Suchergebnisse

Ensuring the protection of rights of parties in corporate relations under the conditions of obligatory consolidation of corporate control requires the definition of a fair price of a small block of shares in a joint-stock company that is subject to compulsory disposal in favor of a beneficiary. There is no doubt that observance of the balance of interests of parties in corporate legal relations in this area is achieved by the conflict free mechanism of its pricing. As of today, the appropriate procedure has not been provided. The position of the Grand Chamber of the Supreme Court regarding the outlined range of issues clearly indicates the need for systemic changes in the mechanism of obligatory consolidation of corporate control. It is obvious that its introduction into legal framework requires more effective compensatory levers to ensure the rights of a weaker party, which, in our opinion, are the cessation of ownership of shares as a result of alienation or acquisition of such right under the claim of a person concerned by virtue of a court decision. Under action proceedings, a court assesses the criterion of justice in determining the value of a company`s shares being disposed and verifies the grounds for creation of rights of action and their regulatory reasonableness. Fair price determines the fair value of a share considering the economic indicators of the company, which determine the prospect of its development. In this case, the company is subject to an assessment as an entity, but not as a set of assets or the binding demand for payment of dividends. It should be noted that the regulatory requirement for fixed price may not correspond to the fair balance criterion. On the model of Japan and Hong Kong, the price of acquirement shall have an exceptionally low threshold value of the relevant price. Currently, it is widely recognized that the market price cannot serve as a benchmark to achieve fair value, since it may be discounted relative to the cost of a liability. When deciding on fair compensation alternative methods of evaluation should be considered, such as discounting cash flows (technique used to calculate the current (present) cost of expected revenues and expenses , comparison of multiples and quotation of shares in the securities market, analog assessment method, etc. Incidentally, the positive experience of judicial control of the pricing procedures is enshrined in the law of Germany ( Articles 327b, 327C of the Germany Law On Joint Stock Companies ). In the UK, the form of judicial control over the procedure for compulsory acquisition of ownership of shares is the court discretion to independently determine the terms on which the offeror is entitled and obliged to purchase shares (Article 988 of the Law on Companies of 2006) , including in the case of establishing their unfair value. Corporate legislation of Hong Kong provides compensatory mechanism against potential abuse by the holder of the dominant block of shares in a joint stock company, which includes the competence of a court, under the request of a minority shareholder, to decide on the absence of right of compulsory redemption of shares of minority shareholders, establishment of a fair price of acquisition, and has a discretion to independently exercise any powers if, at the request of the shareholder, it believes that the company's affairs are or was conducted in a manner unfairly harming the interests of shareholders. In this case, the court may adopt any order which, in its opinion, is necessary and issue an order to restrict the company`s business or an order to perform actions, an order to appoint a recipient or manager of the company's property or its part. Herewith, the court may even specify the powers and responsibilities of the recipient or manager and determine the remuneration.

Professional sports, from the standpoint of sociology, is a type of subculture. This is a system of relations based on the factor of social self-regulation. In view of the above, social relations in the field of sports are also characterized by the autonomy of their legal regulation. Such social ecosystem forms an autonomous legal order, which is in a degree of relative dependence on state regulation, while remaining an integral segment of the legal system of society as a whole. The sports order is formed among other factors by a huge network of various institutions, organizations and regulators, cooperation and participation of public and private entities at different levels, and has its own judicial system, which is based on the International Court of Arbitration for Sport in Lausanne. It is the autonomy of the sports legal order that presupposes the existence of a system of jurisdictional bodies whose activities are aimed at considering disputes in the relevant sphere of relations. At the same time, despite the integrity of the system of sports law and order in relation to public law and order, the internal organizational unity, in particular, of the process of resolving disputes in sports relations is unbalanced. The above indicates the need for clearer legal regulation of activities in the field of professional sports, in particular in terms of issues raised. At the level of national legislation of Ukraine, it is necessary to define statutorily self-regulatory organizations, to give the appropriate status to national federations and consolidate the structure of participants in relations in the field of professional sports around them. This will resolve the issue of local regulation of relations in the field of professional sports, including in the disciplinary field, as well as unify the general rules of dispute resolution in the bodies of alternative (arbitration) jurisdiction, appeals against their decisions.

We are pleased to present you with this book which is the effect of the international cooperation between the Research Group of the Commercial Law acting at the Faculty of Law and Administration of the University of Silesia and representatives of foreign university departments of private law from Austria, the Czech Republic, Slovakia and Ukraine. The "Evolution of Private Law – New Challenges" continues the collective publications issued in 2014, 2015 and 2017. Private law is not a subject that currently suffers from a scarcity of interesting and great scientific publications, but our first thought was to create some space for authors from different European countries to present new visions and development paths for that area of law. This year's edition is dedicated to the new challenges facing national legislators regarding the adjustment of their legal systems to some international regulations on private law. A broad range of authors – academics from the above mentioned countries – substantially contribute to strengthen and widen the comparative law research. This publication is dedicated primarily to civil law academics, but it also addresses the issues relevant to the legal practice. Most of the articles can be useful in the didactic process at law studies as well.

1. In the process of interaction between the governing bodies and a legal entity, there are situations when the participants of such interaction pursue differently vectored or mutually exclusive goals due to the polar drive to pursue their own corporate interests. Given the above, the problem of legal liability of a legal entity`s officials in making decisions needs to be reconsidered. Therefore, the relevance of theoretical developments regarding the liability of a corporate governance body and its officials for actions harming the interests of a legal entity is beyond doubt. Herewith, this issue concerns not only the material law, but also the procedural aspects of resolving such type of corporate conflict. 2. The Law of Ukraine On Joint Stock Companies (Article 63) establishes the liability of a joint stock company`s officials for damages caused to the company by their actions (omission). In 2015, the Law of Ukraine On Amendments to Certain Legislative Acts of Ukraine Concerning the Protection 93 of Investors' Rights amended the Article 89 of the Commercial Code of Ukraine by establishing the liability of officials for damage caused by acts committed with abuse or malpractice in office, acts committed in violation of the order of their prior approval or other decision-making procedure, etc. Specifically in the banking sector, the civil liability of a corporate governance body officials was introduced by the Law of Ukraine On Amendments to the Law of Ukraine On Banks and Banking Activity to determine the features of corporate governance in banks, which strengthened the liability of bank-related persons, first of all the heads of banks (Article 42), when making decisions affecting the bank`s financial state. 3. The matter under inquiry establishes the general terms of legal liability of corporate governance officials. As of today, it is doctrinally defined and statutory enshrined in the legislation of Ukraine that such conditions are the unity of subjective and objective elements of the tort. However, persons acting on behalf of a legal entity are obliged to act not only within their powers, but also in reasonable good faith. In the course of business, a company and its official (particularly, the director or general director) have fiduciary relationships, for which reason the wrongful conduct of such person may be expressed not only in failure to fulfill obligations directly established by the constituent documents of the company, or exceeding the authority to perform certain actions on behalf of the company, but also in the improper or unfair performance of such actions without complying with the limits of standard economic risk, and making obviously hasty or wasteful decisions. Therefore, an important feature of the activities of a legal entity`s corporate governance officials is the awareness of the risks of their activities and their management. Therefore, the issue of liability should not be conditioned by the presence of subjective elements in the tort. 4. In the countries of Anglo-American legal system, the corresponding viewpoint was stated in the case of Caparo Industries PLC v Dickman (1990). The House of Lords, following the Court of Appeal, put forward a "3- fold test": A set of the following conditions is considered a breach of the due diligence obligation: 1) occurrence of damage is the result of reasonably foreseeable conduct of an official, 2) parties to the conflict are in a fiduciary relationship, and 3) All other things being equal, the reimbursement is fair and reasonable. According to the above, the basis to release an official from the liability is a causa, i.e. a circumstance that the person has not been able to foresee by the appropriate measures of his/her professional diligence required of him/her under specific conditions. 5. Regarding the procedural aspects of appealing to the court, it should be noted that such right is granted to a legal entity, as well as others, which are legally entitled to appeal to the court in the interests of the legal entity in disputes over indemnification of damages caused by its official. The owner (member, shareholder) of a legal entity holding 10 percent or more of the authorized capital of the company, or which share in the legal entity`s property is 10 percent or more, may, in the interests of such legal entity, file a claim for indemnification of damages caused to the legal entity by its official. National legislation does not provide for a procedural combination of consolidation of interest of several minority shareholders, members who collectively own the limit of 10 percent or more of the authorized capital of the company, which limit is established by part 1 of Article 54 of the Commercial Procedural Code of Ukraine. The above creates a procedural imbalance in the rights of shareholders (members) and actually blocks the functionality of the institution of liability of a corporate governance body officials. The above puts on the agenda the systematic introduction of procedural and legal mechanisms for consideration of class actions in the civil proceedings of Ukraine. Mass tort is a component of the legal instruments which introduction will testify to the development of the national legal system as a whole, and its use will allow to resolve the issue of access to justice. 6. Peculiarity of the American model of mass tort is that the Federal Rules of Civil Procedure established by the US Supreme Court do not limit the scope of this institution to a particular area of law and do not determine the subject matter of a dispute for resolution of which it is possible to apply to the court. Class actions are possible on any claims, which in general may be reviewed by a court of general jurisdiction in accordance with the rules of civil procedural law

Property exists in the following forms: - private property - property of individual civil law entities (individual, legal entity). - public property - property of the people of Ukraine presented as an independent form due to the specific legal regime of its use. Specific legal regime of public property: - Property state (is the impersonal property of citizens of Ukraine (subsoil); - Procedure for acquiring property rights (permitting and competitive); - Settlement entity having a dual (private and public) legal nature (state of Ukraine, local government). Types of property - private property Individual is the ownership of property to an individual or entity. One entity is the plurality or singularity of objects. Joint is the ownership of property jointly to several individuals or entities. Plural entities are the plurality or singularity of objects. Such item belongs simultaneously to individuals or entities entitling them to jointly exercise the powers of the property owner. It is not the thing itself that is divided between the co-owners, but the ownership over it.