Сorporate disputes

The concept of a corporate dispute is completely derived from the concept of corporate legal relations: it is a dispute that arose from corporate relations complicated by conflict. Corporate dispute is undoubtedly an economic dispute: corporate relations are relations in the sphere of management (that is, economic relations), therefore, procedural norms on jurisdiction must reproduce the division of material legal relations according to their essential features.

For a long time corporate disputes in no way stood out in the legislation and were scattered over jurisdiction between courts of different jurisdictions.

The tendency to separate corporate disputes in a separate type of disputes was formalized almost 10 years ago with the adoption of the Law of Ukraine of December 15, 2006 No. 483-V “On Amendments to Certain Legislative Acts of Ukraine on Determining the Jurisdiction of Cases on Privatization and Corporate Disputes” , by which cases arising from corporate relations in disputes between an economic company and its participant (founder, shareholder), including a participant who has left, as well as between participants (founders, shareholders) related to the creation, operation, management and termination of the activities of this society, except labor disputes, was attributed to the jurisdiction of economic courts.

The Law of Ukraine of October 10, 2013 No. 642-VII “On Amendments to Certain Legislative Acts of Ukraine Concerning the Improvement of the Legal Regulation of the Activity of Legal Entities and Individual Entrepreneurs” established that economic courts are subject to disputes concerning participation not only in business entities, and in any other legal entities in which relations arise that may be considered corporate.

Of course, sometimes there arises the question of delimiting corporate disputes from corporate disputes, that is, disputes that arise in a sphere adjacent to corporate relations, but in one way or another affect them, in particular, family and hereditary disputes with corporate specifics (on accession in corporate enterprises of the beneficiaries of the participants, division of the property of the spouses, which includes shares, shares, shares), disputes related to the conclusion, modification, termination, performance or recognition of void dogoids about the opening and servicing of securities accounts in depository institutions, purchase and sale agreements, exchange of shares, stakes (except for disputes related to violation of the preemptive right to purchase shares and stakes).

Economic courts systematically improve the criteria for delineating corporate disputes from disputes adjacent to corporate disputes, and it can not be said that the recognition of a dispute by the corporate should automatically mean recognition of its economic subordination.

Therefore, despite the existence of a number of controversial issues regarding the jurisdiction of individual corporate disputes, one can observe a steady trend towards the allocation of corporate disputes to a separate group of disputes, they are subordinated specifically to arbitration courts.

This trend led, among other things, to the introduction in Art. 67 COD of Ukraine changes, limited the means of securing the claim in corporate disputes and prevented a number of typical abuse of procedural rights, as well as – before the settlement in the COD of Ukraine procedural features of disputes between the economic company and its official, among other things – to fix the institution of derivative claims of participants shareholders), which they represent in the interests of the economic society.

So, it can be seen that the COD of Ukraine, as the procedural code regulating the procedure for the implementation of specialized justice, was gradually restructured to deal with such a specific category of cases as corporate disputes.

Over the years, the economic courts have accumulated vast experience in the consideration of corporate disputes, which was repeatedly summarized by the Supreme Economic Court of Ukraine regarding certain issues of corporate disputes practice and in general.

The first detailed generalization of the practice of economic courts in corporate disputes was the Recommendations of the Supreme Economic Court of Ukraine of December 28, 2007 No. 04-5 / 14 “On the practice of applying legislation in the examination of cases arising from corporate relations.”

At the moment, the Resolution of the Plenum of the Supreme Economic Court of Ukraine No. 4 “On Certain Issues of Practice for the Settlement of Disputes Arising from Corporate Legal Relations”, adopted on February 25, 2016, is in force.

Both of these documents are detailed and well-structured guides to corporate disputes, however, comparing them, we can not fail to note the significant progress demonstrated by the Resolution of the Plenum of February 25, 2016 No. 4.

Resolution of the Plenum of 25 February 2016 No. 4 can be criticized for individual reasons, in particular

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