“The Bank expected the traders to express their willingness in the rolling over of prepayments by email … until 6pm Moscow time, December 4th. The traders who agree to maintain the prepayments at the current level will have priority in receiving the cargos. Bilateral negotiations with each particular trader to be held within 2 weeks.”
“4 per month those that VTB had and Happy Christmas to you too.”
“Crude deliveries to Antipinsky and to the New Stream-operated 120,000 b/d Afipsky refinery resumed after the firm’s main lender, Sberbank, opened new credit lines in mid-December. In addition, state-controlled bank VTB agreed a$300m export financing deal with the refinery until late 2019, market participants say. New Stream also owns the 32,000 b/d Mari-el refinery.”
“Many thanks for your VGO offer. We are not in a position to bid as aggressively for March cargoes. However, we hope to be more competitive in the future!”
“(1) It is not allowed to exercise civil-law rights exclusively intending to cause harm to another person, to evade the law for unlawful purposes, as well as other [intentionally/knowingly] bad-faith exercise of civil-law rights (abuse of rights). (4) If the abuse of right has resulted in a violation of another person’s right, that person is entitled to claim compensation for the damages claimed. (5) The good faith of the parties to civil-law relations and the reasonableness of their actions are presumed.”
“(3) Participants in civil-law relations must act in good faith in establishing, exercising and protecting civil-law rights and in discharging civil-law obligations. (4) No one should benefit from his or her illegal or bad-faith conduct.”
“should have established if the residential unit had previously been handed to such a creditor for actual possession in fulfilment of the identical obligation, and the creditor whose right to the disputed thing was registered knew about this obligation while entering into the obligation related to this thing”
“Things defined by general characteristics are legally substitutable. Therefore failure to perform an obligation to deliver them (e.g. due to destruction or other loss of a particular batch of goods) generally enables the right holder to claim the same number of similar things, but excludes the possibility of claiming the same (specific) things in kind. For instance, a metal manufacturer undertook to sell 10 tonnes of nickel to a buyer, whereby the ownership of the metal in the contract was transferred to the buyer upon payment for the goods. However, after receiving the payment in the seller’s account, he sold all the metal he made, amounting to more than 100 tonnes, to another buyer. In such a situation, the original buyer may claim either the same quantity of metal from a newly manufactured batch or compensation for damages, but may not insist that 10 tonnes of nickel be withdrawn from the lot that was sold to another buyer.”
“[1] A party to a transaction and, in cases prescribed by statute, another person may claim the consequences of a void transaction. [2] A claim to invalidate a void transaction, irrespective of applying the consequences of its invalidity, may be granted if the person making such a claim has a legally protected interest in the invalidation of that transaction.”
“A transaction that violates the requirements of a statute or another legal act and thereby infringes on public interests or the rights and legally protected interests of third parties shall be void, unless it follows from the statute that such transaction is avoidable or other consequences of the violation not related to the invalidity of the transaction must be applied.”
“A transaction may be challenged by a third party whose rights will be restored (directly or indirectly) as a result of invalidation of the transaction”
“…to grant the relief claimed would violate well established principles of common law and equity. It would also appear to embarrass to a most serious degree the ordinary operations of buying and selling goods, and the banking operations which attend them … Speaking generally, courts of equity did not decree specific performance in contracts for the sale of commodities which could be ordinarily obtained in the market where damages were a sufficient remedy. Possibly the statutory remedy was intended to be available even in those cases. But the Code appears to have this effect, that in contracts for the sale of goods the only remedy by way of specific performance is the statutory remedy, and it follows that as the goods were neither specific nor ascertained the remedy of specific performance was not open to the creditors … Does it make any difference that the creditors here paid their purchase money in advance of the due date, and in any case before they could get delivery under the contract? I think not. So far as specific performance is concerned, the right seems to exist, if at all, independently of whether one party or the other has performed his part of the contract; and I have already dealt with the objections to the demand for specific performance under the provisions of section 52 of the Code …”
“80. VTB argued (and Teare J accepted on the without notice application) that damages were not an adequate remedy in the present case, not least because VTB had entered sub-sales in respect of VGO to be shipped from Murmansk of a specification only available, in practical terms, from Antipinsky's refinery. Further, exclusion clauses in the Offtake Contracts might well preclude VTB from recovering losses incurred in the sub-sale contract from Antipinsky, which was in any event not likely to be good for any damages due to VTB. 81. However, the fact that Antipinsky was in financial trouble and was double-selling its production of VGO, notwithstanding that VTB had prepaid to purchase that production, does not take the matter out of the ordinary, let alone justify granting an injunction which gives priority to VTB over other purchasers of Antipinsky's goods, whether their contracts were before or after VTB's contracts. The Cargo Injunction in effect runs directly counter to the recognition in Re Wait that, even where the seller is dishonest in taking prepayment and has sold its entire production to a third party, the innocent purchaser does not acquire any form of equitable or other proprietary interest in that production and is not entitled to orders which would have that effect. 82. Further, in the present case there is no question of a more general failure in the market which is being exploited by a large supplier, putting a purchaser out of business, as was the position in Sky Petroleum[1974] 1 WLR 576 . 83. For those reasons I refuse to continue the Cargo Injunction on the basis that this is not an exceptional case where the discretion to grant such an injunction arises. But even if it was such a case, I would decline to exercise my discretion in circumstances where: (i) there are multiple claimants to Antipinsky's production of VGO (including that aboard the Polar Rock), both contractual claims (in the case of Petraco) and proprietary claims (in the case of MachinoImport); and (ii) it appears that Antipinsky was in deep financial difficulties and might well have creditors with equal if not better claims than VTB to the preservation and ultimate distribution of its assets.”
“The defendant’s objection that the claimant’s claim is based on a void transaction is evaluated on the merits regardless of the expiration of the limitation period for declaring this transaction invalid.”
“If several persons deposit goods which are defined in the contract by generic characteristics, and such goods are commingled by the depositee, the persons who have made the deposits become owners by shares of the mass in proportion to the quantities which they have deposited. If there is an agreement to the effect that such goods are transferred to the ownership of the depositee, he is required to return to each person who has made a deposit an equal quantity, or the quantity stipulated by the parties, of goods of the same type and quality.”
“(1) Harm caused to the person or property of an individual, as well as harm caused to the property of a legal entity, should be compensated in full by the person who caused the harm.”
“A distinctive feature of the emergence of tortious legal relations is the violation of rights that are absolute in nature, where a right holder is opposed to an indeterminate number of obligated persons. In contrast the improper performance of obligations to spend CMI funds in a targeted manner is in the framework of relative legal relations where the right of the right-holder is protected against violations by strictly defined persons.”
“Therefore tort obligations do not arise when relative rights are violated but as a general rule when absolute rights are violated, resulting in property or non-property (non-pecuniary) harm”
“In the event of harm caused as a result of the non-performance or improper performance of a contractual obligation, the rules on liability for the infliction of harm shall not apply … The depositor is therefore entitled to claim damages from the custodian under the agreement concluded with it, but not from third parties under the rules on tortious liability, if the property deposited is damaged …”
“The applicant’s reference to other remedies available to the company cannot be taken into account either, as the mere existence of any other remedies to protect the infringed right does not rule out the possibility of the person whose rights have been violated to make a claim seeking damage on the basis of Article 1069 of the Civil Code of the Russian Federation, which correlates with the right of the plaintiff to independently determine the most effective way of protection of the right provided by law”
“While we will probably have a plan to restructure the loan somehow, please ensure that all physical deliveries are made even if they are delayed to future months. The total number of physical cargo deliveries must be honoured by Antipinsky.”
“(a) laytime or, if the Vessel is on demurrage, demurrage shall at each loading and each discharge port or place commence at the expiry of 6 hours after Notice of Readiness to load or discharge has been received from the Master or his agents by Charterers or their agents, berth or no berth, or when the Vessel commences to load or discharge at the berth or other loading or discharging place, whichever first occurs. Such Notice of Readiness may be given eitherbyletter, facsimiletransmission, telegram, telex, radio or telephone (and if given by radio or telephone shall subsequently be confirmed in writing and if given by facsimile transmission confirmed by telex) but Notice of Readiness shall not be given without Charterers' sanction, before the commencement of laydays …”
“But there is a crucial difference in principle between the exercise of an undoubted right of property and resort for its protection to discretionary remedies. In so far as Mr Fisher may seek to restrain what the other joint owner may do in the exercise of its share of the copyright by means of injunctions, he will be subject to the court's discretion. Unconscionable delay may well have a part to play in the court's decision whether or not he is entitled to such a remedy. But it would be a very strong thing, in the absence of a proprietary estoppel, to deny him the opportunity of exercising his right of property in his own share of the copyright. The law of property is concerned with rights in things. The distinction which exists between the exercise of rights and the obtaining of discretionary remedies is of fundamental importance in any legal system. There is no concept in our law that is more absolute than a right of property. Where it exists, it is for the owner to exercise it as he pleases … … The majority in the Court of Appeal were, for understandable reasons, reluctant to offer the court's assistance to someone who had delayed for so long in asserting his claim. But it appears that, when they decided to deny him these further declarations which were designed to give effect to the rights that flowed from his co-authorship of the work which was found on unassailable grounds to have been established by the trial judge, they overlooked this fundamental distinction.”
“Careful consideration is required before holding that a false statement made in legal proceedings in support of an otherwise valid claim for equitable relief justifies the court in refusing that relief. An (admittedly absolute) rule to similar effect in insurance cases was rejected by the Supreme Court in Versloot Dredging BV v HDI Gerling Industrie Versicherung AG[2016] UKSC 45 ;[2017] AC 1 , [36], Lord Sumption JSC noting that ‘there are principled limits to the role which a claimant's immorality can play in defeating his legitimate civil claims’. The Supreme Court conclusion that there was no such common law rule made it unnecessary to consider the alternative argument advanced in that case that such a rule infringed Article 1 Protocol 1 of the ECHR (at least to the extent that it was not subject to limitations similar to those which apply to dishonestly exaggerated personal injury claims unders.57 of the Criminal Justice and Courts Act 2015 ). The suggestion that false statements at trial can themselves provide a basis for refusing relief has also been rejected in insurance cases (Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd (The Star Sea)[2003] 1 AC 469 ). While there is an obvious point of distinction between relying on conduct in litigation to refuse substantive discretionary relief, and as a basis for forfeiting otherwise absolute contractual entitlements, the policy considerations which have led to the restatement of insurance law in this context may have implications for similar arguments in equity.”
“The Court ought not to interfere for the purpose of preventing a party from enforcing a legal claim, without securing to itself the means of putting him in the same position, in the event of his turning out to be right, as if the Court had not interfered: whereas, by making a prospective order like the present, the Court could not determine what security it ought to require the Plaintiff to give, as the condition of his obtaining the injunction, so as to enable the Court to do justice to the Defendant, in the event of the Plaintiff's failing to make out his case at the hearing.”
“The practice of requiring an undertaking in damages from the applicant for such an injunction as the price for its grant was originated by the Court of Chancery as an adjunct to the equitable remedy of an injunction … The form of the undertaking indicates that the court has a discretion whether to enforce it at all and that discretion is not limited in any way. The power to enforce the undertaking being incidential to the power to grant an injunction …. the discretion will be exercised in accordance with ordinary equitable principles.”
“There is no dispute that there exists in English law a defence to a claim for equitable relief, such as an injunction, which is based on the concept encapsulated in the equitable maxim ‘he who comes into equity must come with clean hands’. Mr Nicholls accepted that the doctrine applies to a claim for an anti-suit injunction where the claim is based on an allegation that the defendant has started proceedings in a foreign jurisdiction in breach of contract because the claimant and defendant had agreed to an exclusive jurisdiction clause in favour of the English courts. It is clear from the speech of Lord Bingham in Donohue v Armco Inc that this defence is distinct from that of there being ‘strong reason’ not to grant an anti-suit injunction. It was common ground that the scope of the application of the ‘unclean hands’ doctrine is limited. To paraphrase the words of Lord Chief Baron Eyre in Dering v Earl of Winchelsea the misconduct or impropriety of the claimant must have ‘an immediate and necessary relation to the equity sued for’. That limitation has been expressed in different ways over the years in cases and textbooks. Recently in Fiona Trust & Holding Corp v Privalov Andrew Smith J noted that there are some authorities in which the court regarded attempts to mislead it as presenting good grounds for refusing equitable relief, not only where the purpose is to create a false case but also where it is to bolster the truth with fabricated evidence. But the cases noted by him were ones where the misconduct was by way of deception in the course of the very litigation directed to securing the equitable relief. Spry: Principles of Equitable Remedies suggests that it must be shown that the claimant is seeking ‘to derive advantage from his dishonest conduct in so direct a manner that it is considered to be unjust to grant him relief’. Ultimately in each case it is a matter of assessment by the judge, who has to examine all the relevant factors in the case before him to see if the misconduct of the claimant is sufficient to warrant a refusal of the relief sought.” iii) Those passages were approved in UBS AG (London Branch) v Kommunale Wasserwerke Leipzig[2017] EWCA Civ 1567 [170]-[171] when addressing the equitable remedy of rescission, where the exercise was described as “one of those multi-factorial assessments to be conducted by the trial judge, with which an appellate court will be slow to intervene, unless the judge's conclusion was clearly wrong, or based upon some evident failure of analysis.”
“In considering the question of whether denying a remedy would be disproportionate, it may be important in the equitable context to distinguish between cases where denying the requested remedy would leave B with no protection and may give another party a windfall (as may be the case where B is attempting to assert a beneficial interest under a trust) and cases where B may instead turn to a different remedy for protection if the equitable remedy is denied (as may be the case where, for example, specific performance is denied but a money claim may still be available).”
“Many would think that deliberately to break a contract for the sale of future goods, where no question of property at law or in equity could arise, would be dishonest; but the law gives only a remedy in damages. In the simple cases suggested, which I hesitate to repeat, the farmer might be acting dishonestly in parting with the whole of his flock, his apples, his potatoes or his eggs to a different purchaser; but I venture to think that if he does the purchaser even with notice acquires a complete title to the property bought.”
“First, they make clear that conduct cannot qualify as inducement if it constitutes no more than preventing B from performing the contract with C as one of its consequences. There must be some conduct by A amounting to persuasion, encouragement or assistance of B to break the contract with C. Secondly, this participation by A in B's breach, must, in Lord Hoffmann's words, have 'a sufficient causal connection with the breach by the contracting party to attract accessory liability' or, in Lord Nicholls' words, so as to amount to 'causative participation'. It is because of the causative requirement that 'inducement requires the defendant's conduct to have operated on the will of the contracting party' in the words of Toulson LJ. If A's conduct is not capable of influencing a choice by whether or not to breach the contract, it is not capable of amounting to inducement; it cannot operate on the mind or will of B so as qualify as causative participation as an accessory to his breach. Thirdly, the mental element of the tort requires that there must be an intention that the breach of the contract must at least be the means to an end, rather than simply the foreseen or intended consequence of the tortious conduct.”
“That case does not assist Mr Jacob's argument on inconsistent dealings, and does not cast any doubt on the proposition that inconsistent dealings can be a form of inducement if, but only if, they meet the accessory liability and causative participation criteria articulated in OBG v Allen. It is an example of a case which fits within such principles, and within Lord Hodge's formulation in paragraph 13 of Global Resources v Mackay, because it involves conduct which attracts accessory liability in the form of assistance rather than persuasion. Mir Steel's involvement in the hive down arrangement was a participation in Alphasteel's breach of contract because it was a necessary part of the arrangements with the administrators, and Mir Steel's participation was necessary in order to enable Alphasteel to breach its contract as it wished to.”
“Twoquestionsarisewheneverthereisanapplication by a defendant to enforce a cross-undertaking in damages. The first question is whether the undertaking ought to be enforced at all. This depends on the circumstances in which the injunction was obtained, the success or otherwise of the plaintiff at the trial, the subsequent conduct of the defendant and all the other circumstances of the case. It is essentially a question of discretion. The discretion is usually exercised by the trial judge since he is bound to know more of the facts of the case than anyone else. If the first question is answered in favour of the defendant, the second question is whether the defendant has suffered any damage by reason of the granting of the injunction.”