Legal Aspects of International Business for Non-Lawyers: 2015

2) What is a “worldwide freezing order”? What is a “disclosure order”? What exactly did the court order the defendant to disclose? Did the defendant comply?

3) What was the result of the non-compliance with the disclosure order?

4) What is “contempt of court”? Why did the court found the defendant in contempt? What was the result?

5) Did the court evaluate evidence relating to the principal claim (some $5 bln)? Why or why not?

6) What was the outcome of the principal case?

7) Why do the parties continue to struggle over the professional privilege issue? Why is it important?

8) What issue did the Supreme Court agree to review? Why is it important?

Re Kekhman (UK, 2014)

Essential reading:

Bankruptcy "tourism": Russian banks fail to annul English bankruptcy of Russian businessman

http://www.fieldfisher.com/publications/2014/07/bankruptcy-tourism-russian-banks-fail-to-annul-english-bankruptcy-of-russian-businessman#sthash.vNN5W4mZ.dpuf

Accessibility of English bankruptcy to foreign debtors—JSC Bank of Moscow v Kekhman

http://blogs.lexisnexis.co.uk/randi/accessibility-of-english-bankruptcy-to-foreign-debtors/

Additional reading:

Банкрут, или Дома хорошо, а в гостях лучше [see links inside]

http://zakon.ru/blog/2015/2/13/nadpisi_na_russkom_yazyke_bankrut_ili_doma_xorosho_a_v_gostyax_luchshe

Technical reading:

Judgment

http://zakon.ru/blog/2015/2/13/nadpisi_na_russkom_yazyke_bankrut_ili_doma_xorosho_a_v_gostyax_luchshe

Issues for discussion:

1) What court considered the case? Who were the parties? What was the principal issue?

2) Did the English court have jurisdiction over the bankruptcy case under English law?

3) The applicants argued that the court had to exercise its discretion to dismiss the bankruptcy case. What was their arguments in favor of that proposition? Do you think they were right?

4) One of the issues was whether or not the English judgment in the bankruptcy case may be recognized in Russia. Why is it important?

5) Generally, how an English court resolves issues of foreign law? Who were the expert witnesses in this case?

6) The judge changed his mind on the issue of whether or not the judgment may be recognized in Russia. Did it affect the ultimate outcome of the case?

7) What was the outcome? What are its probable practical consequences? may it be recognized in Russia? In other countries?

YUKOS Shareholders v Russia (The Hague, 2009-2014)

Essential reading:

Court orders Russia to pay $50 billion for seizing Yukos assets

http://www.reuters.com/article/2014/07/28/us-russia-yukos-idUSKBN0FW0TP20140728

Hague Court; Russia Did Steal Yukos And Must Pay $50 Billion Damages

http://www.forbes.com/sites/timworstall/2014/07/28/hague-court-russia-did-steal-yukos-and-must-pay-50-billion-damages/

Additional reading:

Yukos v. Russia: Issues and legal reasoning behind US$50 billion awards

https://www.iisd.org/itn/2014/09/04/yukos-v-russia-issues-and-legal-reasoning-behind-us50-billion-awards/

Technical reading:

Final Awards Issued in 3 Arbitrations Between Former Shareholders of Yukos and the Russian Federation

http://www.pca-cpa.org/shownews.asp?nws_id=440&pag_id=1261&ac=view

Documents

http://www.pca-cpa.org/showpage.asp?pag_id=1599

Issues for discussion:

1) What were the grounds for arbitration tribunal’s jurisdiction?

2) Do you think Russia must comply with a treaty its parliament has not ratified? Why or why not?

3) Yukos went bankrupt because of tax claims. Do you think this amounted to an “expropriation” in terms of the treaty (ECT)?

4) Did Yukos abuse Russian tax law, according to the tribunal? How did the abuse, if any, affected the award?

5) What was the amount of the award? How it was calculated?

Monday, June 1, 2015

Slides: 6

Presentation #6 (International Taxation):
https://yadi.sk/i/DP3FrB9VgzT9H

Moncrief Oil International, Inc. v. OAO Gazprom

No. 017-229664-08, District Court, Tarrant County, Texas (Fort Worth).

Essential reading:

Perry Mason Moment Halts Moncrief $1.37 Billion Gazprom Suit

http://www.bloomberg.com/news/articles/2015-02-02/moncrief-drops-1-37-billion-gazprom-suit-after-sanction-request

Texas Firm's $1.4 Billion Suit Against Gazprom Collapses On Faked Evidence

http://www.forbes.com/sites/danielfisher/2015/02/02/texas-firms-1-4-billion-suit-against-gazprom-collapses-on-faked-evidence/

Additional reading:

Russian Gas Co. Must Face Trade Secrets Suit: Texas Court [2013]

http://www.law360.com/articles/469088/russian-gas-co-must-face-trade-secrets-suit-texas-court

Moncrief Pulls Plug Midway Through $1.36B Gazprom Trial [2015]

http://www.law360.com/articles/617276/moncrief-pulls-plug-midway-through-1-36b-gazprom-trial

Technical reading:

Defendants Second Motion for Sanctions

http://amlawdaily.typepad.com/gazpromsanctions.pdf

Issues to discuss:

1) What was the origin of the conflict between Moncrief and Gazprom? What was the controversy in this particular case? Was it a contract case or a tort case? What country’s law governed the relevant relations of the parties?

2) Why did the Texas court accept jurisdiction over the dispute? What was the opinion of the Texas Supreme Court on that?

3) What kind of trade secrets did Moncrief allege to have been stolen? What evidence did Moncrief have on the existence of the trade secrets?

4) What made Gazprom’s attorneys think the evidence was faked? What was their evidence of the forgery?

5) Is it common practice in US courts to introduce new evidence during cross examination of a witness before a jury? Why did Moncrief’s attorneys object to that? Why did the judge overrule the objection?

6) What did Gazprom’s attorneys ask for? Explain the meaning of the defendants’ motion for sanctions’ third section title (page 11: “Moncrief’s deception warrants death penalty sanctions”).

7) What was the outcome of the case? Did the jury return a verdict? If not, why? Who has resolved the dispute and how?

Monday, May 25, 2015

Slides: 5

Presentation #5 (International Litigation and Arbitration):
https://yadi.sk/i/PkUP04ClgrkFk

Tuesday, May 19, 2015

Slides: 3 & 4

Presentation #3 (Intellectual Property & Licensing):

https://yadi.sk/i/sPy8Qm-NgjAnp

Presentation #4 (Investment Law):

https://yadi.sk/i/IEEG98GwgjAyf

Essay

The mid-term essay is supposed to be a case study.

It is to be devoted to an actual international business case: you should analyze legal aspects of the case and draw practical conclusions.

The plan of the essay is approximately as follows (this is also an approximate plan for reporting a case):

(1) introduction (what it is about and why it is important),

(2) facts,

(3) applicable legal rules,

(4) application of the rules to the facts,

(5) discussion (including your personal opinions on the relevant issues),

(6) practical conclusions.

The essay should have about 2,000-3,000 words.

For those who have reported cases in class, I suggest to use the case he or she has reported as the essay topic. Those who have not reported cases yet, may either find a case to his or her taste, or use any of the cases I have mentioned during lectures, or else ask me for further cases.

If you do not like the case-study idea, you may suggest your own topic for the essay. Write me and we will discuss it.

VTB V. NUTRITEK (2011-2013)

Essential reading:

VTB Capital plc v Nutritek International Corp

http://en.wikipedia.org/wiki/VTB_Capital_plc_v_Nutritek_International_Corp

Piercing the corporate veil: An update in light of VTB v. Nutritek [Court of Appeal]

http://www.nortonrosefulbright.com/knowledge/publications/68488/piercing-the-corporate-veil-an-update-in-light-of-vtb-v-nutritek

VTB v. Nutritek: Supreme Court confirms corporate veil cannot be pierced to make a puppeteer party to his puppet’s contract

http://www.lexology.com/library/detail.aspx?g=cb0148bb-db26-4f3c-a7ab-7b2fb3790f42

Additional reading:

Case Comment: VTB Capital Plc v Nutritek International Corp & Ors [2013] UKSC 5

http://ukscblog.com/case-comment-vtb-capital-plc-v-nutritek-international-corp-ors-2013-uksc-5/

Technical reading:

Court of Appeal: VTB Capital Plc v Nutritek International Corp & Ors [2012] EWCA Civ 808 (20 June 2012)

http://www.bailii.org/ew/cases/EWCA/Civ/2012/808.html

Supreme Court: VTB Capital Plc v Nutritek International Corp & Ors (Rev 1) [2013] UKSC 5 (6 February 2013)

http://www.bailii.org/uk/cases/UKSC/2013/5.html

Issues for discussion:

1) What courts considered the disputes? Who were the parties? What were the essential facts?

2) Did the bank have a contract with the defendant? Was the claim grounded on contract or tort law?

3) Did Russian or English law govern the alleged tortuous conduct? What were the opinions of the courts of different instances on that?

4) Did English courts have jurisdiction to resolve the case? Was the English court “appropriate forum” for that? Why or why not? What were parties’ opinions on that issue? What was the decision of the Supreme Court?

5) What is meant by “piercing the corporate veil”? What should be proved to “pierce the veil”? The veil of which company did the claimant want to pierce? Who the claimant thought was behind the veil?

6) Do you think a “puppeteer” should be responsible for contracts of his “puppet”? What has the Supreme Court decided?

7) Do you think the outcome of the case was fair?

8) Does the claimant have any remedy now, after English courts have refused to hear its claim?

RUSSIAN CUSTOMS V. BANK OF NEW YORK (2007-2009)

Sources:

Essential reading:

Russia Sues Bank of New York Over 1990s Scandal

http://www.wsj.com/articles/SB117941480401306281;

Bank of New York Settles a Protracted Russian Lawsuit

http://www.nytimes.com/2009/09/17/business/global/17bony.html?_r=0.

Additional reading:

RUSSIAN CUSTOMS V. BANK OF NEW YORK: IS RICO APPLICABLE IN RUSSIA?

http://www.americanbar.org/content/dam/aba/multimedia/international_law/docs/committees/russia_eurasia/russiaeurasianewslettersummer2008.authcheckdam.pdf (p.p. 11-15).

Technical reading:

Legal Expert Witness Statement of Alan M. Dershowitz

http://www.nysun.com/files/dershowitzmoscow.pdf;

Non-Prosecution Agreement between the Bank of New York and the U.S. Attorney's Offices for the Eastern and Southern Districts of New York (Nov. 4, 2005)

http://judiciary.house.gov/Media/PDFs/BNY-USAO051104.pdf;

Congressional Testimony of Thomas A. Renyi, Chairman of the Board of the Bank of New York, Sep. 22, 1999

http://www.russianlaw.org/renyi_congress.htm.

Issues for discussion:

1) What court considered the dispute? Who were the parties? Was it a civil-law or a public-law case? What were the essential facts?

2) Did the Russian court have jurisdiction to resolve the case? Why or why not?

3) What statute was the claim grounded on? Was it a Russian or a US law? Was it a criminal statute, a civil-law statute, or a mixed one? Why a Russian court had to apply a

statute?

4) What evidence did the plaintiff have? How did it obtain that evidence?

5) How much did he plaintiff ask? How did it arrive to that figure?

6) What were the issues to be resolved? What were parties’ cases and arguments?

7) Who were parties’ experts? What issues did they opine on?

8) Do you think the Russian court was in a good position to resolve factual issues in relation to the events occurred in the US?

9) Do you think the Russian court was sophisticated enough to apply a highly technical

statute?

10) If the plaintiff had won the case, would it have been able to get the money from the defendant? If so, how?

11) What was the ultimate outcome of the case?

Thursday, April 23, 2015

Stolychnaya Case: Strasbourg – New York – The Hague

Essential Reading:

1) ECHR (2007)

European Court Dismisses Claim over Stolichnaya Dispute (2007)

http://www.kommersant.com/p772702/r_500/European_Court_Stolichnaya/

2) US (2005-2015)

STOLICHNAYA Case Still Alive, Just Barely (2014)

http://propertyintangible.com/2014/09/stolichnaya-case-still-alive-just-barely.html

Netherlands

(2003-2015)

Stolichnaya Belongs to Russia, Dutch Court Tells Vodka Tycoon (2015)

http://www.bloomberg.com/news/articles/2015-03-25/stolichnaya-belongs-to-russia-dutch-court-tells-vodka-tycoon

Additional reading:

1) ECHR (2007)

"Not your vodka", ECHR tells Russian business (2007)

http://ipkitten.blogspot.co.uk/2007/06/not-your-vodka-echr-tells-russian.html

2) US (2005-2015)

Fed. Treasury Enter. Sojuzplodoimport v. Spirits Int’l N.V. (2010)

http://www.finnegan.com/files/upload/Incontestable_Oct10_2.html

Netherlands

(2003-2015)

Important Victory for Russian State Company FKP SOYUZPLODOIMPORT and Its TM Rights on World Renowned Vodka Brand STOLICHNAYA (2015)

http://www.hoyngmonegier.com/fr/article/20150330/hoyng-monegier-has-achieved-important-victory-rotterdam-district-court-dispute-conc

Dutch Supreme Court Confirms the Rights in the Famous Vodka Brands “STOLICHNAYA” and “MOSKOVSKAYA” Belong to the

Russian Federation

(2013)

http://www.hoyngmonegier.com/article/20131220/dutch-supreme-court-confirms-rights-famous-vodka-brands-%E2%80%9Cstolichnaya%E2%80%9D-and-%E2%80%9Cmoskovsk

Technical reading:

ECHR 2007 Judgment

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-80956

US 2010 Judgment

http://ru.scribd.com/doc/39058689/Federal-Treasury-Enter-v-Spirits-Int-l

Dutch Supreme Court 2013 Judgment (Summary)

http://www.inta.org/TMR/Documents/Volume%20104/vol104_no2_a1.pdf

(see pages 580-581)

Issues for discussion:

1) Who was the original owner of the STOLYCHNAYA trademark? How did it end up in the hands of a private person in most copuntries other than Russia? What are grounds on which Russia claims the mark back?

2) Why are the issues of the trademark ownership decided separately in different jurisdictions? Should they? Perhaps Russian courts’ rulings should be decisive for all countries?

3) What does the human rights court (ECHR) have to do with trademarks? Is the trademark case its business at all?

4) What were the arguments of the parties in the ECHR? What was the Court’s judgment? What was its reasoning?

5) Did the ECHR resolve the trademark ownership issue on the merits?

6) What were central issues of the US litigation? What is “incontestability”? What is the difference between the invalidation of a trademark and the invalidation of its assignment?

7) Which grounds of Russia’s claims were dismissed by US courts? Which ones are still alive? What do you think the probable ultimate outcome is?

8) What were central issues of the Dutch litigation? What was the essence of the “tolerance vs. bad faith” argument in the Supreme Court? Why did the case go back to a first instance court?

9) What was the outcome in the first instance court? What was the court’s reasoning? Do you think the judgment is likely to be final?
10) What do you think would be the fair outcome of the dispute? Why?

Monday, April 13, 2015

Slides - Lecture 2

The second lecture slides (Trade and Trade Finance):
https://yadi.sk/d/0TwRkXdnfwkqF

Soyuzmultfilm Case: Films by Jove v. Berov (a US district court)

Essential reading:

The Battle for Cheburashka: Films by Jove, Inc. v. Berov and Copyright in Soviet Animated Films

https://yadi.sk/i/dDQrH3tNfwcDY

Read pages 343-350, 355-358, 362-364.

Additional reading:

The Battle for Cheburashka…

Read the rest of the article.

Technical reading:

Films by Jove, Inc. v. Berov, 154 F.Supp.2d 432 (E.D.N.Y. 2001).

http://law.justia.com/cases/federal/district-courts/FSupp2/154/432/2429458/

Films by Jove, Inc. v. Berov, 250 F.Supp.2d 156 (E.D.N.Y. 2003).

https://www.courtlistener.com/opinion/2381043/films-by-jove-inc-v-berov/

Films by Jove, Inc. v. Berov, 341 F.Supp.2d 199 (E.D.N.Y. 2004).

http://www.leagle.com/decision/2004540341FSupp2d199_1523

Issues for discussion:

1) What court resolved the dispute? Who were the parties? What was the subject matter of the dispute?

2) Why did two different Soyuzmultfilms take part in the proceedings? How did they happen to find themselves adverse parties?

3) Which country’s law did the US court apply to decide who the copyright owner was? How did the court determine the meaning of unclear provisions of Russian law?

4) Which of the two Soyuzmultfilms was recognized by the US court as the copyright owner? Why?

5) What was the opinion of the Russian Supreme Arbitrazh Court on the matter? Why did the US court refuse to follow Russian Supreme Arbitrazh Court’s ruling?

6) Was the US court justified in making rulings on Russian law issues contrary to Russian highest court’s opinions? Is it US court’s business at all? Why or why not?

7) What was the outcome of the case? Was it fair as to the US licensee? To the alleged copyright infringer? To the Russian state? To the creator of the animated films? Why?

8) What happened after the judgment? Who currently is the owner of copyrights in old Soviet animated films?

Thursday, April 9, 2015

ECHR: Yukos v Russia

Essential reading:

Wikpedia. Yukos shareholders vs. Russia: Claim in the European Court of Human Rights (EHCR)

http://en.wikipedia.org/wiki/Yukos_shareholders_vs._Russia#Claim_in_the_European_Court_of_Human_Rights_.28EHCR.29

Russia violated rights of Yukos oil company, rules European court

http://www.theguardian.com/world/2011/sep/20/russia-violated-yukos-rights-court

Reuters. European court rules Russia must pay Yukos shareholders 1.9 billion euros

http://uk.reuters.com/article/2014/07/31/uk-russia-yukos-echr-idUKKBN0G00QO20140731

Additional reading:

Analysis of the ECHR judgment in the YUKOS case

http://echrrussia.blogspot.co.uk/2011/09/analysis-of-echr-judgment-in-yukos-case.html

Technical reading:

ECHR. OAO Neftyanaya Kompaniya Yukos v. Russia (Application no. 14902/04).

Judgment (Merits). 20 September 2011.

See, in particular: Partly Dissenting Opinion of Judge Bushev, Joined In Part by Judge Hajiyev

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"appno":["14902/04"],"itemid":["001-106308"]}

Judgment (Just satisfaction). 31 July 2014.

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"appno":["14902/04"],"itemid":["001-145730"]}

Issues for discussion:

May a convention on human rights be applicable to a commercial company?
May a company that has already been liquidated be a party to legal proceedings?
What violations of the Convention by Russia were alleged by Yukos?
What violations were found by the Court?
What is the essence of the “expired statute of limitation” argument (by Yukos)? What were counter-arguments of Russia? What has the court decided? Was the decision unanimous?
How much did Yukos ask and how much was awarded to it?
What are the likely consequences if Russia does not comply with the Court decision?
Do you think the outcome is fair? Why or why not?
Do you think Russia must pay the award? Why or why not?

Golan v. Holder: Protection of “Old” Works under the Berne Convention and the WTO Agreements

Essential reading:

Wikipedia: Golan v. Holder

http://en.wikipedia.org/wiki/Golan_v._Holder

Supreme Court: Golan v. Holder (read the syllabus)

http://www.supremecourt.gov/opinions/11pdf/10-545.pdf

Critical comment: Supreme Court Gets It Wrong in Golan v. Holder, Public Domain Mourns

https://www.eff.org/deeplinks/2012/01/supreme-court-gets-it-wrong-golan-v-holder-public-domain-mourns

Additional reading:

Brief for Golan (read pages 14-18):

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/Golan-Merits-Brief-FILED.pdf

Brief for the US (read pages 10-13):

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/Golan-response-for-the-US.pdf

Technical reading (optional):

Berne Convention: Article 18

http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P205_40480

TRIPS Agreement: Article 9

https://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm#1

Uruguay

Round Agreements Act: Section 514

http://en.wikisource.org/wiki/Uruguay_Round_Agreements_Act/Title_V#SEC._514._RESTORED_WORKS.

Issues for discussion:

What does the Berne Convention say about the protection of foreign works created before a country joined the convention?
The US joined the Berne Convention in 1989. Why did old foreign works remained to be unprotected? Why the rule was changed in 1994?
Why US musicians were unhappy with the new rule?
What were the major arguments of the musicians in court?
What were the major arguments of their opponents (the government)?
Do you think the copyright law restricts free speech?
What was the decision of the US Supreme Court? What was its reasoning?
What do you think was more beneficial for the US: to be smart and find a way to circumvent the requirements of the international treaty unpleasant for US musicians, or to be honest and comply with international obligations in good faith? Why?

Welcome Message

Dear Students,

This is a blog of the Legal Aspects of International Business for Non-Lawyers class (Spring 2015) at the Faculty of World Economy and International Affairs, the Higher School of Economics, Moscow.

To see the program of the course, follow the link:
https://yadi.sk/i/NKbujLkLfshMq

The first lecture slides (International Business and International Law):
https://yadi.sk/i/PlYE3tEZfshfV

I will post assignments, reading materials, and presentations here.

You may post your comments here or write to me directly.

Sergey Budylin