” on the part of a director, for example: having a conflict of interest (excluding instances when shareholders were aware, but did not object); hiding information or presenting false information on a transaction; not receiving the necessary approval from the board of directors or shareholders’ meeting; keeping materials on a company’s losses following resignation or dismissal; knowing at the time of signing a deal (or should have known) that the deal was not in the best interest of the company.

Consequently, it will be possible to win cases on recovering damages, which, until recently, was a rare occurrence.

SAC Plenum prepares draft decree on bankruptcy legislation

The draft decree is basically intended to protect the interests of the creditors and counter parties of a debtor. This is in line with the current changing practice of arbitration courts.

It would regulate a number of issues on disputing bank payments transactions with a preference. The SAC has also spoken about the issues (i) regarding the responsibility of the counter party of a debtor to have information on the inability to pay or insufficient funds; (ii) completing a transaction during the normal course of business; and (iii) of an administrator’s obligations.

SAC clarifies problematic issues in disputing regulatory acts

In terms of jurisdiction, arbitration courts must adhere to two criteria: a regulatory act must involve the rights and legal interests of the applicant in business and other economic activities; and the law must relate directly to the competencies of the arbitration court.

SAC upholds requirement of all parties to review offshore transactions in order to fight money laundering

The SAC has ruled in favour of a bank in a dispute with a legal entity that attempted to transfer third-party funds through the bank, following which the bank refused to complete the transaction. The SAC has noted the acts of the lower courts and has confirmed that in order to adhere to the law on fighting money laundering, banks are obliged to identify their clients, and banks have the right to refuse to complete transactions that lack enough information (i.e., information which a paying party does not present to a bank upon request).

other cases of interest

Court reviews WTO-related case

A Moscow region appeals court is reviewing a dispute on a company being required to sign an agreement to deliver raw materials at a price considerably lower than the world market value.

The court of first instance required the company to sign the agreement with the counter agent for the delivery of the raw materials at a price that must take into account the previous year plus the rate of inflation. (The current price on the domestic market is 1.5 times lower than the market rate).

According to the respondent, the arbitration court’s decision to set the price lower than world prices is a violation of WTO regulations, given that it grants obvious preference to the plaintiff and creates discriminatory conditions for other fertilizer producers. Experts believe that setting the price for goods at less than world prices is a gross violation of WTO regulations, given that this creates discriminatory conditions for similar imported goods, which, in turn, could lead to Russia being fined.