Corporate Disputes Research Articles

Arbitrability of Corporate Disputes in Foreign Doctrine and Foreign Legal Systems

According to the current doctrine of civil law, the subject of law independently exercises civil rights, including the right to judicial protection. The choice of the form of protection is provided to the person whose rights have been violated, and this can also be attributed to the preliminary agreement of the parties to the corporate dispute. It should be noted that due to the length and inefficiency of judicial procedures, more and more attention has recently been paid to issues of alternative dispute resolution. In this regard, the out-of-court form of resolving corporate disputes is of particular interest. Due to the heavy workload of national courts, the issue of out-of-court dispute resolution is becoming increasingly important. At the same time, arbitration is considered a traditional method of resolving disputes even in Roman law. One of the controversial and legally unresolved issues in the theory of arbitration is the possibility of arbitration of disputes. The problem lies not only in the legislative definition of the term “arbitrability”, but also in the lack of clear standards regarding the arbitrability/ non-arbitrability of disputes. The need to study arbitrability is also due to the formation of an ambiguous position in the theory of arbitrability of disputes, including issues of company relationships. Thus, it can be concluded that the principle of arbitrability does not allow for sufficient answers to the question of the arbitrability of disputes with corporate elements. Thus, the need for scientific understanding of the theoretical foundations and the formation of a strong institution of arbitration and a theoretically sound concept of arbitrability both in theory and in practice determined the relevance of the research topic. Keywords: arbitrability, arbitration, corporate dispute, arbitration agreement, non-arbitrability.

The economic security of a commercial corporation as a principle of corporate law

The article considers the economic security of a commercial corporation as a principle of corporate law, formulates its concept and main features. The necessity of institutionalization of this principle in corporate law to improve the sustainability and competitiveness of companies is emphasized. The interests of the corporation in the context of their priority importance for corporate governance and resolution of corporate disputes are considered. The specificity of threats to economic security depending on the organizational and legal form and public or non-public status of the company is proved. The necessity of development of corporate responsibility according to the restitutive model with simultaneous development of legislation and practice of application of retributive measures has been substantiated. The article analyzes Russian and foreign experience and emphasizes the importance of integration of private and public legal mechanisms for effective risk management and threat prevention.

Corporate disputes around the creation of wine geographical indications in Mendoza, Argentina

El actual régimen agroalimentario corporativo y neoliberal está reconfigurando activamente la geografía mundial de la vitivinicultura que conocíamos hasta el momento. La creciente competencia internacional exacerba las estrategias regionales de distinción de los productos y sus mecanismos de patrimonialización. Así lo demuestra la proliferación de dispositivos de normalización y delimitación de zonas productivas. Más allá de las querellas intercontinentales que han suscitado en el pasado, en la actualidad se revelan conflictos y tensiones entre escalas, entrelazando acelerada y frágilmente actores y territorios en la conformación de lugares vitivinícolas que necesitan ser delimitados y reconocidos institucionalmente. En este trabajo analizamos las disputas por la definición de la indicación geográfica del Paraje Altamira en el oasis del Valle de Uco en Mendoza, Argentina, con el fin de desentrañar las estrategias de legitimación desplegadas por actores empresariales, científicos y estatales, y las relaciones de poder que se establecen entre ellos en el marco de la territorialización vitivinícola corporativa. El diagnóstico de este caso de estudio nos permitirá valorar críticamente la emergencia de otras nuevas iniciativas similares que dieron lugar a una compleja y jerárquica producción de escalas.

Determining the amounts of membership interests in the charter capital of a limited liability company as an appropriate way to protect the rights of the member through legal proceedings

In the modern context of corporate law, the study of the effectiveness of the protection of corporate rights of participants in limited liability companies (hereinafter – LLC) is an extremely relevant topic for research. Limited liability companies are the most common organisational and legal form among legal entities for conducting business activities in Ukraine, especially at the levels of small and medium- sized businesses. In this regard, the legislative regulation should be based on accessible and reliable mechanisms for protecting the rights and interests of participants, and quick and fair resolution of internal conflicts that may threaten the viability of the business. The processes of state registration of information about limited liability companies are defining components of the transparency of business activities of this type of legal entity. The article focuses on the importance of the unity of law enforcement practice and legal positions of commercial courts in consideration of corporate disputes, which is an important factor for the protection of property rights, stimulation of investments, and ensuring the stability of the corporate sector of the economy. The legal positions of the Supreme Court regarding the exhaustive list of ways to protect the rights of an LLC member have been explored. It is noted that to protect the rights of members of limited liability companies in cases where their corporate rights have been violated, it is important to consider the provisions of part 5 of article 17 of the Law of Ukraine “On State Registration of Legal Entities, Individual Entrepreneurs and Public Organisations”. An analysis of judicial decisions reveals controversial issues regarding the application of the provisions of this Law. Within this article, an assessment of the effectiveness of current mechanisms for protecting corporate rights is provided, opportunities for their improvement are identified, and recommendations for improving legislative regulation and judicial practice are developed. Special attention is paid to the analysis of ways to protect the rights and interests of participants in the context of state registration of changes to the charter capital and the amounts of membership interests, as well as the assessment of the proportionality and adequacy of the applied measures.

Restorative Justice in Corporate Dispute Resolution as Business Actor in Indonesia

Indonesian limited liability company (Perseroan Terbatas or "PT") is a preferable entity selected by business actors in conducting activities. In this context, the characteristics of PT grant persona standi in judicio, as a legal subject capable of initiating and defending lawsuits in civil and criminal courts under Law No. 40 of 2007. Therefore, this article aimed to discuss the implementation of corporate accountability in the context of PT, and the potential for restorative justice in resolving disputes, relying on secondary sources such as theories, norms, and legal principles. The results show that 1) the application of restorative justice is consistent with the corporate entity's existence to maintain business continuity while upholding accountability as a legal subject, 2) Restorative Justice, centered on fundamental elements of encounter, repair, and transform, represents an effort towards the well-being and integrity of victims, perpetrators, and society. The method enhances legal certainty and protection for parties in PT-related business activities.

Article: Statutory Arbitration Clauses and the Supplemental Swiss Rules for Corporate Law Disputes in Switzerland

On 1 January 2023, revisions to the corporate law came into force which, among other things, allow Swiss companies to include a statutory arbitration clause in their articles of association (AoA) in respect of corporate disputes. Unless drafted otherwise, such arbitration clauses will bind the general meeting, the board of directors, the auditors and the shareholders. In such cases, corporate disputes will be conducted solely in the private sphere. In this regard, the Swiss Arbitration Centre published a Model Statutory Arbitration Clause and supplemental rules for corporate law disputes in Autumn 2022. This article analyses the new possibility for statutory arbitration clauses in Switzerland and evaluates the importance of the supplemental rules in practice. Corporate Law Disputes, Statutory Arbitration Clauses, Swiss Rules, Supplemental Swiss Rules for Corporate Disputes, Arbitration, Switzerland, Lex Arbitri, Comparative Analysis, Participation of Third Parties, Confidentiality

Defects in Corporate Legislation as a Factor in the Victimization of Corporation Founders

In the article, the author examines the impact of shortcomings in corporate legislation on the level of victimization of corporate participants. The author raises problems within the framework of the analysis of cases on corporate disputes. Special attention is paid to contradictions and gaps in corporate legislation, which affects the participants of the corporation. The author analyzes how these defects can lead to victimization of corporate participants, reveals the causes and consequences of gaps and contradictions in corporate legislation. The author suggests possible solutions to eliminate these defects and reduce the level of victimization. The article raises the question of the need to develop the concept of “corporate dispute”. Its difference from the concept of “corporate conflict” is considered.

Current issues of determining the nature of a corporate dispute

Current issues of determining the nature of a corporate dispute

The concept of corporate conflict and alternative ways to resolve it in the Asia-Pacific countries

The subject of this study is the concept of "corporate conflict", its problematic aspects when defining, signs, as well as alternative ways to resolve such conflicts in different countries of the Asia-Pacific region. The author examines many diverse approaches to the concept of "corporate conflict", based on the opinion of scientists from the Asia-Pacific region and draws conclusions based on the selected literature. The author also examines in detail alternative ways of dealing with corporate conflicts in such Asia-Pacific countries as the USA, China, Japan. The author highlights the types of alternative dispute resolution unknown to the legislation of the Russian Federation, such as mini-trial, common in the United States, and formal commercial mediation used in the PRC. Attention is also paid to alternative dispute resolution methods such as mediation, arbitration, ombudsman and the combination of mediation and arbitration. The author uses such scientific research methods as description, analysis, synthesis, comparative legal method, sociological method. The scientific novelty of the study lies in the fact that it includes an analysis of existing alternative mechanisms for resolving corporate disputes in the law of the countries of the Asia-Pacific region. The author also identifies the signs and features of the concept of "alternative conflict" based on the research of a group of scientists from different countries and gives his own definition of this term, which is the most complete, and, in the author's opinion, takes into account all the features of this concept. The conducted research can help entrepreneurs understand the possibilities of out-of-court dispute resolution when doing business in the countries of the Asia-Pacific Region, and can also contribute to the scientific community to evaluate special types of alternative dispute resolution methods and consider the possibility of applying these methods in practice in the Russian Federation.

Mediation as a way to resolve corporate disputes

Mediation as a way to resolve corporate disputes

Consideration and Resolution of Family and Corporate Disputes: Procedural Problems

The common property of the spouses may include shares or shares in the authorized capital of the company, therefore, various procedural problems related to family and corporate law arise in the practice of the courts. Purpose of the work: on the basis of doctrinal and empirical analysis to resolve some procedural problems in the consideration and resolution of family-corporate disputes. Brief conclusions. When considering a dispute on the division of a share in a company, the court should bring up for discussion the issue of the possibility of obtaining compensation for it, which can prevent further corporate disputes. The fact of the presence of a prohibitive clause in the charter of a legal entity should not be included in the subject of proof in a family dispute on the division of a shares. The presence of a court decision on the recognition of ownership of a part of the share and the disagreement of other participants in the corporation serves as the basis for paying the actual value of the shares. The spouse has the right to apply to the arbitration court to challenge the corporate decision if he violates his property right, but in this case an increased standard of proof will apply, since the plaintiff is obliged to provide indisputably evidence of the disagreement at the time of the legal actions, their economic inexpediency. &Keywords: family dispute, corporate dispute, jurisdiction, proof, shares

DISTINCTIVE FEATURES OF CORPORATE DISPUTE RESOLUTION

This article covers the processes from the stage of applying to the courts for corporate disputes, which economic courts have jurisdiction over, to their consideration and resolution by the courts, as well as the specific features of the resolution of corporate disputes. In particular, the transfer of corporate disputes from courts of general jurisdiction to economic courts and issues related to the institution of relevance in this regard (jurisdiction) are covered with examples from judicial practice and given the conclusion that all disputes arising from corporate relations and public legal relations that are causally connected with them should be resolved by economic courts. As a result of this, it is justified that the effective protection of the rights of the participants in the corporate relationship through the court will be granted. Moreover, special emphasis is placed on the aspects of corporate disputes that are different from other types of disputes in the resolution of corporate disputes by economic courts. Some mistakes and shortcomings that are made in practice and various approaches are analyzed, and given a personal author’s position, which is expressed based on foreign experience in this regard, for the unification of judicial practice. Besides that, there are some proposals for clarification in the decision of the Plenum of the Republic of Uzbekistan.

Some Problems of Arbitrability of Corporate Disputes

Some Problems of Arbitrability of Corporate Disputes

On Unacceptability of Formalism During Arbitration Court Adjudication on Corporate Disputes Complicated by the Abuse of Law

On Unacceptability of Formalism During Arbitration Court Adjudication on Corporate Disputes Complicated by the Abuse of Law

Arbitrability of Corporate Disputes: Development Tendencies

Arbitrability of Corporate Disputes: Development Tendencies

ПРО ВИЗНАЧЕННЯ РОЗМІРУ СТАТУТНОГО КАПІТАЛУ ТА ВИЗНАЧЕННЯ ЧАСТОК УЧАСНИКІВ ТОВ ЯК СПОСОБИ ЗАХИСТУ КОРПОРАТИВНИХ ПРАВ

The effectiveness of ways to protect corporate rights, including members of a limited liability company (LLC), and developing a catalog of these ways is one of the key problems for the theory of Corporate Law. The law-enforcement practice of economic courts dealing with corporate disputes, the number of which has increased significantly in recent years, is an important factor in ensuring the protection of property rights, creating favorable conditions for investment activity in the country, and stable functioning of the corporate sector of the economy. The article draws attention to the fact that at the moment the decisions of the Supreme Court are dominated by the position that a comprehensive list of ways to protect a member of an LLC who believes that his right or legal interest is violated by changes in the composition of members or the distribution of shares of members of the company is contained in Art. 17 of the Law of Ukraine “On State Registration of Legal Entities, Individual – Entrepreneurs and Public Organizations”. On the basis of the analysis of the current practice of the Supreme Court, controversial issues of the court's application of the norms of Part 5 of Article 17 of this Law (in particular, in cases where the participant of the LLC has not fulfilled his obligation regarding property participation in the authorized capital of the company). It is argued that when considering corporate disputes, the principle of proportionality should be applied: the reduction of a participant's share in the authorized capital of an LLC is not a violation of his corporate rights, if such a participant has not made an additional contribution to the company's authorized capital in accordance with the decision of the general meeting to increase the amount of authorized capital. Attention is drawn to the fact that part 5 of Art. 17 of the Law of Ukraine “On State Registration of Legal Entities, Individuals Entrepreneurs and Public Organizations” does not establish as such methods of protecting the rights and interests of participants in disputes about the size of shares in the authorized capital or the composition of members of a limited liability company. For the purposes of Part 5 of Art. 17 of this Law, a court decision of the relevant content is considered as an alternative to the decision of the general meeting of participants. In the court decision, as a document on the basis of which relevant registration actions are carried out, the size of shares in the authorized capital, the size of the authorized capital must be specified as the factual circumstances of the real property participation of the participants in the authorized capital of the company established by the court. The court can protect the right of the participant in the way chosen by the plaintiff, while the lawsuit claims to determine the size of the authorized capital of the LLC and the size of the shares of the participants in the company can be considered by the court as a derivative together with the main claim that protects the violated right (invalidation of the decision of the general meeting of participants, etc.).

Corporate Governance, Commercial Arbitration And Resolution Of Corporate Disputes In Nigeria: Losses Or Lessons?

There is no doubt that companies do have conflicts with other companies or internal conflicts within the company. In essence, conflict resolution is inevitable in corporate governance and arbitration has proven to be one of the means through which it can be resolved. This paper seeks to evaluate the importance and efficiency of Alternative Dispute Resolution (ADR) mechanisms, particularly arbitration in corporate governance and in solving corporate governance disputes, its growth and success rate compared to the traditional court systems. The paper further assesses the capability and effectiveness of the system in, and against corporate disputes. It also identifies its weaknesses as a whole and within the framework for corporate governance, while identifying and recommending international best practices for its use in resolving corporate governance disputes in Nigeria when juxtaposed with other jurisdictions. In addition, the paper stresses the importance of having a convenient business dispute resolution mechanism in order for businesses to thrive even in times of adversity, while also maintaining a cordial relationship, important to corporate governance in order to achieve the goals and objectives of the investors. The paper adopts the doctrinal methodology of research through analysis of opinion of authors, case laws, and statutory provisions relating to the subject, which are examined for the purpose of further analysis and contribution to existing body of knowledge. The paper recommends among others the holistic adoption of arbitration in resolving corporate governance from litigation process as it is done in sports disputes by organisations such as FIFA in order to maximise the gains arbitration brings to the commercial investment.

Some issues of securing claims arising from corporate legal relations

Issues of corporate relations and corporate governance are topical in the development of the country's economy. As President of the Republic of Kazakhstan K. Tokayev noted in his messages, dozens of national holdings, thousands of state-owned enterprises, and quasi-state organizations operate in the country. However, there is a question about the results and quality of their work, and only in one or two cases is the corporate governance system up to par. This suggests that in other organizations it is necessary to develop a corporate governance system. Its place in the economy is important, because due to the lack of an international corporate governance system of the appropriate level, enterprises and organizations cannot raise funds through the stock exchange. In the article, the author gives the scientific concept of "corporation", "corporate disputes", analyzes the short stories of substantive civil law on the definition of new categories of corporate disputes, their occurrence, legal entities. Suggests ways to identify actual problems related to the definition of departmental subordination of corporate disputes, namely the contradictions of departmental subordination and understanding the reasons that caused them, and their resolution. Emphasizes the features of substantive and procedural law in relation to corporate disputes. In addition, during the transitional period of the economy of Kazakhstan, changes and additions are made to some sections of the law «On a joint-stock company», which provides an effective form of management and business of a joint-stock company. Key words: corporation, corporate dispute, joint-stock company, legal entity, shares, corporate relations, dividends, earnings per share, share market price, court, lawsuit.

Jurisdictional remedies for corporate rights in Ukraine: Sub-standard remedies in corporate disputes

Jurisdictional remedies for corporate rights in Ukraine: Sub-standard remedies in corporate disputes

Jurisdictional remedies for corporate rights in Ukraine: Sub-standard remedies in corporate disputes

In the context of the European integration processes taking place in Ukraine, there is a convergence of the national legal system with the legal principles and provisions of the European Union, including in the field of corporate legal relations. The main purpose of this study was an independent study of problematic issues that arise upon the implementation of sub-standard remedies in corporate disputes to develop author’s conclusions and recommendations to ensure sustainable and effective law enforcement practices. The methodological framework of this study included the principles of cognition of social phenomena in their historical development, interrelation, and interdependence, a dialectical approach to the study of theory and practice, the history and current state of law. The leading methods were historical, comparative legal, and dialectical. Based on the results of the investigation, the study covered the leading issues of the state of modern legal regulation of sub-standard remedies in corporate disputes in Ukraine; analysed the main issues of theoretical certainty regarding sub-standard remedies in corporate disputes and suggested new vectors of reforms concerning further improvement of law enforcement practice. The author’s conclusion on the need to ensure the unity of law enforcement practice by introducing changes to the legislation of Ukraine towards detailed regulation of sub-standard remedies in corporate disputes, which also correlates with the reformation vectors of development of Ukraine in the context of European integration, will become a stable basis for further scientific research and legislative transformations in the field under study.