The Bank and the penalties nothing to do with it
The ninth arbitration appeal court on Wednesday has published a motivation part of the adopted March 28 resolution that abolished the introduction of the low dollar rate against the ruble for the calculation of the rent for VimpelCom. The company earlier in the court of first instance has made low rate by filing a lawsuit against the owner of the business centre “the Hermitage Plaza” — the company PJSC “Tizpribor” (part of Eastern Property Holdings EPH). At the end of last year, December 29, 2015, the Arbitration court of Moscow partially satisfied the claim “VympelCom” to review the terms of the lease agreement from 2009, nominated in foreign currency. As a result, he could include in the lease a clause according to which if on the date of payment the exchange rate of the ruble to the dollar will be less than 30 rubles per US dollar, the payment should be made at the rate of 30 rubles per dollar, but if the ruble will be more than 42 rubles per dollar, the payment should be made at the rate of 42 rubles per dollar.
VimpelCom has motivated the need for revision of the lease rates that at the time of conclusion of the contract in determining the order of calculation of the rent in US dollars he took into account the difficult financial and economic situation in which the dynamics of U.S. dollar were insignificant, because the course has been adjusted by the Bank of Russia by means of foreign exchange interventions. In 2014, the Bank of Russia refused to regulate the exchange rate of the ruble, which, together with the imposition of economic sanctions against Russia led to changes in the economic situation and the growth rate of the US dollar against the national currency is 2.5 times that motivated his claim of “VimpelCom”. As a result the rate on the contract in rubles began to differ from the amounts previously oplachivaetsya tenant that, in the opinion of the plaintiff is in serious breach of balance of interests of the parties to the contract, which could not foresee the changing economic situation at the time of negotiation of the terms of the lease. In confirmation of his innocence, the representatives of “VimpelCom” referred to article 451 of the civil code according to which material change of circumstances may be grounds for alteration or termination of the concluded contract. In its decision the court pointed out that according to section 1 of article 2 of the civil code entrepreneurship is at your own risk, so the risk of change of circumstances should be held interested in changing the disputed contract, i.e. the company “VimpelCom”. At the same time, the Tribunal considered it possible to amend the agreement on the basis of observance of balance of interests of the parties. February 26, 2016 “Tizpribor” filed an appeal against this decision.
The court of appeal with arguments “VimpelCom” did not agree. According to the findings of the appellate court, the refusal of the Bank of Russia on regulation of the ruble and the imposition of economic sanctions against Russia by themselves are not the factors resulting in the inevitable devaluation of the national currency against the US currency. Important factors in this issue there may be other circumstances, such as fluctuations in world prices for hydrocarbons, the foreign capital inflow, the outflow of Russian capital to other countries, the stagnation of the economy and the slowdown in industrial production, the slowdown of GDP growth, the political situation in the country, the actions of the countries-issuers to strengthen their currencies, the foreign currency proceeds from export operations and more. Ultimately the exchange rate determined by the market and the entire set of market factors.
“Thus, the growth of the dollar against the ruble is not the essential circumstance, the occurrence of which cannot be foreseen, because, entering into a contractual relationship, the parties should foresee the economic situation taking into account the country monetary policy and the possibility of transition to the market rate of the US dollar, therefore, could not exclude the possibility of a sharp weakening of the national currency in the period of execution of the transaction, including as a result of the above factors,” the court concluded. VimpelCom will carefully consider the reasoning of and then will make a decision on the appeal”, — is spoken in the answer of the company on 30 March.
Against common sense
In December 2015, when the court has satisfied the claim “VympelCom”, the lawyers called the court’s decision set a precedent that would allow to review all civil-law contracts concluded in foreign currency. “This court decision gives grounds for termination of almost all civil-law contracts concluded in foreign currency, and this in turn may lead to economic collapse”, — TASS cited the words of managing partner of law firm “Bartolius” Julia Ty. According to the consulting company JLL, the market of Moscow office real estate from 50 to 70% of lease contracts concluded in foreign currency, provided data at the end of January 2015 TASS.
According to the lawyer of the Collegium of advocates “Yukov and partners” Marina Krasnobaeva, a positive decision in this case looked at least strange. “It defies common sense, therefore, the solution initially could not become a precedent. There is a classic viewpoint, in which you can’t do that, if we aspire to a market economy. Our government must make the national currency was riding. Why the judge decided to make such a revolution, it is not clear”, — says the lawyer.