The arbitration courts have closed for shareholders
YOU does not give corporate disputes on the partythe Arbitration courts should not consider disputes on actions. With such approach the Supreme Arbitration Court (YOU) for the first time has acted. Lawyers are afraid that business can lose possibility to address in the arbitration courts for the permission of the corporate disputes.
in the spring of last year the Constitutional court has refused to recognise monopoly YOU on the disputes connected with transition of the property right to real estate, being in Russia. It seems that now YOU has decided to try destiny and concerning corporate disputes, having tried to forbid their consideration by arbitration arbitrators.
this week dispute of New Lipetsk metallurgical industrial complex (NLMK) has refused to consider YOU and businessman Nikolay Maksimova, having put an end in this business. The conflict has begun concerning 50 % plus one action NLMK which in the autumn of 2007 g - n Maxims was obliged to sell to industrial complex. In the contract of purchase and sale of actions the arbitration reservation contained that in case of possible dispute by a forum for trial there was an arbitration court of the International commercial arbitration court (MKAS) at TPP.
G - well Maksimovu managed to be collected with NMLK through MKAS more than 9,55 mlrd rbl., but the metallurgical company has disagreed with the decision of arbitration arbitrators and has addressed in the state court. The first instance, the cassation and “ a three “ judges YOU have risen on party NLMK, having cancelled decision MKAS. They have referred to item 33 and 225. 1 Arbitrazhno - the remedial code (agrarian and industrial complex) which establish special jurisdiction of the corporate disputes connected with transition of the property right to the actions, to arbitration courts. Hence, according to judges, such affairs nearbitrabelny, that is cannot be considered by the arbitration courts.
the argument YOU about nearbitrabelnosti referring to norms of these articles of agrarian and industrial complex raises the doubts, the head of group of a resolution of disputes of legal bureau Vegas Lex Vadim Kodol makes comments on a collision: “ the Considered argument contradicts a part 6 items 4 of agrarian and industrial complex which provides the right of the parties to transfer to the arbitration courts of the dispute subordinated to arbitration courts “. In his opinion, norms of item 33 and 225. 1 agrarian and industrial complexes are directed only on competence differentiation between arbitration courts and courts of law.
the decision YOU in a part nearbitrabelnosti corporate disputes can create additional legal risks for business, lawyer Baker and McKenzie Anton Maltsev is afraid. After all very many transactions on purchase of actions and shares consist in the Russian companies with the reservation on transfer of disputes on consideration of not state international commercial arbitration. Now in effectiveness of these reservations there are doubts, he considers.
the question arbitrabelnosti such disputes is a subject of steadfast attention YOU, the chairman of judicial structure of court Sergey Sarbash has told daily: “ the Question for us absolutely new, but we monitorim practice of arbitration courts and to say that something is pleasant to us or it is not pleasant, while early. While any positions in this respect YOU did not define “.
When the legislator considers impossible consideration by the arbitration courts of those or other categories of the affairs, corresponding reservations become in the law, the operating director for corporate relations and legal maintenance RSPP Alexander Varvarin marks: “ In my opinion, corporate disputes can be left the arbitration courts. Thus I do not see legal grounds to suggest otherwise “.
If corporate disputes become nearbitrabelnymi, “ business will not win, and will lose " more likely; speaks g - n Varvarin, noticing that presence of possibility of a choice between the state court and arbitration arbitration — “ essentially important thing for business “.