USE OF PROTECTIVE MEASURES IN CORPORATE DISPUTES

The actions of individuals to create and manage a corporation are associated with the formation of a whole complex of diverse relationships, which can lead to disputes and conflicts between their participants. One of the important elements in the consideration of corporate disputes is the use of interim measures. The institution of a claim securing is intended to provide a guarantee of a real possibility to execute a judicial act, to ensure the observance and protection of the rights of participants in legal entities, as well as property interests and business reputation of the corporation. When assessing the arguments of the applicant seeking interim measures, the court shall impose that these measures are proportionate with the stated requirements; related to the subject of the dispute; are aimed at maintaining the existing state of relations (status quo) between the parties; their adoption will not entail the impossibility of the defendant to carry out his actual activities. The grounds on which the security application can be satisfied are determined by the court in each case, taking into account all the circumstances of the case. Meanwhile, an analysis of the practice of applying the institution of interim measures allows us to conclude that it is virtually impossible for applicants to use this instrument due to the frequent refusals of arbitration courts to satisfy this requirement. The reason for this as a rule is the caution of arbitration courts with respect to the consequences of unreasonable interim measures (for example, suspension of activities or difficulties in the implementation of the corporation’s activities). The courts also refer to the lack of sufficient evidence of the reasonableness of the applicant’s fear of the future difficulty or impossibility of executing the court’s decision. The author concludes that there is a need to change the current procedural legislation in terms of securing an open list of exemplary reasons for the adoption of interim measures, which would entail the definition of objective criteria for the assessment of the evidence they need.

interim measures, securing a claim, corporate dispute, protection of corporation interests, arbitration process, judicial discretion, refusal to apply interim measures, assessment of evidence, effectiveness of justice, application of interim measures, protection of the applicant’s interests.

Korobeinikova T. S. Use of protective measures in corporate disputes. Business. Education. Law, 2020, no. 4, pp. 266–270. DOI: 10.25683/VOLBI.2020.53.444.