Changes in the Regulation of Obligations and Contracts
Starting from June 1, 2015, the new provisions of the Civil Code of the Russian Federation devoted to the law of obligations have entered into full force into effect. We have selected 20 amendments relevant to business that we consider to be the most significant ones:
principle of good faith (1)
culpa in contrahendo (2)
preliminary contracts (3)
during the structuring of transactions
framework contracts (4)
subscription agreements (5)
during the execution
inter-creditor agreements (6)
cancellation fees (7)
interest on monetary claims (8)
counter performance (9)
breach of contract
proof of the amount of damages (10)
interest for violations of monetary obligations (11)
abstract and concrete damages in substitute transactions (12)
after the execution of contracts
good faith after termination of contract (13)
mergers and acquisitions
representations & warranties (14)
indemnification of losses, unrelated to the infringement of
obligations (indemnity) (15)
contingent transactions (depending on the will of the parties) (16)
the option to contract and optional contracts (17)
|for corporate relations||
specific performance (18)
1. PRINCIPLE OF GOOD FAITHThe principle of good faith was applied by courts in the past, but it was not until 2013 that it was included into the general provisions of the Civil Code. The recent amendments have defined it and extended its effect to debt relations at the legislative level.
In accordance with the new provisions, non-breaching parties should respect each other’s rights and legitimate interests by providing the necessary mutual assistance to achieve the goal of their obligations, as well as by supplying each other with necessary information.
It is expected that it will be easier now for courts use the good faith standard in the performance of the obligations as a guiding principle to call to account bad faith counterparties, including where the contract provisions do not expressly allow this.
2. CULPA IN CONTRAHENDOThe amendments have introduced the institute of liability for bad faith negotiations (culpa in contrahendo) into the Russian law. There is now an opportunity to call to account bad faith counterparties for providing incomplete or inaccurate information, for unjustified termination of negotiations, etc.
For example, the good faith party can now recover the costs of negotiations.
3. PRELIMINARY CONTRACTSIn accordance with the amendments, a preliminary contract must contain a condition on the subject matter, as well as the terms and conditions pursuant to which agreement must be reached at the time of conclusion of the preliminary contract at the demand of one of the parties. If the parties disagree on any conditions of the main contract, the right to identify such conditions in the decision lies with the court. The right to file a claim to compel the other party to execute the contract is limited by 6 months.
4. FRAMEWORK CONTRACTSSuch contracts shall contain the general terms and conditions of the relationship between the parties that can be later specified and defined in separate contracts. The concept has been applied for a long time, but it is the first time it has been legislatively regulated. Before, courts have recognized such contracts as null and void, which was later rectified by the Supreme Commercial Court of Russia.
5. SUBSCRIPTION AGREEMENTS
Despite their common use in practice, courts have often declared the provisions of such contracts to be null and void, if the customer in the subscription agreement did not actually use the services thereunder. Now, the law recognizes that the contract may provide for a fee for the possibility to receive the service.
6. INTER-CREDITOR AGREEMENTSThe new amendments have introduced rules especially beneficial for participants of syndicated lending or massive investment projects. Creditors are authorized to conclude agreements on the procedure of discharging of their claims of the same type to the debtor, including the priority of such claims and disproportionality of allocation of performance. A breach of this agreement incurs adverse consequences for the creditor. However, such agreements are not binding upon the debtor and third parties.
7. CANCELLATION FEESStarting from June 1, 2015, it is possible for the contract to provide for the unilateral refusal of obligations (related to business activities) subject to monetary compensation (the so-called cancellation fee). Initially, this rule was applied only to contracts for services, but under the amendments it applies to all types of business contracts.
8. INTEREST ON MONETARY CLAIMSThe creditor is entitled to receive interest on the indebtedness for the period of the borrowing from the debtor, the so-called legal interest (Article 317.1 of the Civil Code). The fundamental difference of this article from Article 395 of the Civil Code is its non-punitive nature: the interest can be recovered even if there is no breach of the obligation. The rate of interest on monetary claims shall be determined based on the Central Bank of Russia refinancing rate.
Practicing lawyers believe that this new rule may entail contractual and tax risks. Some suppose that there is a possibility of charging of interest on paid advances, and in the case of failure to collect interest – of claims from tax authorities.
9. COUNTER PERFORMANCE
The party to the obligation that provides for counter performance is not entitled to claim enforcement in court without delivering what it owes to the other party.
10. PROOF OF THE AMOUNT OF DAMAGESThe new law confirms the rule established in the practice of the Russian Supreme Commercial Court: uncertainty in amount of damages shall not result in a dismissal of the claim for their recovery. The amount of damages should be proven with reasonable certainty. But even if the amount of damages has not been proved with a reasonable degree of certainty, the court must determine their amount based on the principles of fairness and proportionality of responsibility to the violation of the obligations.
11. INTEREST FOR VIOLATIONS OF MONETARY OBLIGATIONSThe procedure of calculation of interest for breach of monetary obligations has been changed: now, their default amount is determined based on the average bank interest rates on individuals’ deposits. Previously, the courts used the refinancing rate for this purpose, guided by clarifications of higher courts. Moreover, this practice has been stable to date, despite the fact that the Russian Central Bank has not updated the refinancing rate since the end of 2012, when it was set at 8.25%.
This situation has led to a significant difference between the actual interest rate used for lending to legal entities and the rate used by the courts. From now on, the rate to be used will correspond more closely to the potential interest rate for the use of money. For example, on June 15, 2015, the rate on such deposits in the Central Federal District was 11.7%.
The contract may provide for a different rate.
The court may reduce the contract rate if it considers it to be disproportionately high.
12. ABSTRACT AND CONCRETE DAMAGES IN SUBSTITUTE TRANSACTIONThe possibility of the good faith party to recover the difference between the price of the terminated contract and the substitute transaction (specific losses) from the wrongdoer is now set as a general rule.
If there is no substitute agreement, it is possible to recover the difference between the current price for the goods, works or services and the price of the terminated agreement (abstract losses) from the bad faith counterparty.
13. GOOD FAITH AFTER TERMINATION OF CONTRACTThe standards of good faith now apply not only to contractual, but also to post-contractual relations. Parties should equally respect each other’s rights and legitimate interests after the termination of the contract.
14. REPRESENTATIONS & WARRANTIES
The new regulation imposes an obligation to indemnify the counterparty in case of false assurances on the circumstances relevant to the conclusion of the contract (the contract may also provide for a penalty in this case). If the information is material, the party shall also be entitled to withdraw from the contract.
In business relations it does not matter if party providing the information knew about its unreliability.
Most of these rules are dispositive, and the parties may provide for other provisions in the contract.
15. INDEMNIFICATION OF LOSSES, UNRELATED TO THE INFRINGEMENT OF OBLIGATIONS (INDEMNITY)The legislation now envisages an opportunity of the parties to agree in advance on the compensation for their losses, which are not connected to the violation of the obligations; for example, in cases of impossibility of performance or lodging claims by third parties or public authorities to the party or a third party specified in the contract. The agreement between the parties shall determine the amount of compensation for such losses, or the procedure for its determination. The law provides that the court may not reduce the amount of such compensation, except in cases where it is proved that the party deliberately facilitated an increase of the losses.
The rule is applied mainly in business relations.
16. CONTINGENT TRANSACTIONSThe so-called potestative conditions of performance of obligations (i.e., those entirely depending on the will of the party) have been introduced into the law for conventional transactions. Previously, such conditions were often recognized as invalid resulting in the annulment of transactions. The amendments have opened a wide range of risk-free opportunities for structuring transactions.
17. THE OPTION TO CONTRACT AND OPTIONAL CONTRACTSThe option to contract means that one party grants to another party the right to conclude a contract on the terms specified in the option within a certain term (by default constituting 1 year). The option may provide that acceptance is only possible upon the occurrence of certain conditions, including those depending only on the will of the parties.
Under the optional contract, one of the parties has the right to require from the other party the commission of the actions provided in the optional contract, exercisable within a certain term.
Before, in practice parties used the concepts of the option and optional contracts, risking a court declaring them a nullity, or used foreign jurisdictions for structuring transactions.
Now, the parties can make an option contingent on any conditions, including those depending only on the will of the parties (P.16 above). It is expected that this will make M&As more predictable, and the parties will subject them more frequently to the Russian law.
18. SPECIFIC PERFORMANCEThe new law has set forth a general rule: in case of default, the lender has the right to demand specific performance in court. Previously, in many cases such a requirement was considered to be unenforceable and only damages could be awarded. Courts usually awarded specific performance only in case of requirement to transfer a specific item. For example, enforcing the execution of a corporate agreement was often impossible.
It is expected that astreinte (the judicial penalty) will contribute to the efficient application of this standard.
19. ASTREINTEThis institute first appeared in the practice of the Supreme Commercial Court of the Russian Federation. Astreinte is a judicial fine charged where the defendant does not perform the judgment voluntarily. It differs from an administrative fine (of up to RUB 100,000) that should be paid to the state budget and is rarely used in practice. The law does not limit the amount of astreinte (it should be determined by the court on a case-by-case basis), which is awarded to the winning party. Courts have already put it into practice.
20. CESSATION OF VIOLATIONS OF OBLIGATIONS OF THE DEBTOR (INJUNCTION)A creditor in a negative obligation (the obligation to abstain from action) not only has the right to claim compensation of damages, but also is entitled to demand that the debtor cease its acts by presenting an independent claim to the court, if the debtor has violated the obligation to refrain from such acts. It is also used in case of default on such obligations. Implementation of such a judgment can be secured by an astreinte.
This remedy can be efficient in case of violation of obligations of the parties not to compete with each other or in case of violation of a corporate agreement to refrain from selling the shares during a certain term.
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© Mosgo & Partners. Moscow, 2015.