Recently, a group of shareholders from ZAO SMARTS (a mobile operator) filed a counterclaim against OOO SoyuzInvest to recover damages caused by interim measures imposed in order to satisfy a claim by OOO SoyuzInvest relating to indebtedness on a credit agreement.

The court of the first instance ruled against the counterclaim, indicating that ZAO SMARTS is an enterprise with high revenues; therefore, the arrest of the shares did not cause its shareholders any damage. In the court’s opinion, ZAO SMARTS had not proved the exact amount of damages, a decision which the cassation court upheld.

However, the Supreme Commercial Court of the Russian Federation (the “SCC”) did not agree with the lower courts, indicating that:

  • arresting the shares automatically deprived ZAO SMARTS from being able to conduct dynamic business activities and develop at the same pace as the other market players; and 
  • having to postpone the sale of the shares owing to the arrest automatically caused damage to ZAO SMARTS’ shareholders who wished to sell their shares during a sharp decline in the securities market. 

The SCC has recognised as unlawful the unconditional refusal to satisfy the ZAO SMARTS shareholders’ claim for damages. The SCC has based this decision solely on the fact that it is not possible to establish the amount of damages with any reasonable degree of certainty. The SCC’s position provides grounds for the review of similar cases.

[Decree No. VAS-2929/2011 of the Presidium of the Supreme Commercial Court of the Russian Federation, dated 6 September 2011, on case No. A56 44387/2006]