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UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
“the investigator’s decision [of 26 January 1999] did not leave [the Alcohol
Commission] any other option for its decision on the fate of the alcohol”.
109. The District Court established that Uniya was the lawful owner of
the alcohol, and set its price on the basis of the original contracts of
importation, at the level of USD 7.35 per bottle. The District Court also
found that the alcohol had undergone customs clearance, and that the
customs office did not dispute the price of the alcohol. Having examined the
primary documents, the District Court established that in toto Uniya had
been deprived of 120,317 litres of alcohol.
110. In addition, the District Court observed that pursuant to the contract
of sale of alcohol between Belcourt (the second applicant company) and
Uniya (the first applicant company) the latter was under the obligation to
pay the former a penalty equal to the amount of the underpayments, in the
event of non-payment for the alcohol sold. The District Court decided that
this penalty also constituted future losses for Uniya in connection with the
destruction of the alcohol.
111. Finally, in order to compensate for inflation losses, the District
Court decided to apply the United States dollar rate on the day of the
judgment. The final amount awarded to the first applicant company was
RUB 52,665,032.
(δ) Execution of the judgment of 27 January 2011 and liquidation of Uniya
112. On 3 March 2011 the tax authorities requested the administration of
the Unified State Register of Legal Entities to exclude Uniya from the
Register for failure to produce tax returns for the past twelve months.
According to the Government, information about that request and the
ensuing proceedings was public, and all interested persons were notified
through a publication in the State Registration Bulletin.
113. On 14 April 2011 the court issued a writ of execution in the above
amount in the name of Uniya.
114. It appears that above amount was never transferred to Uniya since
in the meantime, on 16 June 2011 at the request of the tax authorities Uniya
was placed in liquidation (for more details see paragraph 214 below).
Uniya’s shareholders requested reinstatement of the company in the State
register of legal persons, but this was refused by a decision of the
Bashkkortostan Commercial Court of 10 December 2012.
115. On 19 July 2011 Mr Golovkin requested the District Court to
replace the original writ of execution with a new one. He explained that on
the date it went into liquidation Uniya had transferred to him the right to
claim the award made on 27 January 2011 by the Baltiyskiy District Court.
He produced a copy of the agreement dated 19 July 2011. A month later
Mr Golovkin submitted an identical agreement dated 19 May 2011, with a
decision of the shareholders’ meeting approving that agreement.
UNIYA OOO AND BELCOURT TRADING COMPANY v. RUSSIA JUDGMENT
25
116. On 22 December 2011 the Moskovskiy District Court refused to
grant Mr Golovkin’s request. The court noted that the original court
judgment awarding pecuniary compensation was made in favour of Uniya.
Mr Golovkin explained that the date on the original agreement transferring
the rights to him and submitted by him to the court was wrong, and that the
agreement had in fact been concluded on 19 May 2011. The court did not
accept that argument, and found in essence that the agreement “of 19 May
2011” and the minutes of the shareholders’ meeting had been backdated. As
regards the agreement “of 19 July 2011”, it was void, since it had not been
approved by the shareholders, and because Uniya had been excluded from
the list of companies on 16 June 2011. The court also held that claims based
on unlawful acts on the part of a public authority were not transferable.
117. On an unspecified date Belcourt lodged an application with the
Moskovskiy District Court seeking a judgment award in favour of Uniya,
with reference to yet another cessation agreement between Uniya and
Belcourt dated 15 June 2011. The proceedings in this case, according to the
Government, are still pending.
C. The second consignment of alcohol (1,170,312 bottles)
118. Under an agreement dated 3 November 1997 Uniya was supposed
to act as an agent selling alcohol which belonged to Belcourt. The
ownership title was transferred to Uniya after the payment of the price of
the alcohol.
119. On 27 April 1998 Uniya and Belcourt signed an additional
agreement defining the conditions of sale of a second consignment of
alcohol. In that additional agreement the parties set the price of the alcohol
at USD 7.35 per bottle. Pursuant to that agreement, the alcohol would be
shipped to Uniya without any advance payment being made. Uniya was
required to pay for the alcohol within 180 days of the date of receipt. Point 9
of the contract provided for a penalty for failure by Uniya to pay for the
alcohol, in the amount of 0.15% of the outstanding amount per day of delay,
but not to exceed 100% of the price of the alcohol. Belcourt was defined as
“the seller” in that agreement, whereas Uniya was referred to as “the buyer”.
Under that second agreement Uniya obtained ownership of the whole
consignment of alcohol at the time it received it from Belcourt.
120. In May 1998 Belcourt imported into Russia the second
consignment of alcohol, consisting of sixty-two containers (hereinafter “the
second consignment”). The Government indicated in their observations that
these sixty-two containers had been “received in May 1998 by KF OOO
Uniya from Belcourt Trading Company”. That alcohol was imported into
Russia and submitted to the customs authorities with reference to the
“agency agreement” of 3 November 1997 between Belcourt and Uniya.