RATIO DECIDENDI OF SELECT JUDGEMENTS
OF THE SUPREME COMMERCIAL COURT OF THE RUSSIAN FEDERATION
(APRIL - JUNE 2012)1
Judgment of the Presidium of the Supreme Commercial Court of 3 April 2012 № 15483/11
in the case The company Ulianovsk Motor Plant vs The Interdistrict Inspection of the Federal
Tax Service on major taxpayers in Ulianovsk Region
Point of law: whether tax agent must pay at his own expense the amount of VAT, which he
failed to withhold from a foreign taxpayer, given that the tax agent has already paid fine and
penalties for this violation of tax legislation?
Alternative attitudes: 1) the law does not permit to recover from the tax agent the amount of tax
which he failed to withhold, the only consequences being a fine and penalties for the failure to
fulfill the duties of tax agent; or 2) it is the tax agent who must pay the amount of tax which he
failed to withhold.
Ratio decidendi: the Presidium deemed the second solution to be legally correct, based on the
following: а) the amount of tax was not included into the remuneration paid to the foreign
company, and thus remained at the disposal of tax agent, b) the taxpayer preserves the right to
deduct this amount from his output VAT, and c) the taxpayer does not remain to be the person
obliged to pay VAT because he is not registered with tax authorities of the Russian Federation.
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: tax agents
Judgment of the Presidium of the Supreme Commercial Court of 10 April 2012 №
15085/11 in the case The company “Russian Forest Group” vs Sberbank
Point of law: 1) how is limited the right of the pledgeholder to reduce 10-days period of time
which the law gives him in order to cease the sale of the object of pledge by performing the
obligation which has been secured by the pledge? 2) whether an executive note of the notary is
required for the purposes of compulsory levy of execution on the object of pledge (securities),
given that the depositary and pledgeholder are different persons?
Ratio decidendi: the Presidium decided that: 1) the period in question may not be reduced to the
extent capable of depriving the pledgor of the opportunity to take advantage of the right, which
has been conferred upon him by law, to perform his obligation and thus cease the realisation of
the pledged property. A material and unjustified reduction of the aforementioned period by the
pledgeholder might testify to the fact that the real purpose of the pledgeholder was not the
satisfaction of the creditor’s demands secured by the pledge, but an acquisition of the right of
ownership to the pledged property on non-market terms. Turning the object of pledge into the
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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.
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ownership of the pledgeholder as a way of realisation of the pledged property is potentially
detrimental to the pledgor, because it precludes the application of general rules on satisfying the
demands of pledgeholder which guarantee the observance of pledgor’s interests (the sale of the
object of pledge, the satisfaction of creditor’s demands out of the monies received, and the
transfer of the remaining amount to the pledgor). Therefore, a recovery outside court procedure,
as implying the lack of control on the part of a court, and subsequent realisation of the pledged
property by the pledgeholder in this particular way require from the latter a maximum prudence
and good faith, including due regard to the legitimate interests and expectations of the pledgor;
and 2) in this situation the pledgeholder had no right to withhold the securities for himself
without notary’s making an executive note, whereas the depositary ought not to execute the
respective orders of the pledgeholder, because he ought to ascertain that the demands of the
pledgeholder were being executed on the basis of an executive note of a notary. The violation of
this duty by the depositary gives to the pledgor the right to claim damages from the depositary.
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.
Tags: pledge, VAT
Decision of the Supreme Commercial Court of 11 April 2012 № ВАС-308/12
Point of law: whether the amount of the State duty to be paid for the adoption of a decision
concerning an objection against the issuance of a patent may be different for residents and nonresidents?
Ratio decidendi: in the opinion of the Court, the rules on the amount of duties to be paid by
residents and non-residents provide for distinctions which may not be justified by any objective
reasons and affect competition in a negative way. Besides, they contradict Art 2 of the Civil
Code (national regime for foreign citizens) and international obligations of the Russian
Federation, in particular the principles of WTO, Art 3 of the TRIPS as well as a number of
articles of the Agreement on Partnership and Cooperation between the Russian Federation and
the European Communities, which by virtue of Art 15 (part 4) of the Constitution of the Russian
Federation are a constitutive part of the legal system of the Russian Federation.
Practical consequences: the Decision has entered into legal force, since by a ruling of a panel of
judges of the Supreme Commercial Court it was denied submission to the Presidium for reversal.
Tags: foreign residents
Judgment of the Presidium of the Supreme Commercial Court of 24 April 2012 №
16404/11 in the case The company “Olimpia” vs The company “Parex banka” et al.
Points of law: 1) whether the actual presence in the territory of the Russian Federation of a
representative office of a foreign legal entity constitutes, under the Agreement between the
Republic of Latvia and the Russian Federation on Legal Assistance and Legal Relations in Civil,
Family and Criminal Matters (1993), a sufficient ground for assuming jurisdiction by a Russian
commercial court with regard to a dispute involving the aforementioned foreign legal entity, or it
is only the formal presence of a properly registered representative office that may constitute the
necessary precondition for such assuming of jurisdiction?; or 2) whether it is essential, for the
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purposes of determining the jurisdiction (proper venue), that the Russian branches of the foreign
legal entity did not take part in assisting the disputed transactions?
Ratio decidendi: the Presidium held that: 1) the sufficient condition for assuming jurisdiction by
a Russian commercial court may be the fact that the defendants – i.e. foreign legal entities – were
conducting entrepreneurial activities in the territory of Russia through affiliated persons. The
Presidium applied the doctrine of “piercing the corporate veil” and noted that such approach to
the evaluation of the presence of a representative office or a branch, proceeding from the
circumstances of a particular case, is conformant to the current international practice, in
particular the practice of the European Court of Justice, as evidenced by its decision of
09.12.1987 in the case SAR Schotte GmbH v. Parfums Rothschield; 2) in the event that a branch
or a representative office does not participate in the conclusion, formalisation and execution of
the disputed transaction, the criterion of determining the international jurisdiction by the seat of
the branch or representative office of the legal entity, as consolidated in para 23 of the
Agreement on Legal Assistance, may not apply, which is conformant to the generally-accepted
approach to its application (cf. the decision of the European Court of Justice of 18.03.1981 in the
case Blanckaert&Willems v. Trost).
Practical consequences: it is apparently the first case in the Russian court practice when a court
explicitly based its decision on the “piercing corporate veil” doctrine. 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.
Tags: court jurisdiction
Judgment of the Presidium of the Supreme Commercial Court of 22 May 2012 № 13443/11
in the case The company “MIG Story” vs The city of Kaliningrad
Point of law: whether the demand of a person to recover the losses (expenses) is lawful, if they
were borne as a result of his fulfilment of a decision of a public authority which was adopted
following the request of the same person, but was knowingly not conforming to a law?
Alternative attitudes: 1) such person may recover losses because they were caused to him by an
illegal decision of a public authority (the view of the first instance court and of the panel of
judges which submitted the case to the Presidium); or 2) such person may not recover losses
because they were borne in the process of ordinary economic activity, and the person itself ought
to know about the illegality of the decision in question (the view of the appellate court,
subsequently approved by the cassational court).
Ratio decidendi: the Presidium rejected both views described above and pointed out that the
legislation provides for the duty to recover losses caused as a result of the adoption by a body of
State power or local self-government of an illegal act only in the event that, in spite of the
illegality of the decision, the person who sustained those losses did not know and could not have
known about its illegality. Therefore, the interest of the person who knew of the illegality of the
decision taken upon his request is not judicially defensible. At the same time, such person is not
devoid of the right to demand either the recovery to him of the amount of unjust enrichment or
making bilateral restitution under the transactions concluded in the pursuance of the illegal
decision.
Practical consequences: it appears that this Judgment changes the Presidium’s previous position
as expressed in the Judgment of 25 April 2006 № 12359/05. The present Judgment provides that
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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.
Tags: losses
Judgment of the Presidium of the Supreme Commercial Court of 22 May 2012 № 17395/11
in the case The Ulianovsk regional union of consumer societies vs The Ulianovsk regional
branch of the Federal Service for State Registration, Cadastre and Cartography
Point of law: whether the Federal law “On Participation in Shared Construction of Apartment
Houses and Other Objects of Real Estate” covers the cases in which not a construction of an
apartment house, but a reconstruction of an existent building takes place?
Alternative attitudes: 1) the Federal Law in question does not cover such cases because the
Town-Planning Code of Russia makes distinction between the notions of “construction” and
“reconstruction”, whereas the purpose of the Federal law is precisely the construction, i.e. the
creation of a new object of real estate; or 2) it does cover such cases, as long as the result of the
reconstruction of an object of real estate is intended to be the creation of an apartment house with
dwelling premises which did not exist prior to the reconstruction, and the apartment house
created thus is subject to the procedure of setting into operation.
Ratio decidendi: the second approach is legally correct.
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.
Tags: construction
Information Letter of the Presidium of the Supreme Commercial Court of 22 May 2012 №
150 “The Review of the Practice of Consideration by Commercial Courts of the Disputes
Connected with the Dismissal of Bankruptcy Trustees”
In this Information Letter the Presidium gave to courts a number of recommendations. It appears
that they mainly aim at curbing an unduly narrow and formal approach shown by courts when
resolving disputes related to the dismissal of bankruptcy trustees.
The Letter says, inter alia, that the question on the dismissal of a bankruptcy trustee may be
considered by court on the basis of the minutes of the meeting of creditors containing the
decision to apply to court with such motion, even in the absence of the motion itself in the form
of a separate procedural document (para 1); this motion may be considered by court alongside
with the complaint against the actions of the trustee, and not necessarily after the latter; that the
contents of the minutes of the meeting of creditors with the decision to apply to court with the
motion to dismiss the bankruptcy manager do not have a binding and limiting effect upon the
court, and the concretisation in those minutes of the violations made by the bankruptcy trustee is
not obliging for the court, because the latter by virtue of its controlling function in the
bankruptcy case is not bound by specific violations referred to in the minutes of the creditors’
meeting (para 4); the failure of the bankruptcy trustee to compensate losses caused by him
within a particular bankruptcy case may serve as a ground for his dismissal in another
bankruptcy case, because such failure means not only the violation by him of the interests of
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persons participating in the former bankruptcy case, but also the non-execution by him of a court
decision that entered into legal force, which necessarily gives rise to well-grounded doubts as to
the lack of danger of violation of rights of participants to the latter bankruptcy case and the real
possibility of their subsequent protection (para 16).
The Presidium also emphasised that the presence or probability of losses is not a necessary
condition for satisfying the motion of the meeting of creditors concerning the dismissal of
bankruptcy trustee. To satisfy such motion, the very facts of violations committed and of the
creditors’ meeting decision on applying to court with such motion are sufficient. Here lies the
difference between two grounds for court consideration of the question on the dismissal of
bankruptcy trustee, that is, between the motion of the meeting (committee) of creditors and the
motion of persons participating in the case (para 9).
Tags: bankruptcy
Information Letter of the Presidium of the Supreme Commercial Court of 24 May 2012 №
151 “The Review of the Practice of Consideration by Commercial Courts of the Disputes
Connected with the Exclusion of a Member from a Limited Liability Company”
In the opinion of the Presidium, a member may be excluded from a limited liability company
only if he commits actions which knowingly inflict harm upon the company, thereby destroying
trust among members and obstructing the continuation of normal activities of the company. In
such circumstances it does not matter in which capacity he committed such actions – as a
director general, manager-employee or as a person acting on the basis of a power of attorney
issued by the company.
Besides, the Presidium pointed out that:
a regular evasion without good reasons from participating in general meetings of
members/shareholders, which deprives the company of an opportunity to adopt important
business decisions may be a ground for excluding the member from the company if the
impossibility to adopt such decisions causes a significant harm to the company and/or
makes its activities impossible or essentially impedes them;
at the same time, the rules on exclusion of a member from the company may not be used
for solving a conflict between the members of the company which results from their
holding different views on the issues of company management, provided that the position
of neither of them is knowingly unlawful. An unlawful behaviour which may serve as a
ground for the exclusion of a member from the company shall take place only when the
voting of the member in the meeting (equally for or against a decision) should knowingly
entail significant unfavourable consequences for the company;
petitions of a member addressed to State bodies, including law-enforcement agencies or
courts, in connection with actions (or failure to act) of the company, its management
bodies or other members constitute lawful ways of protecting his property interests and
therefore may not serve as a ground for his exclusion from the company even in cases
when the facts set out in those petitions would not have subsequently found confirmation.
An exception may be the case when the court would have found that the member did
know or ought to know that he communicated unreliable information when applying to
State bodies with respective demands and complaints;
incomplete paying up by a member of his share in charter capital of the company is not a
ground for his exclusion from limited liability company, since in this case the law
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provides, as a special consequence of member’s failure to act, for the transfer of the
unpaid part of his share to the company;
having due regard to a just balance of interests of the members, the exclusion from the
company of a member possessing a share exceeding 50 per cent of charter capital, is
admissible only in cases when the members of the company do not have, in accordance
with its charter, the right of free exit from the company.
Tags: commercial entities
Judgment of the Presidium of the Supreme Commercial Court of 5 June 2012 № 76/12 in
the case The company “Financial and Industrial Union Sibkonkord” vs The Holding
company “Sibirskii Cement” et al.
Point of law: under which conditions a transaction concluded by a joint-stock company in
violation of a law may be deemed to be invalid upon the suit of a shareholder as being against his
rights and lawful interests?
Ratio decidendi: the Presidium pointed out that a major transaction made in contradiction to a
law may be deemed invalid only if it is clearly unprofitable for the joint-stock company.
Moreover, the grounds for its invalidity must have place either before its conclusion or at the
moment thereof, but not later. The failure to perform or improper performance of a major
transaction by a commercial entity, which brings negative consequences for the latter (for
instance, the loss of deposit), may not serve as a ground for qualifying this transaction as being
detrimental to shareholders, unless it is proved that from the beginning the transaction was
concluded with the original purpose of non-performance or improper performance and that of
inflicting losses upon shareholders.
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.
Tags: invalidation of transactions
Judgment of the Presidium of the Supreme Commercial Court of 7 June 2012 № 16513/11
in the case Rosselkhozbank (as represented by its Maghadan regional branch) vs The
company “Alisa” et al.
Point of law: whether the contract of pledge is invalid if the pledgor lost the right of ownership
to the object of pledge as a result of his improper performance of the purchase-sale contract
under which he previously acquired it?
Alternative attitudes: 1) the contract of pledge is valid and the ensuing rights are preserved,
because at the moment of the creation of the pledge the pledgor did have the right of ownership
to the pledged thing; consequently, the previous owner steps in and takes the place of the pledgor
in pledge-related legal arrangement; or 2) the contract of pledge is invalid because the thing has
been vindicated by the previous owner from the unlawful possession of the pledgeholder.
Ratio decidendi: the Presidium deemed the first attitude to be correct.
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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.
Tags: pledge
Judgment of the Presidium of the Supreme Commercial Court of 7 June 2012 № 14592/11
in the case The company “TGK-9” vs The Perm Regional Branch of the Federal Antitrust
Service
Point of law: whether a third person, that is, a participant of the litigation who does not present
separate demands as to the subject matter of the dispute, may recover litigation expenses?
Alternative attitudes: 1) it is inadmissible because under part 1 of Art 110 of the Commercial
Procedure Code litigation expenses shall be reimbursed only to those persons in whose favour
the court decision has been delivered, and the latter may not affect the rights and duties of third
persons with regard to any party of the dispute, because nothing is recovered from or awarded to
them; or 2) it follows from systematic interpretation of relevant rules of the Commercial
Procedure Code that litigation expenses for remunerating a court representative borne by third
persons in connection with their appeals against court decisions (in particular, in connection with
submission of an appeal) may be reimbursed to a third person who chose an administrative, not a
judicial, way of protecting his violated right, and took part in the case on the side of the
administrative body.
Ratio decidendi: the second approach is legally correct.
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.
Tags: litigation expenses
Judgment of the Presidium of the Supreme Commercial Court of 21 June 2012 № 3352/12
in the case The company “KIT Finans Investment bank” vs The company “Formula
pereezda”
Point of law: whether the impossibility to stop spreading of fire caused by short-circuit may
qualify as an insuperable force (an Act of God or major force)?
Alternative attitudes: 1) it may be regarded as an insuperable force, as long as the obliged person
(custodian) took all necessary fire safety measures; or 2) it may not, because the circumstances
of major force are extraordinary and unavertable phenomena and events whose effect comes
from outside and does not depend on subjective (human) factor.
Ratio decidendi: the Presidium deemed the second view to be legally correct and explained that
“extraordinary” should imply something exceptional, being outside the limits of “normal” or
quotidian, unusual for some or the other living conditions, that does not relate to the risk of life
and may not be taken into account under any circumstances. The extraordinary character of
major force does not allow qualifying as such any fact of life; its distinction from an occurrence
consists in its being based on an objective, and not a subjective, unavertibility.
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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.
Tags: major force
Judgment of the Presidium of the Supreme Commercial Court of 21 June 2012 № 1831/12
in the case “Russian Phone Company” vs The company “Sony Ericsson Mobile
Communicational Rus”
Point of law: whether a choice-of-court clause in an agreement may confer the right to apply to a
competent State court upon only one party and deprive the other party of the same right, thus
leaving to it only the opportunity to apply to an arbitration court?
Ratio decidendi: the Presidium held that such prorogation agreement is not valid, because it
breaks the balance of interests between parties and thus runs counter to legal positions of the
Constitutional Court of Russia and the European Court of Human Rights concerning the
necessity to ensure the equality of procedural rights and opportunities of litigating parties. The
party whose right is violated by such an agreement may also have recourse to the competent
State court, thereby realising its right to judicial protection on equal footing with its
counterparty.
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.
Tags: arbitration courts; arbitration clause
Judgment of the Presidium of the Supreme Commercial Court of 21 June 2012 in the case
The company “Media-Markt-Saturn” vs The Lipetsk Regional Branch of the Federal
Antitrust Service
Point of law: given that a judgment of appellate court, which under Art 288 (part 4) of
Commercial Procedure Code is not subject to cassational appeal, has deemed the imposition of a
fine for a violation of legislation on advertising to be ungrounded and therefore unlawful, but
later the cassational court has confirmed the existence of the violation in the plaintiff’s conduct,
what should be a lawful outcome of such collision of two court decisions, both of which have
entered into legal force?
Alternative attitudes: 1) the judgment of appellate court must be repealed, as being contradictory
to the judgment of cassational court (the view of the panel of judges who submitted the case to
the Presidium); or 2) the consideration of the question whether the law has been breached and
the consideration of the issue of imposing a fine for such breach constitute two relatively
autonomous procedures, and therefore both court decisions should be left in force; or 3)
challenging the decisions and prescriptions of a State regulator and challenging its decree on the
imposition of a fine for such violations constitute an example of interrelated demands; if one of
them may not be a subject of cassational appeal, others also may not be such; therefore, it is the
judgment of cassational court that must be repealed.
Ratio decidendi: the Presidium held that the third interpretation is legally correct.
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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: commercial procedure
Judgment of the Plenary Session of the Supreme Commercial Court of 22 June 2012 № 35
“On Certain Procedural Issues Connected with the Consideration of Bankruptcy Cases”
In this judgment the Supreme Commercial Court has explained:
which court documents should be appended by the creditor to his application on deeming
the debtor to be bankrupt (para 1);
the consequences of repealing or stopping the execution of a court decision, on which
such application of the creditor was based (paras 2-3);
the grounds for terminating proceedings fully or partially in case of eliciting the fact of
the debtor’s bankruptcy application being filed by a person not having a right to do so
(para 5);
the sequence of consideration and the procedural status of several applications on
debtor’s bankruptcy filed with the same court (para 7);
which court should assume jurisdiction in case of a change of debtor’s place of residence
after the initiation of the case (para 8);
procedural peculiarities of considering the so-called autonomous disputes, i.e. the
disputes in each of which not all, but some of parties to a bankruptcy case or parties to a
commercial court procedure concerning bankruptcy participate; besides, there were
specified the set of persons qualifying as direct participants of an autonomous dispute and
the procedure for distributing litigation expenses in bankruptcy cases (paras 14-19);
the conditions under which the time periods for creditors to submit their claims against
the debtor will be deemed to be observed (paras 20-21);
the circumstances which courts should take into account when evaluating the credibility
of the claims in order to avoid the inclusion of ungrounded claims into the register of
claims (paras 24-26);
procedural rights of creditors dependent on the fact of their claims having arisen before
or after the initiation of bankruptcy case (paras 27-34);
grounds for reversal of court decisions delivered within bankruptcy cases, in one of the
procedures for their reconsideration envisaged by law (paras 35-40);
the conditions under which an arbitration trustee may be dismissed.
Practical consequences: the Judgment does not provide for the possibility to reverse inconsistent
court decisions in earlier cases by virtue of Art 311 of the Commercial Procedure Code.
Therefore, its ratio decidendi has only prospective force.
Tags: bankruptcy
Judgment of the Plenary Session of the Supreme Commercial Court of 22 June 2012 № 36
“On Certain Issues Connected with the Application of Chapter III.1 of the Federal law 'On
Insolvency (Bankruptcy)'”
Some earlier explanations related to challenging transactions of the debtor being in the process
of bankruptcy were developed by this Judgment. It had been explained before that an amicable
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agreement with such debtor which was affirmed by a court in a different case in adversarial
proceedings could be contested following the general rules envisaged by the Law on Bankruptcy
for challenging the debtor’s transactions. The new explanations specify that it is not the amicable
agreement but the court ruling that has affirmed it which should be appealed against. This may
be done by either bankruptcy creditors or empowered State bodies believing that their rights and
interests have been violated by the amicable agreement. Such appeal may be filed following the
initiative of an arbitration trustee. If these persons lapsed the terms for the appeal, the court may
toll it, having regard to the moment when the applicant has come to know (or ought to) about the
violation of his rights and interests.
Copies of such appeal (complaint) shall be sent by the applicant to a representative of the
creditors’ meeting (if there is such) which also is notified by the court. All bankruptcy creditors
and empowered bodies which submitted their claims in bankruptcy case, as well as the
arbitration trustee, may take part in considering such complaint, including the right to submit
new evidence and put forward arguments. These persons may not repeatedly and on the same
grounds appeal against the same ruling that affirmed the amicable agreement.
Besides, it is pointed out that transactions of a citizen in case of his bankruptcy may be contested
by any person participating in bankruptcy procedures regardless of whether or not a bankruptcy
trustee has been appointed in such case.
Practical consequences: the Judgment does not provide for the possibility to reverse inconsistent
court decisions in earlier cases by virtue of Art 311 of the Commercial Procedure Code.
Therefore, its ratio decidendi has only prospective force.
Tags: bankruptcy
Judgment of the Presidium of the Supreme Commercial Court of 26 June 2012 № 745/12
in the case Mikhail Kolesnikov, an entrepreneur vs The Inspection of the Federal Tax Service
№ 15 for the City of Moscow
Point of law: whether it is admissible to recover from a State body the expenses for legal services
borne by an entrepreneur in connection with considering in administrative procedure wrongful
complaints of such State body against his actions as a bankruptcy trustee?
Alternative attitudes: 1) the recovery of expenses is inadmissible, because, when filing the
complaints against the actions of the bankruptcy trustee, the State body was employing its legal
right to do so, and the subsequent court findings that such complaints were ungrounded do not
mean that it acted unlawfully (the view of lower courts); or 2) the recovery is admissible in
general civil order as losses borne by the entrepreneur as a result of the violation of his rights by
the State body (the view of panel of judges who submitted the case to the Presidium).
Ratio decidendi: the Presidium relied on the first interpretation and pointed out that: а) the
complaints against the actions of bankruptcy trustee were submitted by the State body when
acting within the limits of its powers and therefore may not be regarded as an illegal action
entailing responsibility, of which the losses demanded by the applicant are a type by virtue of
Arts 15 and 1069 of the Civil Code; and b) the status of the applicant as a bankruptcy trustee
implies that he acts as a professional who has no need in services of bankruptcy consultants’ in
case of his actions being complained against; respectively, in case of his recourse to the
assistance of such specialists he should bear himself the burden of payments for their services.
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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.
Tags: litigation expenses
Judgment of the Presidium of the Supreme Commercial Court of 26 June 2012 №
17769/11 in the case The Baltic Customs Office vs The company “Optimum-Kargo”
Point of law: whether it constitutes an unlawful use of the trademark on the part of an importer to
place a designation which is confusingly similar to the trademark upon shipment-related
documentation (such as invoice, packing list and compliance certificate)?
Alternative attitudes: 1) placing confusingly similar designation upon invoice, packing list and
compliance certificate, which are neither labels not package and are not accessible to consumers
may not constitute an illegal use of the trademark (the view of first instance court and the
appellate court); or 2) an unlawful use of trademark may embrace, inter alia, placing trademark
upon the documentation related to the importation of a commodity into the territory of the
Russian Federation with the purpose to put it into civil circulation (the view of the panel of
judges who submitted the case to the Presidium).
Ratio decidendi: the Presidium has deemed the second interpretation to be legally correct.
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.
Tags: trademarks
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