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Kachkin & Partners protected interests of a major Oil & Gas equipment supplier

Our client, "Gidromashservis" CJSC, was accused by a buyer, a "Transneft" group company , of a failure to deliver the equipment on time. A penalty amount under bank guarantees was charged off the account of "Gidromashservis"; a suit on award of a penalty not covered by bank guarantees was also filed against the company. The total claims have exceeded 27 mln rubles. On behalf of the client, Kachkin & Partners Corporate and Dispute Resolution Team filed a lawsuit on recovery of the charged penalty. The file was consolidated with the opponent's claim. Kachkin & Partners' experts proved that the main delay occurred due to the fault of the equipment buyer. The court declared that on the part of the buyer there was violation of the obligations under the agreement which made it impossible to perform the delivery on time. The penal sum was reduced more than 46 times as not being appropriate to the consequences of a breach due to expert strategy of litigation and the provided evidentiary base.

 

This case is especially interesting in terms of a new forming practice on penalty recovery and the explanations of the Plenum of the Supreme Commercial Court of the Russian Federation (the decree of the Plenum of the Supreme Commercial Court dated 22.12.2011 № 81) on possibility to reduce a penalty by the court and indication approaches to the limits of such a reduction.

Particularly the Plenum of the Supreme Commercial Court stated that if a disparity of a penal sum to the consequences of a liability breach found, a size-reduction limit of a penalty is usually a double size of the Bank of Russia refinancing rate, which was set during the period of a violation. However a penal sum might be calculated at the lower rate if an average payment for short-term working capital credits, provided by banks to entrepreneurs, is lower than a double refinancing rate at the location of a debtor during violation of obligations. Kachkin & Partners' experts presented statistics of Moscow (the location of the debtor) and calculated an average rate on credit under comparable terms. The rate turned to be lower than a double refinancing rate. This position was confirmed by the courts of all jurisdictions.

 

Reference:

"Gidromashservis" CJSC is a leading company specialized in packaged supply of pump, skid mounted and other equipment for oil and gas industry, water services, housing and public utilities, thermal and nuclear power systems, metal manufacture, chemical industry and shipbuilding. The company supplies a wide variety of equipment of different packages: pumps, pumping units, compression facilities and compression units, oilfield, measuring equipment, including modular equipment. And it also renders services of erection supervision, commissioning operations, remedial works, service maintenance and equipment updating on the facility of a client.

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Денис Качкин

Адвокат
Управляющий партнер
Руководитель практики по инфраструктуре и ГЧП

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Денис Качкин

Адвокат
Управляющий партнер
Руководитель практики по инфраструктуре и ГЧП

Cкачать VCARD

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