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SPBILF 2019 Discussion Sessions
A column providing details of themes which will become the key topics to discuss at the Forum.
Discussion Session 'Trans-Border E-Document Exchange: Drivers and Challenges'
One of the numerous aspects of business life highlighted by the pandemic was entering into legally binding transactions and exchanging legal documents remotely in electronic form. Until recently, the task was not straightforward even within one jurisdiction and was even more difficult when it comes to concluding cross-border transactions. By the beginning of the pandemic, certain legislation recognizing the electronic form of documents, electronic signatures, etc. was already adopted in most jurisdictions globally. Due to the efforts of international institutions, this legislation often sets forth relatively similar regulations which allows the global market participants to introduce certain electronic document exchange systems that satisfy their needs in some areas, such as internal corporate document exchange, retail transactions or commercial procurement contracts. These usually are situations where it is unlikely that the action or transaction is not legally recognized, when its legal defects can be easily remedied, or when the 'price' of such flaws is not high. However, it turned out that the existing national regulation does not always provide secure ways to switch into the paper-less form for large and complex cross-border transactions requiring a high level of legal certainty and reliability. The parties to such transactions who tried to switch from the wet-ink paper form and personal presence under the pressure of sanitary and epidemiological restrictions faced numerous questions:
- How to ensure that the person who signed the document 'on the other end of the line' has actually duly executed it? Who and under what rules should identify this person?
- What is the legal effect of the electronic signature used by the counterparty? How can the electronic signature be verified?
- Is it possible to submit electronic documents signed by counterparties from different to state registers or notaries of the jurisdiction where such state registration, notarization or other legalization is required for legal perfection?
- And finally, will a party be able to enforce the terms of a transaction entered into in electronic form in the jurisdiction where such enforcement is necessary?
The current regulation of these issues at the national level is very fragmented and not harmonized, and, with the exception of rare cases of regional integration (such as eIDAS), cross-border recognition of electronic documents and signatures does not work in practice. Our experts will discuss these problems and will aim to articulate possible solutions to these problems to help the global business.
Discussion Session 'Mitigation of Personal Responsibility of Executives. Is There a Future for D&O Insurance in Russia?'
Directors and officers liability insurance (D&O liability insurance) is an important tool for protecting the interests of companies and their shareholders, as well as for stimulating business activity through the distribution of business risks by insuring and re-insuring them.
In the context of increasing application of norms on responsibility of directors and officers (Article 53.1 of the Civil Code of the Russian Federation, subsidiary responsibility in bankruptcy, etc.), it is most relevant to discuss the question of complexities and further ways of development of D&O liability institution in Russian law.
Regulation in this area is based on the provisions of Chapter 48 of the Civil Code, which has not undergone any conceptual changes since the adoption of Part II of the Civil Code in 1995 and contains a number of restrictive imperative norms, including the division of property insurance into the following types:
- liability insurance for the infliction of harm (possible only in favour of persons who may be harmed, according to para. 3, Article 931 of the Civil Code of the RF);
- insurance of contractual liability (possible only in cases expressly specified in the law, according to para. 1, Article 932 of the Civil Code of the RF; only insurance of the liability risk of the insurant himself is admissible, according to para. 2, Article 932 of the Civil Code of the RF).
Points for discussion:
- Court practice approaches to the application of these imperative norms.
- Issues of the legal nature of D&O liability and the possibility of covering specific types of risks with D&O liability insurance. What is to be considered as an unlawful interest, the insurance of which is inadmissible? Are there possible exceptions to this principle?
- Admissibility of subsidiary liability insurance in bankruptcy and liability for commission of offense (e.g., administrative and tax offence).
It is planned to have a separate discussion on the issues of reinsurance, including through foreign insurance companies.