Trust Management of Other People's Property: Reform on the Warpath

The paper describes possible ways to reform the rules on trust management agreements in connection with the upcoming reform of Part II of the Civil Code of the Russian Federation. Currently, the reform of this part of the Civil Code of the Russian Federation is being carried out in relation to financial transactions, but the rules on intermediary transactions have not been changed, while the situation is complicated by the fact that the reform of property law has not taken place. The improvement of the provisions of Chapter 53 of the Civil Code of the Russian Federation on trust management agreements is due to the development of economic relations for the management of corporate rights, securities, investments, pension contributions, the emergence of a number of new forms of investment activity, as well as a significant difference in the relationship of "consumer management" of property in family and inheritance law (management by virtue of the law), as well as "professional management" of property in investment and other business areas (voluntary transfer of property to management).The Anglo-American experience of the trust, as well as other models of "trust property" cannot be borrowed by Russian law in any form. The ownership right must remain unitary and cannot take any form. In view of this, the paper suggests using European alternative models of managing someone else's property in the form of mandatory legal institutions for conducting someone else's business using various forms of representation (direct and indirect) instead of the Anglo-American trust. The author considers the possibility of differentiating the professional and non-professional regime of managing someone else's property, the nature of the beneficial interest, the rules of segregation of the management object and the nature of the trustee's responsibility.

CONCEPT, FEATURES AND TYPES OF CORPORATE DISPUTES

The article is devoted to the legal nature of corporate disputes, the study of their criteria and types. Deficiencies in cur rent definition of corporate dispute in the economic procedural legislation, as well as the lack of a single concept of corporate dispute in the legal doctrine are revealed. As a result, the problem of understanding the essence of corporate dispute and determining the jurisdiction of disputes arising from corporate relations remains crucial. It is concluded that a corporate dispute is a dispute between a legal entity of corporate type and its participant (foun der, shareholder, member), including a participant who left, related to the acquisition, exercise, termination of corporate rights, creation of a legal entity, implementation of corporate management, activity and termination of the legal entity. It is proposed to consolidate this definition of corporate dispute in paragraph 3 of part 1 of Art. 20 of the Economic Procedural Code of Ukraine. The key features of the corporate disputes are determined and characterized: content; special subject composition; grounds and circumstance in proof; plurality and exclusive nature of remedies in such disputes. It is established that the content of corporate dispute is corporate relations, which the legislation currently defines only through corporate rights. The necessity of complex understanding of corporate relations is substantiated and it is proposed to consider them in part 3 of Art. 167 of the Economic Code of Ukraine as relations related to the acquisition, exercise, termination of corporate rights, creation of a legal entity, implementation of corporate management, activity and termination of a legal entity. Based on the analysis of the features of corporate disputes, research of scientific approaches and relevant case law, the classification of such disputes is carried out. In particular, corporate disputes are proposed to be classified according to subjective, substantive criteria, as well as on the grounds of their occurrence. It is established a list of disputes that belong to corporate and distinguished them from related disputes. In order to resolve the problem of jurisdiction of disputes arising from corporate relations, it is proposed to enshrine in part 1 of Art. 20 of the Economic Procedural Code of Ukraine list of corporate disputes.

Peculiarities of notary protection of corporate rights of legal entities

In modern conditions of development and reforming the sources of legal regulation of private law relations, questions of their research have become especially actual. Approaches aimed to consolidate new, more appropriate mechanisms for regulating well-known legal institutions in the civil law of Ukraine have emerged. Article 9 of the Civil Code of Ukraine stipulates that its provisions are subject to application for the settlement of relations that may arise in the fields of environmental protection, use of natural resources, family, labor relations, if they are not regulated by other legislative acts. The above determines the study, including the features of notarial protection of corporate rights of both legal entities and comparison with the rules of such protection of the rights of other partic-ipants in civil relations. Corporate rights are the rights of a person whose share is defined in the authorized capital (property) of a busi-ness organization, including the authority to participate in the management of such business organization, receiving dividends (a certain share of profits) and assets in case of liquidation, as well as other laws and statutory documents. Corporate rights may belong to individuals and legal entities, the state of Ukraine, the Autonomous Republic of Crimea and territorial communities. Taking into account the legal nature of corporate rights, their definition, in par-ticular, through the possibility of receiving dividends and part of the property as a result of liquidation, corporate rights may belong to legal entities, including, for example, companies, cooperatives, farms, private enterprises and more. At the same time, in the article it has been substantiated the approach according to which the consolidation of provisions on the state, the Autonomous Republic of Crimea and territorial communities as legal entities under public law is inexpedient and premature.

The right to information in the legislation on corporate relations: national and foreign regulation experience

The purpose of the article is to carry out a theoretical and legal analysis of the right to information in national and foreign legislation on corporate relations and to develop substantiated theoretical conclusions on the improvement of national corporate legislation. Methodology. The following general scientific methods were used in the process of research object analysis: the method of analysis, synthesis, deduction, abstraction, comparison, system-structural, structural-logical methods. Comparative legal and formal legal methods have become the basis for the analysis of national and foreign corporate legislation, identification of similarities and differences in the general principles of respective legal relations regulation. Results. The study found that the right to information is a guarantee of corporate rights and legally protected interests of corporate legal entity (corporation) members, as information enables corporation members to exercise their corporate rights properly. The analysis of national legislation gives grounds to state that the legal norms enshrining the right to information in corporate legal relations and the order of its realization, are formulated unsystematically and in an abstract way. National corporate legislation acts do not contain a detailed list and types of information to which a corporation member is entitled. Scientific novelty Analysis of the main corporate legislation acts of the United Kingdom of Great Britain and Northern Ireland, the Commonwealth of Australia and Canada gives ground to state that the right to information in corporate relations is considered to be the right to any information about the corporation in the Anglo-Saxon legal family. Practical significance. The need of making changes to national corporate legislation acts in the process of recodification of the civil legislation of Ukraine has been proven. It has been proposed to recognize any information about the corporation and its activities as an object of corporate relations whether this information directly or indirectly concerns the exercise of members’ corporate rights or performance of respective duties, and to detail the way of the right to information realization in corporate legal relations.

Legal basis and directions of improving the corporate responsibility

The paper examines the current state of legal regulation of corporate responsibility, identifies prospects for reforming the institution of corporate responsibility to ensure compliance with corporate rights. In particular, it was found that a corporate agreement creates a different nature of the relationship (both mandatory and corporate), it has a binding nature, so in case of violation may be applied civil liability for failure or improper performance of obligations. At the same time, corporate responsibility differs from civil law (classical) liability in the circle of responsible persons, the procedure for bringing to justice, corporate responsibility measures, etc. The case law illustrates that it is possible that a party to a corporate agreement does not systematically comply with the terms of the agreement, for example, does not participate in the general meeting of the corporation or votes against it with other parties to the agreement, which actually calls into question the successful achievement of corporate goals. agreement and its effectiveness as a regulator of relations for the joint management of corporate rights. In this case, an effective way to protect the rights of the parties to the contract is the obligation of the infringer to alienate its share in the authorized (composed) capital (shareholding) in favor of other participants in the corporate agreement at market or pre-agreed price. However, it is noted that the possibility of establishing an obligation to sell shares as a sanction for breach of corporate agreement raises some doubts. In fact, such an obligation is a restriction on property rights. It is proposed to solve this dilemma by reforming the institution of corporate responsibility for non-performance or improper performance of corporate obligations that correspond to the corporate rights of participants in the direction of separating it into a separate type of legal liability. In particular, it is proposed to supplement the Law of Ukraine “On Limited and Additional Liability Companies” Art. 7 “Corporate liability” reads as follows: “in case of non-performance (improper performance) of corporate obligations established by law, contract and constituent documents of the company, corresponding to the corporate rights of participants, sanctions in the form of compensation and exclusion of the participant may be applied”.

Who Turned Multinational Corporations into Bearers of Human Rights?

Who turned multinational corporations into bearers of human rights? This contribution analyses the recognition and transformation of the idea of legal persons as rights holders from a rather isolated and restricted phenomenon in some domestic contexts, into a broader and fully-fledged recognition of corporations as human rights bearers in international law. Throughout the last decades, the highly contested and by no means obvious recognition of corporations as independent right holders has become a salient discursive element in two fields of international law; international human rights law and international investment law. By inquiring into the role of historical contingency, we analyse the interplay between events and discursive structures that led to the creation of corporate human rights. We argue that this development can be traced back to three historical events post-1945: First, the inclusion of legal persons in the drafting process of the European Convention on Human Rights (ECHR) and its First Additional Protocol in the late 1940s. Secondly, the jurisprudence of the European Court of Human Rights (ECtHR), peaking in the 1980s, which effectively promoted and expanded corporate rights. Thirdly, the migration of corporate human rights into the realm of investment arbitration in the early 2000s. Ultimately, we situate this critical re-description of corporate human rights in the debate on counterfactual thinking and the problem of false contingency, asking the question whether an alternative course of events would have been possible.

Stimulating Flexible Citizenship

This paper explores the relationship between migration and integration policies in the Netherlands, diaspora policies in India, and the transnational practices of Indian highly skilled migrants to the Netherlands. We employ anthropological transnational migration theories (e.g., Ong 1999; Levitt and Jaworsky 2007) to frame the dynamic interaction between a sending and a receiving country on the lives of migrants. This paper makes a unique contribution to migration literature by exploring the policies of both sending and receiving country in relation to ethnographic data on migrants. The international battle for brains has motivated states like the Netherlands and India to design flexible migration and citizenship policies for socially and economically desirable migrants. Flexible citizenship policies in the Netherlands are primarily concerned with individual and corporate rights and privileges, whereas Indian diaspora policies have been established around the premise of national identity.