Sergey Petrachkov

Various types of management responsibility are not myths any longer, they have become a reality. We are glad to introduce our new guide devoted to current trends analysis – “The (non-)Myths of Management and Beneficiaries Responsibility”. We have prepared practical answers to the most frequently asked questions: “what one can be held liable for” and “what shall be done to avoid it”. We hope you find the material useful.

On August 25, 2021, international ranking agency IFLR1000 published the results of EMEA rankings that represent IFLR1000's 31st 2021/22 edition. The rating evaluates law firms in different areas. ALRUD law firm is again top ranked for M&A, Banking, Restructuring and Insolvency, Project Finance, PPP, Capital Markets: Debt and Equity, Project development: Mining and Energy. Individual nominations in IFLR1000: Alexander Zharskiy, Partner and Head of the Corporate and M&A Practice, and Anton Dzhuplin, Partner of the Corporate and M&A, Banking and Finance practices are “Highly regarded” in the rating. Sergey Petrachkov, Partner and Head of the Dispute Resolution and Restructuring/Insolvency Practices, and Magomed Gasanov, Partner of Dispute Resolution, Restructuring and Insolvency Practices, and Head of White Collar Crime, Compliance and Investigations are nominated in the category “Rising star partner”. Artur Chernykhov, Associate of the Dispute Resolution and Restructuring and Insolvency Practices, and Ekaterina Mayorova (Rogacheva), Associate of the Banking & Finance Practice, are mentioned as “Rising star” in the rating. Congratulations to the ALRUD team! IFLR 1000 is one of the leading international legal publications. The publication's specialists annually conduct market research around the world, on the basis of which they make a rating of the best practicing lawyers and law firms.

Our firm's Partner Sergey Petrachkov, Senior Associates Dmitry Kuptsov and Ksenia Erokhina prepared the chapter about the situation in Russia for the The Legal 500 Force Majeure Country Comparative Guide. Each chapter of this guide provides information and analysis about the current issues affecting force majeure in a particular states and addresses topics such as legislation, commercial contracts, courts approaches, COVID-19 pandemic, obligations, requirements, contractual remedies, consumer contracts, insurance policy and state measures to support citizens and legal entities. Chapter about Russia of the Legal 500 Force Majeure Country Comparative Guide can be reached here.

This is to inform you that the Resolution of the Government of the Russian Federation dated October 01, 2020 No. 1587, has extended the moratorium on bankruptcy of companies, at the request of their credi-tors, until January 07, 2021. In this regard, we would like to draw your attention to the key provisions related to the moratorium regime and its extension. 1. Moratorium – the first results. It is too early to summarize the preliminary results of the first 6 months of the moratorium. Nevertheless, there is already a number of obvious difficulties in the application of moratorium regulation. First, we would like to mention the formality of the codes of Russian National Classifier of Types of Economic Activity (‘OKVED’) as the sole criterion for applying the moratorium to certain legal entities. The actual main activity of the company could be indicated among the additional activities, or not indicated at all. However, the courts take a purely formal approach and refuse to apply the moratorium, if the main OKVED code is not included in the list. In addition, despite the utmost clarity of the law setting forth the rule that applications, accepted by the court at the time the moratorium was introduced, are subject to further consideration in trial, difficulties do arise in practice. In particular, arbitrazh courts often defended the debtors, whose bankruptcy was initiated by its creditors long before the pandemic and adoption of governmental measures to mitigate its consequences. 2. Who is subject to the moratorium extension? After the moratorium extension, a number of the debtors’ categories were excluded from the list: bankruptcy immunity under the creditors’ applications will remain in force only for legal entities and individual entrepreneurs, which operate in one of the areas most affected by the pandemic, as determined by the Government of the Russian Federation. Mainly, these are the industries of retail trade and the provision of services to the population, services in the sphere of culture, leisure and sports, as well as transport activities. To check whether a company, with a certain OKVED code, is included in the list of affected industries, it is enough to type in the TIN / OGRN of the company on the website of the Federal Tax Service of Russia. Therefore, the moratorium regulation will not apply to strategic and systemically-important enterprises. At the same time, in case of initiation of a bankruptcy case for such debtors, the periods of 'depth' (prior to the bankruptcy initiation period, when the transaction is concluded), for challenging transac-tions on special bankruptcy grounds, are extended for the period of the moratorium. According to statistics from the Federal Tax Service of Russia, the moratorium will affect more than 517,000 companies and 1.6 million individual entrepreneurs. 3. What are the consequences of the moratorium extension? We wrote in detail about the consequences of the moratorium introduction in the framework here. The main consequence is the impossibility for creditors to initiate the bankruptcy procedure of the person under moratorium, as well as to enforce debt recovery from him, in any way. Meanwhile, the debtor itself, subject to the moratorium regulation, is still entitled to declare itself bankrupt. In turn, a number of restrictions apply to the companies under moratorium, in particular, the prohibition of any payments under corporate rights (including dividend payments) and the redemption, or acquisition, of outstanding shares by the debtor, as well as the conclusion of set-offs, in violation of the priority provided by the Bankruptcy Law. 4. Is it possible for the company to waive the moratorium? An entity, subject to the moratorium regulation, retains the opportunity to withdraw from the moratorium regime by publishing the relevant information on the website of the Unified Federal Register of Significant Information on Facts of Operation of Subjects of Economic Activities (‘Fedresurs’). Please kindly note that a previously-published withdrawal from moratorium regime is no longer valid, since the date of the moratorium extension. For this reason, the notice on withdrawal shall be republished. According to the Fedresurs, at the end of August 2020, there were about 750 companies notifying their withdrawal (out of 3.5 million under the moratorium regime). 5. What opportunities does the moratorium offer for companies? In addition to the obvious advantage of protection against creditors' claims, one of the main amendments of Art. 9.1 of the Bankruptcy Law is the possibility for a debtor, under the moratorium regime, to obtain a judicial installment of debts (sudebnaya rassrochka). In fact, a judicial installment plan is a prototype of a rehabilitation procedure (i.e., aimed at restoring solvency), which has common features with a settlement agreement: the debtor secures the opportunity to pay off its debts, retains property, and its management stays empowered. The key difference (and at the same time, the advantage) of the judicial installment plan, from the settlement agreement, is that its enforcement does not require the creditors’ consent, but only the court's granting of the application. 6. What is a judicial installment plan? The judicial installment plan provides, for the debtor, the opportunity to pay off its creditors according to its obligations that are due at the time the installment plan is introduced, or will “mature” within a year after its introduction, in equal monthly installments. The default installment period constitutes 1 year, but could be increased to 2 years, and for strategic enterprises - to 3 years, if the debtor's revenue has decreased by more than 50%. Still, in this case the debtor is obliged to provide security in the form of a bank guarantee, or other collateral to unsecured creditors. Based on this, we tend to consider that, in practice, it will be difficult to obtain an installment plan for more than a year. 7. How to obtain a court installment plan? A debtor, under the moratorium regime, has the right to file, within a bankruptcy case, an application on a judicial installment plan, subject to the following conditions: {{A)}} The debtor's income has fallen by more than 20%, compared to the income for the same period of the previous calendar year. Since the Bankruptcy Law does not specify what is meant by a 'similar period', in practice it is advisable to define such periods by analogy with the periods of payment of income tax. {{B)}} Initiation by the debtor of the bankruptcy proceeding during the moratorium period, provided that, prior to the introduction of the moratorium, no one filed an application for the debtor’s bankruptcy. {{C)}} The introduction of the supervision procedure (initial bankruptcy procedure) and holding of the first meeting of the debtor's creditors, at which no decision was made to approve agreement. In this regard, in practice, obtaining an installment plan is possible only after 5-6 months from the date of the introduction of the observation proceedings, against the debtor. {{D)}} The debtor must pay off debts to citizens for damage to life, or health, and for the payment of severance pay and remuneration of employees. Considering the similarity of the legal regulation of court installments and the settlement agreement in bankruptcy, we assume that the subsequent court practice will highly likely elaborate additional criteria necessary for the application of this procedure. For example, (a) the economic feasibility of the rehabilitation plan or (b) the absence of a deterioration in the creditors’ position, in comparison with the situation if the debtor was in bankruptcy proceedings. 8. What rights do creditors have during the installment plan period? Creditors, whose claims amount to more than 10% of the total amount of the register of creditors' claims, have the right of access to information about the debtor's property and obligations, as well as the right to receive a quarterly report on the execution of the court installment plan. In case of non-fulfillment of the terms of the court installment plan, creditors have the right to submit an application for the cancellation of the installment plan and the resumption of bankruptcy proceedings. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the Subscribe form at the bottom of the page. Практика: Dispute Resolution Practice, Restructuring and Insolvency Practice Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the authors of this letter bear any liability for consequences of any decisions made in reliance upon this information.

ALRUD has once again taken high positions in M&A, Banking, Capital Markets, Restructuring and Insolvency, Project Finance and Project Development (Mining, Power, PPP/PFI) in the international ranking of law firms IFLR1000 of the International Financial Law Review. ALRUD has improved its results and moved up in Restructuring and Insolvency and Project Development: Mining. Partners Alexander Zharskiy (‘Highly Regarded’ in M&A, Banking, Restructuring and Insolvency), Anton Dzhuplin (‘Highly Regarded’ in M&A, Banking, Restructuring and Insolvency, Pharmaceuticals and Life Sciences, Social Infrastructure), as well as Associate Ekaterina Mayorova (Rogacheva) (‘Rising Star’ in Banking) are recommended in the individual rankings. The IFLR1000 is the guide to the world's leading financial and corporate law firms and lawyers. The IFLR1000 has been producing legal market intelligence since 1990 and remains the only international legal directory dedicated to ranking law firms and lawyers, on the basis of financial and corporate transactional work. For more information click here.

Sergey Petrachkov and Dmitry Kuptsov, Partners of the Dispute Resolution practice, wrote an article “Delayed-action bankruptcy in Russia” for The International Bar Association. ALRUD experts explored practical consequences of the moratorium on bankruptcy introduced in Russia in April 2020 as an emergency measure aimed at protecting businesses from Covid-19 pandemic impact. Authors considered several key issues related to legal aspects of the moratorium as applied both to the debtors and the creditors. You may view the article here.

Our firm's Partner Sergey Petrachkov, Senior Associates Dmitry Kuptsov and Ksenia Erokhina prepared the chapter about Russia for the The Legal 500 Force Majeure Country Comparative Guide. Each chapter of this guide provides information about the current issues affecting force majeure in a particular country and addresses topics such as COVID-19, general principles, legislation and judicial treatment, practical issues, consumers, insurance, and future considerations. Russian chapter of the Legal 500 Force Majeure Country Comparative Guide can be reached here.

On 19 June 2020, Federal Law No. 171-FZ dated 08 June 2020 (“Law”) introducing some critical amendments aimed at protection of the Russian sanctioned entities will enter into force. The amendments were made to the Russian Arbitrazh Procedure Code, which governs litigation in state commercial courts. These might be extremely important for conducting business with Russian entities placed under foreign sanctions. Please see a brief outline of the recent changes below: 1. Key changes 1.1 Default exclusive jurisdiction of Russian arbitrazh courts In accordance with this novel legislation, as a default rule, Russian courts now have exclusive jurisdiction over the following disputes: Disputes involving entities under the sanctions of foreign states, state association and institutions (not only the USA or EU sanctions, but sanctions of any country); Disputes between Russian entities, between Russian and foreign entities, or between foreign entities, the grounds of which are the sanctions against Russian citizens or organizations. This default rule does not apply if there is (1) an international treaty or (2) prorogation agreement in favour of foreign court or arbitration agreement with seat of arbitration outside the territory of the Russian Federation between the parties. Taking into account the underlying purpose of this new piece of legislation, it appears that in fact this reservation is aimed to serve as a legitimate cover for the actual transfer of the resolution of all disputes involving Russian sanctioned entities to Russian courts. 1.2 New grounds for unenforceability of prorogation and arbitration agreements The Law stipulates that if a prorogation or an arbitration agreement is “unenforceable” due to the impact of the anti-Russian sanctions barring a Russian sanctioned person from access to justice, Russian courts will have jurisdiction over the dispute. The Law does not define “barriers to access to justice”, but due to the recent public deliberations of the Law by its authors one can assume that Russian courts may consider as such barriers any difficulties for Russian persons in paying arbitration charges or state fees, in hiring a lawyer or any other administrative or factual difficulties related to participation in proceedings. Moreover, we cannot exclude that some Russian courts will consider the mere application of sanctions provisions that prohibit granting a Russian entity’s claim by a foreign court or arbitral tribunal (so-called non-claim and non-liability clauses) as barriers to access to justice for Russian sanctioned persons. For example, recently, even before the adoption of the Law in the Instar Logistic v Nabors Drilling Innovation case (No. A40-149566/2019) Russian courts have found their jurisdiction due to the conclusion that the sole fact of sanctions imposition constitutes barriers for the Russian sanctioned company’s access to justice “since under the current US sanctions regime the Russian sanctioned company’s ability to protect its rights and economic interests is significantly limited.” Moreover, in this case Russian courts have changed the choice-of-law agreement between the parties, so that now Russian law governs the dispute instead of English law. One should also bear in mind that according to the well-known Russian Constitutional Court position compliance by Russian and foreign entities with the anti-Russian sanctions can be considered as bad faith conduct violating the public policy of the Russian Federation1. This might be the other ground for Russian courts not to apply the anti-Russian sanctions provisions, which may limit or exclude a foreign counterparty’s liability, in order to protect Russian sanctioned persons. 1.3 Anti-suit injunctions for Russian sanctioned persons The Law also introduces a brand new injunction for Russian law, namely a Russian analogy of anti-suit injunctions prohibiting commencement or continuation of foreign court or arbitration proceedings, if Russian courts have jurisdiction over the dispute. Violation of these injunctions will be punished by a penalty in favor of the other party up to the amount of the claim. Additionally, the Law also stipulates a kind of estoppel for the parties, who did not object to a foreign court’s or arbitral tribunal’s jurisdiction, providing that in such a case the mentioned party will not be able to object on this basis to the recognition and enforcement of a foreign court decision or an arbitral award in the territory of the Russian Federation. 2. Legal consequences Thus, commercial relations with Russian sanctioned persons can now be affected by the new Law in the following way: Unenforceability in the territory of the Russian Federation of a foreign court order or an arbitral award issued in contradiction with Russian court’s view on its jurisdiction over the dispute; High likelihood of declaring prorogation or arbitration agreements with Russian sanctioned persons unenforceable by Russian courts due to the mere existence of the sanctions; Non-application by Russian courts of the anti-Russian sanctions provisions via public policy exception or via change of choice-of-law agreement that can automatically lead to a foreign party loss of the case; Foreclosure of assets in the territory of the Russian Federation in case of enforcement of Russian court decision or violation of anti-suit injunctions imposed by Russian courts. 3. Problematic issues The Law definitely provokes many complicated legal issues. First of all, the Law does not provide for any provisions regarding its operation in time. Therefore, the question of whether it will apply to prorogation or arbitration agreements concluded before or after its effective date remains open and potentially very controversial. The absence of provisions regarding (1) the possibility of transferring a dispute to the Russian domestic arbitration, (2) the procedure for the recovery of a penalty for violation of the Russian anti-suit injunctions also constitutes a legal gap that will require a thorough legal analysis of these issues. 4. Possible solutions Despite the unlikeliness of such Russian judicial acts’ recognition and enforcement abroad and, therefore security of assets outside Russia, it is advisable to take additional measures to proactively protect business interests in commercial relationships with Russian entities that are or can be included in any sanctions lists, including: Drafting of sanction clauses with mechanisms to settle potential disputes without the need to apply to any forum. Selection of a seat of arbitration in the territory of neutral countries that have not imposed the anti-Russian sanctions. This can help avoiding the administrative restrictions that EU or US arbitration institutes shall comply with. This could potentially lower the risks of triggering Russian courts to recognize an arbitration agreement as unenforceable due to such minor administrative barriers. Application of enhanced methods of obligations securing, which could help to enforce obligation without applying to the jurisdictional bodies or to enforce a potential non-Russian court order or arbitral award (e.g. using escrow accounts with banks outside the Russian Federation, or other collateral outside Russia, etc.). 1 See Decision of the Constitutional Court of the Russian Federation N 8-P dated February 13, 2018. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practice: Dispute Resolution Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.

Best Lawyers – one of the most authoritative international legal ratings – has published the results of the Russian legal market research 2021. The rating is based on the estimates of internationally recognized market players. This is not the first time that ALRUD has taken a leading position in key practices, and this year our experts have managed to expand their presence in the rating. Maxim Alekseyev, Senior Partner, is the winner of the Lawyer of the Year 2021 rating in the field of business administrative regulation. For the second year in a row, the labor practice team brings ALRUD the title of the Law Firm of the Year in Russia 2021. This year, Irina Anyukhina, Partner and Head of the Labor practice, becomes the winner of the Lawyer of the Year 2021 in the field of Labor law. Best Lawyers recommends ALRUD experts in the following fields of law: Arbitration and Mediation - Vassily Rudomino, Senior Partner, Magomed Gasanov and Sergey Petrachkov, Partners and Dmitry Kuptsov, Senior Associate Banking and Finance Law - Alexander Rymko, Partner Capital Markets Law - Vassily Rudomino, Senior Partner and Alexander Zharskiy, Partner Competition / Antitrust Law - Vassily Rudomino, Senior Partner, German Zakharov, Partner, Ruslana Karimova and Ksenia Tarkhova, Senior Associates, Roman Vedernikov, Associate Construction Law - Irina Anyukhina, Partner and Stanislav Veselov, Senior Associate Corporate Law - Maxim Alekseyev and Vassily Rudomino, Senior Partners, Alexander Zharskiy, Partner, Olga Pimanova and Oleg Ezhov, Of Counsels, Sergey Khanaev, Senior Associate, Dmitry Pashkov and Alexander Kleschev, Associates Corporate governance and Compliance - Alla Azmukhanova, Associate Criminal Defense - Alexander Mikhailov, Associate Information Technology Law - Irina Anyukhina, Maria Ostashenko and Anton Dzhuplin, Partners and Ksenia Erokhina, Senior Associate Insolvency and Reorganization Law - Vassily Rudomino, Senior Partner, Sergey Petrachkov and Alexander Zharskiy, Partners Intellectual Property Law - Irina Anyukhina and Maria Ostashenko, Partners and Ilya Khodakov, Associate Investment - Vassily Rudomino, Senior Partner Labor and Employment Law - Vassily Rudomino, Senior Partner, Irina Anyukhina, Partner, Olga Pimanova, Of Counsel, Margarita Egiazarova and Anastasia Petrova, Senior Associates Litigation - Vassily Rudomino, Senior Partner, Magomed Gasanov and Sergey Petrachkov, Partners, Boris Ostroukhov, Senior Associate, Denis Bekker, Associate Media Law - Irina Anyukhina and Maria Ostashenko, Partners Mergers and Acquisitions Law - Vassily Rudomino and Maxim Alekseyev, Senior Partners, Alexander Zharskiy and Andrey Zharskiy, Partners, Timur Akhundov, Senior Associate Privacy and Data Security Law - Irina Anyukhina, Partner Real Estate Law - Irina Anyukhina and Alexander Zharskiy, Partners and Aleksey Kalinkin, Associate Regulatory Practice - Maxim Alekseyev, Senior Partner and Dina Kravchenko, Associate Tax Law - Maxim Alekseyev, Senior Partner, Elena Novikova, Of Counsel, Sergey Artemiev, Associate Technology Law - Anton Dzhuplin, Partner Telecommunications Law - Irina Anyukhina and Maria Ostashenko, Partners Trusts and Estates - Kira Egorova, Of Counsel, Ekaterina Vasina, Senior Associate

In times of the ongoing crisis, associated with the spread of the novel coronavirus infection (COVID-19), and the introduction of epidemiological requirements and restrictions, many businesses have faced difficulties with contractual performance, including the failure in supply, cancellation of scheduled events and often cutbacks in profits and the impossibility to perform monetary obligations. In such a situation, companies are forced to decide the future of concluded contracts, at short notice, and may seek legal means to properly perform their obligations, or to distribute the risks relating to suspension, or termination, of obligations that have become difficult, or impossible, to perform. This guide does not purport to cover all possible situations regarding the failure to perform commercial contracts during the crisis. However, we have done our best to collect answers to the most common legal issues about contract work, during financial and other shocks faced by Russian companies and their foreign partners. 1. What to do with a contract, performance of which has become impossible, or unprofitable, in times of the crisis? Depending on the specific circumstances, the contract can be terminated due to the impossibility of performance (Articles 416 and 417 of the Civil Code of the Russian Federation), amended, or terminated, due to a material change of circumstances (Article 451 of the Civil Code of the Russian Federation). You can suspend performance and exclude liability for a delay due to ‘force majeure’ (Clause 3 of Article 401 of the Civil Code of the Russian Federation), or restructure the obligations of the parties, by modifying the terms of the contract (on price, terms, performance, etc.), or by terminating it (unilateral refusal, set-off, novation, compensation for release from obligations etc.). The set of tools, and the choice of a specific instrument, depends both on the conditions of the concluded contract and on the actual circumstances of its performance. At the same time, it is necessary to take into account the specifics of the applicable legislation and enforcement practices, as well as to ensure proper formalization, in order to exclude the risk of subsequent judicial challenge. 2. In what cases, and how, can a contract be terminated due to the impossibility of its performance? The occurrence of force majeure circumstances does not in itself terminate the obligation if performance remains possible after such circumstances have ceased to exist. However, in cases where performance of an obligation is hindered by physical impossibility (that is, the obligation from the contract cannot be objectively performed by any person1), or legal impossibility (when the obligation can be physically performed, but this will be a violation of an act of a state authority, or local government), such obligation shall terminate automatically. Physical impossibility includes, in particular, the loss of an individually-defined object intended for transfer, or use, under the contract. Legal impossibility includes the introduction of export, or import, restrictions. It is important that the circumstance that led to the impossibility of performance of the contract arises after its conclusion, and does not depend on any of the parties. The Supreme Court of the Russian Federation in the “Review on certain issues of judicial practice related to the application of legislation and measures to counteract the spread of novel coronavirus infection (COVID-19) No. 1 in the Russian Federation", approved by the Presidium of the Supreme Court of the Russian Federation of April 21th, 2020 (“Review No. 1”), confirmed that the spread of novel coronavirus infection, and the restrictive measures taken in connection with this, could lead to the termination of contractual obligations due to the complete, or partial, impossibility to perform them, on the basis of Articles 416 and 417 of the Civil Code of the Russian Federation. To terminate the contract due to the impossibility of its performance, prepare a written notice on the termination of the contract, indicating the circumstances that impede performance of contractual obligations, and send such notice to your counterparty at the address of registration (indicated in the Unified State Register of Legal Entities, or Unified State Register of Individual Entrepreneurs), or at the address indicated in the contract. 3. In what cases, except as indicated in paragraph 2, is a party entitled to initiate the termination, or amendment, of the contract unilaterally, for reasons related to COVID-19? If the right to a unilateral termination of a contract, or a change in its terms, is provided by law, or the contract (Article 450.1 of the Civil Code of the Russian Federation), it is not required to apply to the court. It is enough to notify the counterparty about the termination, or amendment, of the contract by sending him/her a written notice, in accordance with the procedure laid down in the contract, or the provisions of the law on sending legally relevant messages (Article 165.1 of the Civil Code of the Russian Federation). The contract will be deemed terminated, or amended, from the date the counterparty received such notice, unless otherwise provided in the notice, contract, or law. If the right to unilateral termination of the contract, or change of its conditions, is not provided (in general, or for the current situation), then you can use the following tools: (A) the creditor has the right to refuse to perform the contract, if he/she has lost interest in connection with the delay of the debtor2, including for reasons related to COVID-19. The debtor does not have such a right, unless it is expressly provided for by the contract; (B) the creditor has the right to terminate the contract in the event of a foreseeable breach of the contract by the debtor, that is, if there are circumstances that clearly indicate that such performance will not be made on time3 (for example, if the contractual delivery time for the goods in respect of which export, or import, restrictions have been introduced, although will be effective in the future, it will obviously fall within the period of validity of such restrictive measures, which will lead to a violation of the contract); (C) in addition, the contract may be terminated, or amended, due to a material change of circumstances4 if the interested party proves5 that the following conditions apply simultaneously: (i) at the conclusion of the contract, the parties believed that such changes would not occur; (ii) the reasons for the changes are insurmountable; (iii) the interested party does not bear the risk of changing circumstances and (iv) negative consequences will come for him/her in terms of such damage that the interested party did not expect when concluding the contract, if the contract is performed unchanged. In its Review No. 1, the Supreme Court of the Russian Federation confirmed that the circumstances of the spread of COVID-19 may be the basis for the requirement to amend, or terminate, the contract due to a significant change in circumstances6. However, it is important to consider that the contract may exclude the right of the parties to invoke the material change of circumstances, as a basis for amending, or terminating the contract. In all these cases, the party initiating the amendment, or termination, of the contract should send the counterparty a written notice, or proposal, to amend, or terminate, the contract. In case of rejection of the proposal to amend, or terminate, the contract (including due to a material change of circumstances), or in case of failure to receive a response to the proposal, to terminate, or amend, within 30 days7 from the date of its sending, the interested party has the right to apply to the court, with a corresponding lawsuit8. 4. Is it possible to avoid liability for non-performance, or breach of contract, in the crisis (including due to COVID-19)? As a general rule, a party that has carried out entrepreneurial activities is responsible for non-performance, or breach, of obligations, even in the absence of fault. The only exception is non-performance, or breach, of the contract caused by the occurrence of extraordinary and unforeseeable circumstances, for which neither of the parties is responsible (force majeure)9. To date, in judicial practice, an approach has been formed, according to which breach of obligations on the part of the debtor’s counterparties, lack of necessary goods on the market, lack of cash, the financial crisis10, illegal actions of third parties11, devaluation of the national currency and rate fluctuations12, bankruptcy of a debtor’s counterparty13 or revocation of a license14 are not considered to qualify as force majeure circumstances. Thus, if non-performance, or breach of the contract, is due to one of the indicated circumstances, you may need to turn to other tools, for example, refer to the objective impossibility of performance of the contract (paragraph 2), a material change of circumstances (paragraph 3), or initiate negotiations on changing the terms of the contract, for period of the crisis (including for the period of the circumstances related to COVID-19). The recognition of the circumstances related to COVID-19 as force majeure depends on the terms of the contract itself, as well as on the specific circumstances of its performance. Thus, the Supreme Court of the Russian Federation clarified that recognition of the spread of novel coronavirus infection as force majeure cannot be universal for all categories of debtors, regardless of the type of their activity, the conditions for its implementation, including the region in which the organization operates. The existence of the force majeure circumstances must be established, taking into account the circumstances of a particular case (including the deadline for performance of the obligation, the nature of the unperformed obligation, the reasonableness and good faith of the actions of the debtor, etc.)15. It is important to note the position of the Supreme Court of the Russian Federation, as provided for in Review No. 1, according to which, in some cases related to COVID-19, the lack of necessary funds can also be recognized as force majeure (despite the fact that such a circumstance is not traditionally recognized as force majeure, in judicial practice). See paragraph 5 and paragraph 6 for how to properly notify the counterparty of the force majeure circumstances and what evidence should be provided. Negotiations to amend, or terminate, the contract should be recorded, and all changes to the terms of cooperation should be recorded in the form of supplementary agreements, or annexes to the current contract. If it is impossible to determine the procedure for further performance of the contract by the current date, indicate in the supplementary agreement that the parties are not responsible for non-performance of obligations, during the crisis (in particular during COVID-19), as well as the obligation of the parties to negotiate, after a specified period of time, to determine the future of the contract and agree liability for non-performance of such obligation. 5. How to properly notify the counterparty of the force majeure circumstances? The term and force majeure notification procedure may be specified in the contract. If the procedure is agreed, it must be followed, otherwise a force majeure clause might not be effective.16 If the notification procedure has not been agreed, the written notice of the occurrence of force majeure should be given to the counterparty as soon as possible, to avoid claims for damages17. If the contract does not specify the parties’ addresses to send legally-relevant notifications, the notification should be sent to the registration address of the counterparty, specified in the Unified State Register of Legal Entities, or Unified State Register of Individual Entrepreneurs18. Notice will be deemed received from the date of delivery, unless the parties have provided for other rules in the contract19. Proof of force majeure should be attached to the notice (see paragraph 6). 6. How to prove the causal link between a force majeure event and non-performance? The parties may agree, in the contract, a list of force majeure evidence that will be conclusive, for instance, indicate a force majeure certificate issued by the Chamber of Commerce and Industry of the Russian Federation (“RF CCI”). Kindly note that RF CCI may issue certificates only for force majeure events that have occurred on the territory of Russia and arisen as part of performance of a foreign trade contract. In order to confirm force majeure events that have occurred in the territory of other states, it is necessary to apply to a competent authority of those states. You should not rely on a certificate of RF CCI, if a contract is not a foreign trade contract. In this case, as evidence, indicate that a certificate of occurrence of a force majeure event issued by chambers of commerce and industry of constituent territories of the Russian Federation20. To avoid disputes arising from new contracts, specify that the document confirming the occurrence of force majeure circumstances should be issued by the RF CCI (in case of local contracts – CCI of a constituent territory of the Russian Federation), or another competent authority. 7. How to calculate the terms of contractual performance in the context of “non-business days” introduced in Russia? The term of performance of the contractual obligation is calculated in calendar days, if calculation in business days is not directly specified by law, or the contract. If the last day of the term is a non-business day, the day of expiry of the term will be the next business day21. Since the Decrees of the President of the Russian Federation22 declared the days from March 30th to May 11th, 2020 to be “non-business”, the question arises of performance of the obligation, the deadline for which falls on the period of such “non-business days." According to the Review No. 1 and the “Review on certain issues of judicial practice related to the application of legislation and measures to counteract the spread of novel coronavirus infection (COVID-19) No. 2 in the Russian Federation”, approved by the Presidium of the Supreme Court of the Russian Federation on April 30th, 2020 (“Review No. 2"),"non-business days" are among the measures established to ensure the sanitary and epidemiological well-being of the population, aimed at preventing the spread of novel coronavirus infection (COVID-19), and cannot be regarded as “non-business days” in the meaning assigned to it by Civil Code of the Russian Federation23. In the sense of the Reviews, otherwise it would mean a suspension of performance of all civil obligations, without exception for a long period, and a significant restriction of civil circulation in general. Such interpretations do not meet the goals of the said Decrees of the President of the Russian Federation. In this regard, if there are no grounds for exemption from liability for non-performance of the obligation (Article 401 of the Civil Code of the Russian Federation), the establishment of non-business days in the period from March 30th to May 11th, 2020 is not a basis for postponing the time for performance of obligation, on the basis of the provisions of Article 193 of the Civil Code of the Russian Federation. The same rule applies to government and municipal contracts, for which from April 4th to May 11th, 2020, inclusive, terms specified by law24 and regulations and calculated in business days, are calculated in calendar days (without regard to Saturdays and Sundays). If the last day of the term is a “non-business day”, the day of expiry shall be that non-business day, and if it is a Saturday or Sunday, the next Monday.25 8. What should be included in a force majeure clause, for contracts concluded during COVID-19, and after that? The contract should establish what circumstances are qualified as force majeure, the procedure, form and term for notification of the occurrence of a force majeure event, as well as agree on a list of evidence of force majeure. If the parties are interested in maintaining the obligation for the period of the crisis, we recommend to include a clause that the occurrence of force majeure does not terminate the contract (either completely, or partially). It is reasonable to agree that, upon expiry of the period of validity of the force majeure circumstances agreed upon by the parties (for example, 2 – 3 months), each party, or one of the parties, has the right to refuse further performance of the contract in an out-of-court procedure. 9. Should COVID-19 be expressly mentioned as a force majeure event in contracts entered into, prior to the lifting of restrictive measures? Force majeure events may include only those events that are both extraordinary and inevitable. That is, those are exceptional circumstances that are not customary, under given conditions, and any party, engaged in a similar activity as a debtor in question, could not have prevented their occurrence (nor their consequences)26. Kindly note that, if certain events are named as force majeure in an agreement, it does not automatically mean that they will be qualified as such by the court, in case of disputes. Further, in case a contract is made during the COVID-19 period, the court may hold that the coronavirus is not a force majeure event, since it does not satisfy the criteria of an “extraordinary” event, which is similar to disputes arising from contracts concluded during the period of international sanctions.27 In this regard, in our opinion, it is more effective to distribute the risks of introducing new restrictive measures, due to COVID-19, through contractual institutions of compensation of property losses, waiver of rights and a contract withdrawal (see paragraph 10). 10. What clauses to include in the contract made during COVID-19? The Civil Code of the Russian Federation allows the parties to agree, in advance, on indemnity clauses (compensation of property losses), related to occurrence of circumstances specified in the contract, that are not related to the parties' breach of their obligations28, including in case novel COVID-19-related restrictive measures are introduced. In order for the indemnity clause to be valid and enforceable, it is necessary to specify the amount of the indemnified losses (fixed amount, or calculation formula) and the range of circumstances, which upon their occurrence, allow the party to claim such indemnity. Apart from indemnity clauses, we recommend including a clause on the right of the parties (or one of them) to unilaterally refuse to continue with the contract (in whole, or in part, affected by the restrictive measures) in the event of the certain circumstances (for example, in the case of the introduction of new restrictive measures, or in the absence of the necessary goods on the market, or in case the other party becomes insolvent). Among other things, in long-term contracts, you should be more careful about the conditions for the calculations of prices, in particular, include the conditions for the revision of the price upon the occurrence of the agreed circumstances. At the same time, the terms of the contract that “the price may be changed” will most likely not be enough. It is worth carefully considering monetary clauses, which should meet the interests of the parties, in the event of a devaluation of the national currency, or other financial shocks. For example, in the contract you can specify a fixed exchange rate, or to include a formula for calculating the price, when experiencing fluctuation of the exchange rates. In times of the crisis associated with the spread of COVID-19, the conclusion, amendment, or termination of the contract using electronic, or other technical, means became even more relevant (Articles 160 and 434 of the Civil Code of the Russian Federation). In order to give legal force to the contract concluded, in particular, by exchanging emails, or using platforms for generating and verifying electronic signatures (DocuSign, etc.), the parties shall conclude an agreement on electronic interaction. 1 Para. 21 of the Review of case law, approved by the Presidium of the Supreme Court of the Russian Federation of April 26th, 2017. 2 Para. 2 of Art. 405 of the Civil Code of the Russian Federation (hereinafter –"CC RF"), para. 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 23rd, 2016 No. 7 “On application by the courts of certain provisions of the Civil Code of the Russian Federation on liability for breach of obligations” (hereinafter – "Resolution of the Plenum of the Supreme Court of the Russian Federation No. 7"). 3 Para. 2 of Art. 328 of the CC RF. 4 Art. 451 of the CC RF. 5 The decision of the Presidium of the Supreme Arbitrage Court of the Russian Federation of October 14th, 2008 No. 5934/08; the decision of the Supreme Court of the Russian Federation of August 8th, 2016 No. 57-KG16-7. 6 Question 8 of the Review No. 1. 7 Para. 2 of Art. 452 of the CC RF. 8 Please note that due to a fundamental change in the circumstances (see section (C)), the contract, as a general rule, is terminated by a court decision. The contract in the event of a fundamental change in the circumstances may be amended by the court decision in exceptional cases specified in paragraph 4 of Article 451 of the CC RF. 9 Para. 3 of Art. 401 of the CC RF. 10 Para. 3 of Art. 401 of the CC RF. 11 The decision of the Presidium of the Supreme Arbitrage Court of the Russian Federation of June 9, 1998 No. 6168/97. 12 The decision of the Arbitrage Court of the Moscow District of August 3rd, 2017 No. Ф05-9562/2017 in the case No. А40-129109/2016. 13 The decision of the Supreme Court of the Russian Federation of December 6th, 2005 No. 49-В05-19. 14 The decision of the Arbitrage Court of the Moscow District of March 28th, 2016 No. Ф05-2728/2016. 15 Question 7 of the Review No. 1. 16 See, for example, the Resolution of the Arbitrage Court of the North-Western District of February 7th, 2017 N F07-11803/2016 in the case No. A05-551/2016 (Ruling of the Supreme Court of the Russian Federation of April 18th, 2017 No. 307-EWS17-4115 denied the transfer of the case No. A05-551/2016 to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation for review in cassation proceedings of this decision), Resolution of the Arbitrage Court of the Moscow District dated September 2nd, 2019 in case No. A41-90677/2018, Resolution of the Arbitrage Court of the Volga District dated June 8th, 2018 No. F06-33131/2018 in case No. A65-20171/2017. 17 Para. 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 7. 18 Para. 3 of Art. 54 of the CC RF, para. 63 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 23rd, 2015 No. 25. 19 Para. 1 of Art. 165.1 of the CC RF. 20 Protocol of the Government Commission on Increasing Sustainability of the Russian Economy Development No. 3 of March 20th, 2020. 21 Art. 190 of the CC RF, Art. 193 of the CC RF. 22 The Decree of the President RF of April 2nd, 2020 No. 239 “On measures to ensure sanitary-epidemiological well-being of the population in the territory of the Russian Federation in connection with novel coronavirus infection spread (COVID-19)”. 23 The weekend and non-business days mentioned in the CC RF should be determined in accordance with Art. 111 and 112 of the Labor Code of the Russian Federation. 24 Federal Law No. 44-FZ of April 5th, 2013 “On the Contract System for the Procurement of Goods, Works and Services to Support State and Municipal Needs”. 25 The Resolution of the Government of the Russian Federation of April 3rd, 2020 No. 443 “On the peculiarities of procurement during the period of taking measures to ensure sanitary-epidemiological well-being of the population in the territory of the Russian Federation in connection with the novel coronavirus infection spread”. 26 Para. 3 of Art. 401 of the CC RF, para. 8 of the Resolution of the Plenum of the Supreme Court No. 7, the Resolution of the Presidium of Supreme Arbitrage Court of the RF of June 21st, 2012 No. 3352/12. 27 Para. 8 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 7. 28 Art. 406.1 of the CC RF. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Commercial, Dispute Resolution Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.