Байбуз В.Н. - RATIO DECIDENDI OF SELECT JUDGEMENTS OF THE SUPREME COMMERCIAL COURT OF THE RUSSIAN FEDERATION (JANUARY

RATIO DECIDENDI OF SELECT JUDGEMENTS OF THE SUPREME COMMERCIAL COURT OF THE RUSSIAN FEDERATION (JANUARY - MARCH 2012)

RATIO DECIDENDI OF SELECT JUDGEMENTS OF THE SUPREME COMMERCIAL COURT OF THE RUSSIAN FEDERATION (JANUARY - MARCH 2012)

[The texts of ratio decidendi are drawn up by Dr. Alexander Vereshchagin. Please note that such publications are for information only and therefore do not constitute an official text of legal positions of the Supreme Commercial Court. In order to identify the authoritative version of a legal position, please turn to the original text of the respective decision.]

Judgment of the Presidium of the Supreme Commercial Court of 17 January 2012 № 11292/11 in the case The Company “RLP-Yarmarka” vs The company “Aternum”

Point of law: whether fines paid by a tour agent to a tour operator in connection with the cancellation of a tour as a result of the customer?s refusal of the trip should count as actual expenses of the tour agent which he may recover from the customer by virtue of Art 782 of the Civil Code?

Alternative attitudes: 1) the expenses borne by the tour operator or tour agent in connection with the arrangement of a tour can be considered as his actual expenses if they are properly proved; 2) the expenses borne by the tour operator or tour agent in connection with the arrangement of a tour can be considered as his actual expenses if they are properly proved and the fines are commensurate to the consequences of the contractual breach; 3) such fines do not constitute actual expenses borne by the tour agent in connection with his provision of services to the customer; instead, they constitute the losses of the tour agent which cannot be recovered from the customer.

Ratio decidendi: the first version is legally correct.

Tags: touristic services, recovery of losses

Judgment of the Presidium of the Supreme Commercial Court of 17 January 2012 № 9898/11 in the case The company “RusPromLeasing” vs The Tax Inspection № 4 for the City of Moscow

Point of law: whether thin capitalisation rules in Art 269 of the Tax Code require that the comparability of conditions in a loan contract concluded by the taxpayer as a borrower should be determined exclusively by comparing them with the provisions of other loan contracts of the same taxpayer or, rather, the conditions existent in the entire credit market should be taken into account?

Alternative interpretations: 1) it is the contracts of the same taxpayer that must be compared with each other, so that thin capitalisation rules of Art 269 would apply when the interest rate in a particular contract diverges by more than 20% from an average rate in those contracts (the view of lower courts); 2) the conditions of loan contracts concluded by the taxpayer should be compared with general market conditions, because only this comparison enables one to determine whether such conditions were economically reasonable and justifiable, which is exactly the purpose of thin capitalisation rules of Art 269 (the view of the panel of judges which referred the case to the Presidium).

Ratio decidendi: the Presidium ruled that the second interpretation is legally correct.

Tags: thin capitalisation rules

Judgment of the Presidium of the Supreme Commercial Court of 17 January 2012 № 14499/11 in the case The company “Kontur SPb” vs The Administration of the sea port of Sankt-Petersburg

Point of law: whether mandatory rules adopted by the administration of the port and signed by its captain are a normative legal act?

Alternative attitudes: 1) such rules do constitute a normative legal act, but the fact that they have been approved by the Ministry of Transport of the Russian Federation does not make them a normative act of a federal body of executive power; correspondingly, they are not within the jurisdiction of the Supreme Commercial Court as defined in Art 34 of the Commercial Procedure Code (the view expressed in the decision of the Supreme Commercial Court in its capacity of the court of first instance); 2) such mandatory rules do have the features of normative legal act, and their approval by the Ministry confirms that they have been adopted by a federal body of executive power and thus fall within the jurisdiction of the Supreme Commercial Court (the view of panel of judges which referred the case to the Presidium).

Ratio decidendi: the Presidium ruled that the first conclusion is legally correct.

Tags: judicial review

Judgment of the Presidium of the Supreme Commercial Court of 24 January 2012 № 11738/11 in the case The company “Elektrosignal” vs Tamara Popova, an entrepreneur

Point of law: whether two suits concerning the recovery of lease payments due are identical, given that both suits have the same grounds (both have arisen out of the same circumstances) and differ solely in the amount which is being demanded from the debtor (the first suit was about the recovery of a part of the debt only)?

Alternative attitudes: 1) such suits must be considered as being identical; hence, the proceedings with regard to the later suit should be terminated by virtue of Art 150 (para 2 of part 1) of the Commercial Procedure Code (the view of cassational court); 2) such suits are not identical – they have the same grounds, but differ in subject; therefore, the proceedings with regard to the later suit should not be terminated (the view of panel of judges which referred the case to the Presidium).

Ratio decidendi: the Presidium held that the first view is right in law.

Practical consequences: the Judgment does not say that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code. At the same time, this judgment may terminate the wide-spread practice of artificial splitting of cases and creating tentative suits.

Tags: commercial procedure, res judicata (preclusion)

Judgment of the Presidium of the Supreme Commercial Court of 31 January 2012 № 11025/11 in the case Research-and-production company “Kombioteks” vs The company “Serum Institute of India Ltd”

Point of law: whether the invention previously patented in a foreign state ought to be taken into account when determining the level of technique within the procedure of consideration of patent application with regard to a supposedly equivalent invention?

Ratio decidendi: the Presidium gave a positive answer to this question. In the opinion of the Presidium, the data constituting the level of technique and subject to the verification by experts should not be restricted by any territorial limits. It is exactly “the worldwide novelty” of the invention which is subject to assessment. Consequently, the conclusion of experts saying that in the level of technique which existed as of the date of submission of application in Russia there was no technical solution having the features identical to those from the formula of the invention under consideration should imply that an invention already patented in foreign states cannot be subsequently recognised as equivalent to the invention being patented in Russia.

Tags: patents

Judgment of the Presidium of the Supreme Commercial Court of 31 January 2012 № 12787/11 in the case The company “Special construction bureau “Planeta” vs The company “Geofizpribor”

Point of law: whether the duty to compensate for court expenses may be placed upon a person who formally did not participate in the case but filed an appeal against the decision of the court (since the decision affected his the rights and duties) and thus in fact acted as a person participating in the case?

Ratio decidendi: the Presidium gave an affirmative answer to the question by saying that the use of procedural rights implies the assumption of corresponding procedural duties, including the duty to compensate for court expenses; otherwise the constitutional principle of the equality before the law and the court might have been violated and the practice of unjustified appeals by third persons without their bearing the risk of unfavourable consequences might be encouraged. Besides, the Presidium has referred to Protocol 1 to the European Convention on Human Rights, having pointed out that it is inadmissible to infringe upon the right to property of the person who incurred expenses in the court.

Tags: court expenses

Judgment of the Presidium of the Supreme Commercial Court of 31 January 2012 № 12506/11 in the case The entrepreneur Elena Samsonova vs The City of Tula et al.

Point of law: whether the recognition of the actions of a public authority as being unlawful by way of procedure of Chapter 24 of the Commercial Procedure Code is a necessary precondition of the recovery of losses caused by those actions pursuant to Arts 16 and 1069 of the Civil Code?

Alternative attitudes: 1) recognition of the actions of the public authority as unlawful following the rules of Chapter 24 of the Commercial Procedure Code is a necessary precondition of the recovery of losses caused by those actions; 2) the judicial defence of rights by way of compensation of harm caused by unlawful actions of public authorities (or officials) does not depend on the necessity to challenge those actions under Chapter 24.

Ratio decidendi: the Presidium held the second approach to be legally correct, having pointed out that it conforms to the interpretations which has been given by the Presidium in para 4 of the Information letter of 31 May 2011 № 145.

Tags: recovery of losses

Judgment of the Presidium of the Supreme Commercial Court of 7 February 2012 № 13135/11 in the case The company “Atlant-M Leasing” vs Irina Kolontaenko, an entrepreneur

Point of law: which circumstances enable the court to determine by whom the seller of the asset being leased under financial leasing transaction has been chosen - by the lessor or lessee?

Ratio decidendi: Presidium held that the presence in the financial leasing contracts of standard clauses which provide for the choice of the seller by the lessee does not per se constitute a conclusive proof of the choice having been made by the lessee, that is, by a weaker party to the transaction. The party that has actually chosen the seller should be determined based on the concrete circumstances of the case and not from the standard provisions of the contract. The real proof of the choice having been made by the lessee is the entirety of real actions of the latter, in particular the fact that he had signed without any disagreement the sales-purchase contract under which the asset was acquired by the lessor from the seller in the favour of the lessee.

Tags: financial leasing

Judgment of the Presidium of the Supreme Commercial Court of 7 February 2012 № 11746/11 in the case The company “Diagnostic centre “Energoeffectivnost i normirovanie” vs The Institution of the Ministry of Energy Power “The Directorate for power energy efficiency and saving in South Urals”

Point of law: does a sentence of a criminal court have prejudicial force (res judicata) for commercial courts, provided that the commercial dispute is between legal entities, whereas the criminal sentence has been passed with regard to a natural person who headed the branch of the plaintiff company?

Ratio decidendi: the Presidium quashed the decisions of lower courts and reiterated its view that the decisions of general courts by which a transaction has been deemed to be a fictitious one, must be binding upon commercial courts – such transaction cannot be subsequently reassessed by them as valid.

Tags: commercial procedure

Judgment of the Presidium of the Supreme Commercial Court of 7 February 2012 № 11637/11 in the case The company “Leroy Merlin Vostok” vs The Interdistrict tax inspection № 9 of the Moscow Region

Point of law: whether marketing (incentive) bonuses for the volume of sales and for the presence of a commodity in shops payable by suppliers to retail sellers (retail chains) constitute a payment for services and as such ought to be included into sellers? tax base for the purposes of VAT, or those bonuses are merely a way of price determination and therefore must not be included into tax base?

Alternative attitudes: 1) marketing bonuses do not constitute a payment for services, because they are not connected with the performance of any specific services by sellers for suppliers (that is, there is no consideration); correspondingly, no object for VAT taxation exists – there is no sale of services to suppliers (the view of inferior courts); 2) marketing bonuses are a payment for services – the retailer?s service consists in enabling the suppliers for remuneration to sell goods in his retail chain; consequently, a sale of a service does take place, and hence there is an object of VAT taxation (the view of the panel of judges which referred the case to the Presidium).

Ratio decidendi: the Presidium held the first view to be right in law, saying that since the bonuses are directly connected to the supply of goods, they are a form of trade discount (rebate) that apply to the price of goods, and as such they decrease VAT base of suppliers and the amount of VAT deductions (input VAT) of retail seller (the purchaser of those goods).

Tags: VAT

Judgment of the Presidium of the Supreme Commercial Court of 14 February 2012 № 12416/11 in the case The company “Mobile TeleSystems” vs The Krasnoyarsk Region Directorate of the Federal Service for the Protection of Consumers and Human Well-Being

Point of law: the legality of a provision in the contract between the mobile service company and the customer (subscriber) which allows the former to recover the indebtedness of the latter by withdrawing money from another account of the same customer created under a different (analogous) contract between him and the company.

Alternative attitudes: 1) the rules of current legislation do not preclude the mobile service company from securing the obligation of the customer to pay for the services by way of inserting such provision into the contract, if the customer himself freely agrees to it; 2) the legislation does not envisage the possibility of securing client?s obligation in this way; the contract of rendering communication services is of standard form, and the client cannot exercise any influence upon its contents; the penalty provided for in the contract is a sufficient protection of the company?s interests.

Ratio decidendi: the Presidium held that the second version is legally correct.

Practical consequences: the Judgment does not say that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code. It remains to be seen whether the ratio decidendi of the present judgment may be extended to cover the contracts between mobile phone companies and corporate clients which do not fall under consumer protection law.

Tags: consumer protection

Judgment of the Presidium of the Supreme Commercial Court of 14 February 2012 № 12826/11 in the case The company “Technosib” vs The administration of Evenk municipal district of Krasnoyarsk Region et al.

Point of law: whether the plaintiff who won litigation against the State must take initiative as regards the execution of the court decision or it is the duty of the State itself to do so?

Ratio decidendi: in the opinion of the Presidium, the execution of a court decision is a public duty of the State and should not depend upon any actions of the recoveror with regard to compulsory enforcement of judicial decision. The person in whose favour the court decision has been delivered should not initiate the procedure of its compulsory execution – it is a duty of the state itself, as it follows from the decisions of the European Court of Human Rights in cases Metaxas vs Greece of 27 May 2004 and Krasev vs The Russian Federation of 26 June 2008.

Practical consequences: the Judgment does not say that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code. All the same, it is the first decision of the Presidium concerning the compensation for the failure to execute a court ruling within a reasonable term.

Tags: execution procedure

Decision of the Supreme Commercial Court of 21 February 2012 № 14589/11

Point of law: whether the Order of the Ministry of Culture of 25 August 2010 is lawful to the extent in which it places upon the commercial entities the duty to store a large number of various documents (enumerated in the Order) and prescribes periods for their storage?

Ratio decidendi: the Court has refused to declare the Order to be illegal, because in the opinion of the Court it does not place upon commercial entities any additional duties compared with federal laws.

Practical consequences: this decision was not appealed against by the applicants in the Presidium of the Court. Therefore, the opportunities for its further review are exhausted, and the disputed list of documents and periods of their storage remained in force for all commercial entities operating in Russia.

Tags: company law

Judgment of the Presidium of the Supreme Commercial Court of 21 February 2012 № 13104/11 in the case The company “Leramony Associates Inc” vs The company “Meinl Bank AG” et al.

Point of law: whether the commercial court has a right to revise the choice of court made by the parties to a contract and declare the lack of jurisdiction over the ensuing contractual dispute in the absence of defendant?s motion to that effect as well as any violation of court?s exclusive jurisdiction or public policy?

Alternative attitudes: 1) the court when considering a suit under such circumstances may declare the lack of jurisdiction at its own initiative; 2) the court may not do so, as long as the defendant by his own conduct has constructively admitted the jurisdiction of this court.

Ratio decidendi: in the view of the Presidium, the second approach is legally correct. Any different interpretation would contradict the principle of adversarial procedure as well as the constitutional right to judicial defence. On a separate note, the Presidium opined that in the international practice the intrusion of the court at its own initiative into the parties? choice of competent court (including the cases when such choice was made by way of a constructive recognition of the court?s jurisdiction) is considered as a restriction of the right to justice (provided that there is no violation of exclusive jurisdiction), as is evidenced by Art 24 of the Regulation № 44/2001 of the Council of the European Union of 22 December 2000 “On Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters”; Arts 318, 322 of Bustamante Code, passage 2 of para 38 of Code of Civil Procedure of the Federal Republic of Germany.2

2 It is likely that not para 38, but, rather, para 39 of the German Code of Civil Procedure was actually referred to in the judgement.

Tags: commercial procedure

Judgment of the Presidium of the Supreme Commercial Court of 28 February 2012 № 14324/11 in the case The company “Volgograd-GSM” vs The Volzhsk City Department of Judicial Bailiffs

Point of law: whether the laws on judicial bailiffs-executors and execution procedure give the judicial bailiff-executor the power to request from a mobile network operator a confidential data concerning a subscriber (debtor), including the number of his cell phone?

Alternative constructions of the law: 1) the judicial bailiff-executor does not have such power, because the laws in question do not meet the criteria provided by the legislation on the protection of personal data for those special cases in which, by way of exception from general rules, the disclosure of personal data is permitted; 2) he has such power because the laws in question do meet the criteria established by the special legislation for making such exceptions.

Ratio decidendi: the Presidium has deemed the second construction to be right in law.

Tags: confidential information, execution procedure

Judgment of the Presidium of the Supreme Commercial Court of 28 February 2012 № 12436/11 in the case The company “Konsortium-PIK” et al. vs The Federal Service for Intellectual Property, Patents and Trademarks

Point of law: whether a designation which is confusingly similar to an international nonproprietary name may be registered as a trademark?

Ratio decidendi: in the opinion of the Presidium, since an international nonproprietary name is deemed to be a commonplace term and as such may not be registered as a trademark, the same applies to the designation which is derivative from such international nonproprietary name and is confusingly similar to it (differs from it by a single letter or sound).

Practical consequences: the Judgment does not provide for the possibility to reverse inconsistent court decisions in prior analogous cases by virtue of Art 311 of the Commercial Procedure Code. Therefore, its ratio decidendi has only prospective force.

Tags: trademarks

Judgment of the Presidium of the Supreme Commercial Court of 28 February 2012 № 15935/11 in the case The bank “Zenit” vs Serghei Birkle, the bankruptcy trustee of the company “Tvins-Kaliningrad”

Point of law: if a bankruptcy creditor submits to the bankruptcy trustee of the debtor company the evidence that a debtor company transaction is suspect, whether the bankruptcy trustee must challenge such transaction in court?

Alternative attitudes: 1) the recourse to court in such circumstances is a duty of bankruptcy trustee; 2) the recourse to court is his right, not a duty; 3) the recourse to court is his right, but his refusal to make such recourse should be properly substantiated; otherwise his discharge of his duties cannot be considered proper, reasonable and in good faith.

Ratio decidendi: the third attitude is legally correct.

Tags: bankruptcy

Judgment of the Presidium of the Supreme Commercial Court of 28 February 2012 № 14850/11 in the case The company “Farn-Trade” vs The company “Prosto” et al.

Points of law: 1) what are the requirements to the procedure of publication and dissemination of notifications concerning a public sale? 2) whether the consent of lessor is mandatory in case of the transfer of the right to lease of the state or municipal property?

Alternative views as to the first point: 1) no special requirements exist; 2) although such requirements have not been established by legislation, they have been worked out by case law.

Ratio decidendi: the second view is legally correct. In saying this, the Presidium has pointed out that the necessary requirements to such notification were set out in its judgment of 14 February 2010 № 7781/10. The interpretation given in that judgment is binding.

Alternative solutions as to the second point: 1) the consent of the lessor is not required; 2) the consent of the lessor is necessary; without it, it is possible to assign both rights and duties arising out of the lease contract of state and municipal property (sublease), but not to transfer only rights without the attendant duties.

Ratio decidendi: in the opinion of the Presidium, the second solution is correct in law.

Tags: lease, public sale

Judgment of the Presidium of the Supreme Commercial Court of 6 March 2012 № 12505/11 in the case The company “Doroga” vs G.P.Semenenko

Point of law: what are the standards of reasonable and in good faith behaviour of the chief manager of the company and how the burden of proof should be distributed if the plaintiff (shareholder of the company) submits weighty arguments of the disputed transactions being interrelated and of the chief manager of the company being in the situation of a conflict of interests?

Ratio decidendi: the Presidium held that:

- the failure of the defendant (director general of the company) to submit proofs should be assessed as solely the refusal to refute the fact the existence of which is being convincingly argued for by the other party to the proceedings; the person that participates in the dispute and fails to make a procedural act bears the risk of consequences of such behaviour;

- if the director general, when being in the situation of potential conflict of interest, does not make necessary steps for receiving information on interrelated transactions or refuses to disclose such information to shareholders, he should not be considered as behaving reasonably and in good faith as required by the law on joint-stock companies. The above circumstances do not allow, in their turn, to apply the presumption of innocence to the defendant; instead, they burden him with the duty to prove that the transactions in question have been made in the interests of the company and not in his own interest;

- since the disputed transaction have been made in the conditions of the potential conflict of interests, the respective relations cannot be assessed as actions made within the normal business risk.

There is a concurring opinion by Judge D.Dedov who believes that in the present case the defendant was not only a person interested in the transaction but in fact a party to it.

Practical consequences: the Judgment says that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code. This case may become fundamental for the formation of practice of holding directors liable for the transactions of their companies.

Tags: liability of directors, burden of proof

Judgment of the Presidium of the Supreme Commercial Court of 15 March 2012 № 16067/11 in the case Corporation “Aelita Software Corporation” (USA) vs The Interdistrict Inspection of Federal Tax Service № 47 for the City of Moscow

Point of law: who must prove the reasonability of expenses incurred by the winning party for court representation when this party demands their reimbursement?

Alternative attitudes: 1) it is the winning party that must prove that the amount of expenses was a reasonable one; 2) it is the losing party that must prove that the amount of expenses was exorbitant.

Ratio decidendi: the second approach is legally correct.

Practical consequences: in this judgement the Presidium has developed and consolidated its view expressed in an array of earlier decisions as well as in the Information letter of 5 December 2007 № 121, and this enables one to consider the court practice in such matters to be finally shaped.

Tags: reimbursement of litigation expenses, burden of proof

Judgment of the Presidium of the Supreme Commercial Court of 20 March 2012 № 14989/11 in the case The company “IunitPrestizh” vs The company “Uiut-Stroi” et al.

Point of law: if in the course of judicial proceedings it has been found that the defendant behaved in an unscrupulous manner, in particular, if he refused to disclose the necessary information, whether the plaintiff should then prove the facts he stated to be true, or the burden of proving or, rather, refuting them should be shifted upon the defendant?

Alternative attitudes: 1) the burden of rebuttal in such cases must be placed upon the defendant; 2) the burden of proof remains with the plaintiff.

Ratio decidendi: in the opinion of the Presidium, the first version is legally correct – the refusal of the defendant to disclose the information must be assessed as the recognition of the facts which the plaintiff states to be true.

Practical consequences: the Judgment says that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code. It should be also noted that this is the first case in which the Presidium applied the doctrine of “restoration of corporate control” with respect to shares in joint-stock companies (previously it was applied to misappropriated shares in limited liability companies).

Tags: burden of proof, shares

Judgment of the Presidium of the Supreme Commercial Court of 22 March 2012 № 12613/11 in the case Shavkat Satarov vs The company “Uralskii Priborostroitelnyi zavod” et al.

Point of law: whether the corporate law concept of “affiliation” is applicable to natural persons who formally do not engage in entrepreneurial activities?

Alternative attitudes: 1) the legislation does not envisage that a natural person not conducting entrepreneurial activity might have affiliated persons; 2) the finding of affiliation requires having the status of individual entrepreneur or engagement in entrepreneurial activities from neither natural persons with respect to which the affiliation of other persons is being determined nor from the supposedly affiliated persons themselves.

Ratio decidendi: the second view is legally correct.

Tags: conflict of interest

Judgment of the Plenary Session of the Supreme Commercial Court of 23 March 2012 № 12 “On Making Amendments to the Judgment of the Plenary Session of the Supreme Commercial Court of the Russian Federation of 30 June 2011 № 52 “On the Application of Provisions of the Commercial Procedure Code of the Russian Federation in the Event of Reversal of Judicial Acts on the Grounds of New or Newly Discovered Circumstances”

The amendments affect the powers of the Plenary Session and Presidium of the Supreme Commercial Court to develop the law which they exercise by way of working out „legal positions? (interpretations) binding upon courts. The new version of para 11 of the Judgment № 52 makes two additions to the original version, both of which will be emphasised below. The amended version of para 11 provides that:

- the circumstances which, contrary to general rule, allow reversing final judicial decisions in analogous cases by reference to a legal position of the Supreme Commercial Court shall include the expiry of periods established by Art 312 of the Commercial Procedure Code; the possibility to deteriorate the conditions of a person who was brought to public law responsibility; non-exhaustion of possibility to make recourse to court of appellate or cassational instance;

- when a judgment of the Plenary Session or Presidium contains several legal positions, it is possible to give retroactive force to only one of them, if the judgment explicitly indicates so (this provision is a new one compared with the original version of para 11);

- even in the absence of a reservation clause in the judgment of the Plenary Session or Presidium as to the retroactive force of respective legal position in the meaning of Art 311 of the Commercial Procedure Code such legal position (interpretation) must nevertheless be taken into account by courts when considering analogous disputes which may arise in the future (prospective force of legal positions);

- “in the judgment of the Plenary Session or Presidium of the Supreme Commercial Court of the Russian Federation there can be defined the range of court decisions to which such reservation clause shall extend”;

- «for the judgments not containing the retroactive force reservation clause, the Plenary Session or Presidium of the Supreme Commercial Court may define the limits of the application of the legal position formulated by it, in particular by way of indicating the date of arising or change of legal relations to which it shall apply”. In other words, the application of binding interpretations worked out by the Plenary Session or Presidium may start not from the moment of their publication, but from a later moment as indicated in the respective judgment. This option is analogous to the one which is already enjoyed by the Constitutional Court of Russia, and it constitutes the second addition to the original version of para 11.

Practical consequences: these amendments make an important step in shaping the powers of the Supreme Commercial Court in the development of law by way of issuing binding interpretations.

Tags: commercial procedure

Judgment of the Plenary Session of the Supreme Commercial Court of 23 March 2012 № 14 “On Particular Issues of the Practice of Resolution of Disputes Connected with the Challenging of Bank Guarantees”

In this judgment the Court has explained that:

- the failure to indicate in a bank guarantee all the conditions of the obligation which was secured thereby is not per se a sufficient reason for challenging it;

- the period, for which the guarantee is issued should not be necessarily equal to the period of performance of the principal obligation which is secured by such guarantee or exceed the latter – it may be shorter than the period of principal obligation;

- the requirements of the law concerning the written form of the guarantor?s obligation are complied with if the transaction of bank guarantee is made by way of sending the document in question by the debtor to the creditor via any means of communication enabling it to be reliably established that the document has been issued by the person that made this unilateral transaction. Therefore, the requirements of Art 368 of the Civil Code on the written form of bank guarantee shall be considered complied with when, for instance, the guarantee has been issued in the form of electronic message with the use of SWIFT. In so doing, even the failure to observe the simple written form of bank guarantee does not per se entail its invalidity: the persons concerned may bring written or other proofs confirming the transaction and its conditions (para 1 of Art 162 of the Civil Code);

- the lack of the signature of the chief accountant of the company which issued the bank guarantee may not serve as a ground for deeming such guarantee invalid.

Practical consequences: the present explanatory judgment continues the policy of the Supreme Commercial Court aimed at the protection of security interests and minimization of the opportunities to destroy such transactions on purely formal grounds. All the same, the judgment does not provide that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code. Therefore, the interpretations therein are binding upon courts only in disputes which may arise in the future.

Tags: securing obligations, bank guarantee

Judgment of the Presidium of the Supreme Commercial Court of 29 March 2012 № 16882/2011 in the case The company “Commercial bank “Moskovskii kapital” et al. vs The State unitary enterprise “The Second printery of Federal Directorate of Medico-bilogical and extremal problems”

Point of law: under which circumstances execution may be levied against the property of the surety, if such surety is a federal unitary enterprise?

Alternative attitudes: 1) the levy is possible in all cases; 2) the levy is possible only if the resulting alienation of property does not impede the achievement of the purposes of the federal enterprise set out in its charter. Otherwise the transaction of suretyship shall be void as being contradictory to the fundamentals of public policy of the Russian Federation, and the levy of the execution against the property of the surety is impermissible.

Ratio decidendi: the second approach is legally correct.

Tags: suretyship

Адвокат Байбуз Вадим Николаевич

RATIO DECIDENDI OF SELECT JUDGEMENTS OF THE SUPREME COMMERCIAL COURT OF THE RUSSIAN FEDERATION (JANUARY - MARCH 2012)