Viacheslav Bytsanov

27/09/2024

𝔹𝕌𝕊𝕀ℕ𝔼𝕊𝕊 𝕊𝕋𝕆ℝ𝕐 𝕆𝔽 𝕋ℍ𝔼 𝕎𝔼𝔼𝕂 ( #𝟚)
𝗧𝗵𝗲 𝗙𝗼𝘂𝗻𝗱𝗲𝗿 𝗗𝗶𝗱𝗻'𝘁 𝗖𝗼𝗻𝘁𝗿𝗶𝗯𝘂𝘁𝗲 𝗛𝗶𝘀 𝗦𝗵𝗮𝗿𝗲
(𝘢𝘭𝘴𝘰 𝘳𝘦𝘭𝘦𝘷𝘢𝘯𝘵 𝘧𝘰𝘳 𝘐𝘳𝘦𝘭𝘢𝘯𝘥)
Two Irishmen, together with two Austrians, decided to create an LTD (GmbH) in Austria because one of the Austrian participants had experience with the Austrian Business Service AWS program (support for manufacturing SMEs), while the Irishmen brought an interesting technology. The company was established quickly, as everyone was eager for success and paid little attention to important details. No one even considered what to do if one of the participants didn’t contribute their share! Oops...!
𝗧𝗵𝗲𝘆 𝘀𝗵𝗼𝘂𝗹𝗱 𝗵𝗮𝘃𝗲 𝗰𝗮𝗿𝗲𝗳𝘂𝗹𝗹𝘆 𝗿𝗲𝗮𝗱 𝘁𝗵𝗲 𝘀𝘁𝗮𝗻𝗱𝗮𝗿𝗱 𝗮𝗿𝘁𝗶𝗰𝗹𝗲𝘀 𝗼𝗳 𝗶𝗻𝗰𝗼𝗿𝗽𝗼𝗿𝗮𝘁𝗶𝗼𝗻 𝗮𝗻𝗱 𝘁𝗵𝗼𝘂𝗴𝗵𝘁 𝘁𝗵𝗿𝗼𝘂𝗴𝗵 𝗮𝗹𝗹 𝗽𝗼𝘀𝘀𝗶𝗯𝗹𝗲 𝘀𝗰𝗲𝗻𝗮𝗿𝗶𝗼𝘀, 𝗮𝘀𝗸𝗶𝗻𝗴 𝘁𝗵𝗲𝗺𝘀𝗲𝗹𝘃𝗲𝘀 𝘁𝗵𝗲 𝗺𝗮𝗶𝗻 𝗾𝘂𝗲𝘀𝘁𝗶𝗼𝗻: “𝗪𝗵𝗮𝘁 𝗶𝗳 𝗻𝗼𝘁?” 𝗧𝗵𝗲 𝗰𝗼𝗻𝘁𝗿𝗮𝗰𝘁 𝘀𝗵𝗼𝘂𝗹𝗱 𝗵𝗮𝘃𝗲 𝗰𝗹𝗲𝗮𝗿𝗹𝘆 𝘀𝘁𝗮𝘁𝗲𝗱 𝗱𝗲𝗮𝗱𝗹𝗶𝗻𝗲𝘀 𝗳𝗼𝗿 𝗰𝗼𝗻𝘁𝗿𝗶𝗯𝘂𝘁𝗶𝗼𝗻𝘀 𝗮𝗻𝗱 𝗽𝗲𝗻𝗮𝗹𝘁𝗶𝗲𝘀 𝗳𝗼𝗿 𝗳𝗮𝗶𝗹𝗶𝗻𝗴 𝘁𝗼 𝗺𝗲𝗲𝘁 𝘁𝗵𝗲𝘀𝗲 𝗼𝗯𝗹𝗶𝗴𝗮𝘁𝗶𝗼𝗻𝘀.
Lukas (the Austrian participant) had his assets in Commerzialbank Mattersburg, which, as it turned out later, had been hiding its losses. This led to the bank’s closure and serious problems for its depositors. As a result, Lukas couldn’t contribute his share to the company, but he wasn’t willing to give up his participation either! First, he blocked meetings, and then voting, constantly promising: “I’ll fix everything tomorrow.”
Liam (the Irish technologist), whom I occasionally helped as an advisor on international matters, held out for a long time, reluctant to start formal proceedings. Together with the others, they continuously tried to solve the problem through negotiations with Lukas, but without success. Finally, after several sleepless nights, Liam asked me for help and to take action.
𝗛𝗢𝗪 𝗪𝗘 𝗦𝗢𝗟𝗩𝗘𝗗 𝗧𝗛𝗘 𝗣𝗥𝗢𝗕𝗟𝗘𝗠:
1. We carefully studied the situation and found a suitable Austrian lawyer. The task was simple but urgent:
● To recover Lukas’ share through the court, as the Austrian GmbH Law (§ 64) provides such an opportunity.
● To file a petition in court for a temporary seizure of Lukas' assets (through an "Einstweilige Verfügung") without a prior hearing, since the GmbH was suffering from a lack of funds, and Lukas' assets could have been hidden or lost.
2. The lawyer did an excellent job, and we monitored the process closely, day by day, not letting him relax! Half of all lawyers (even the good ones) need professional oversight from the client.
3. As soon as the court seized Lukas' assets, we immediately "purchased" his future debt to the GmbH. In Austria, under the Civil Code (ABGB), it is possible to assign the right to claim future debt. This, of course, was not a purchase of the share, but it allowed the company to receive the necessary funds.
And how did it all end? Well, Lukas eventually paid off that debt. In the end, Lukas sold his share in the GmbH at a 40% discount. Bingo! Finally, everyone went their separate ways! By that time, we were no longer involved in the details of the deal — the Austrian lawyer easily handled all the necessary paperwork.
𝗧𝗜𝗣: Critically analyze important documents before problems arise. But if they do arise, be sure to find the right lawyer and properly oversee their work.

10/09/2024

𝕋𝕀ℙ 𝕆𝔽 𝕋ℍ𝔼 𝕎𝔼𝔼𝕂 ( #𝟙)
𝗛𝗼𝘄 𝘁𝗼 𝗙𝗶𝗻𝗱 𝗮 𝗖𝗼𝘂𝗻𝘁𝗿𝘆 𝗳𝗼𝗿 𝗘𝘅𝗽𝗼𝗿𝘁
(𝙨𝙩𝙧𝙖𝙩𝙚𝙜𝙞𝙚𝙨 𝙛𝙤𝙧 𝙛𝙞𝙣𝙙𝙞𝙣𝙜 𝙖 𝙗𝙪𝙮𝙚𝙧)
Dear members, I am starting to publish tips that I hope you will find useful.
When it comes to finding a buyer for your product, there are two main strategies to consider:
𝗕𝘂𝘆𝗲𝗿-𝗙𝗼𝗰𝘂𝘀𝗲𝗱 𝗔𝗽𝗽𝗿𝗼𝗮𝗰𝗵: With this strategy, you start by looking for clients without limiting yourself to a specific country. For example, you might offer your product on international B2B platforms and negotiate with any interested buyer. The advantage of this approach is that it allows you to reach a wide range of clients, increasing your chances of quick sales. However, the downside is that you’ll need to adapt to the different conditions and requirements of various countries, which can lead to additional challenges and costs.
𝗠𝗮𝗿𝗸𝗲𝘁-𝗙𝗶𝗿𝘀𝘁 𝗔𝗽𝗽𝗿𝗼𝗮𝗰𝗵: This strategy involves choosing a specific country first, studying its market, and then looking for clients within that country. For instance, you might analyze the market in Germany, understand the demand for your product, and then seek out German buyers. The advantage of this strategy is that it simplifies the export process since you can work with multiple buyers under similar conditions. The drawback is the need for preliminary research on the country, which might include costs for market research and travel.
In the end, if you're aiming for stability and want to minimize unexpected surprises, the Market-First Approach might be the better choice for you.
✉ 𝙁𝙤𝙧 𝙥𝙚𝙧𝙨𝙤𝙣𝙖𝙡𝙞𝙯𝙚𝙙 𝙖𝙙𝙫𝙞𝙘𝙚, 𝙛𝙚𝙚𝙡 𝙛𝙧𝙚𝙚 𝙩𝙤 𝘿𝙈 𝙢𝙚!

01/09/2024

https://www.irishlegal.com/articles/triona-cody-high-court-decision-on-no-fault-termination

HOW TO DISMISS A CONFLICTED (TOXIC) EMPLOYEE. Part 1

I recently came across an article about dismissal ‘on grounds of bad character’ in Irish legal practice. Without going into specific details, this situation prompted me to ask an important question: how do you properly dismiss a conflicted (toxic) employee? Such a problem exists everywhere and the approach to it should be structured and clear.

In the case mentioned, the company did not follow the dismissal procedures, which resulted in legal costs. In contrast, companies with well-defined Internal Ethical Rules feel more confident and avoid such risks. It is important that such rules are clearly stated in the employment contract and the employee is familiarised with them against signature.

Ready to discuss how to develop these rules and procedures?

Kane Tuohy employment lawyer Triona Cody examines the recent High Court decision in Philip Nolan and Science Foundation Ireland [2024] IEHC 368, which clarifies the law on “no fault” termination and the test for determining injunctive relief. On 27 May 2024, the board of Science Foundati

31/08/2024

https://lesen.lexisnexis.at/news/vorzeitige-aufloesung-des-bestandverhaeltnisses-nach-23-io-schad/rdw/aktuelles/2024/30/lnat_news_035694.html

TRICKS OF COMMERCIAL LEASES: A CAUTIONARY TALE (AUSTRIA)

Dear colleagues,
Here’s an interesting piece of news I came across while browsing legal updates. The High Court recently ruled that the statute of limitations for claiming damages due to early lease termination begins from the actual termination date, not from the expiration of a bank guarantee. Let me break down what happened and why it matters to you.

When signing a long-term lease, such as for a commercial space, tenants often provide the landlord with a deposit to cover potential losses in case of breaches, like non-payment or property damage. In this case, the tenant provided a bank guarantee instead of a deposit, intended to serve the same purpose. However, after the tenant prematurely terminated the lease, they stopped paying rent. For reasons unknown, the landlord didn’t use the bank guarantee to cover the losses. This could have happened for several reasons: the guarantee might not have covered all the losses, the landlord might have hoped that payments would resume, or there was simple negligence. Ultimately, the landlord found themselves in a situation where the tenant declared bankruptcy, the guarantee expired, and only then did the landlord decide to file a lawsuit for damages. The landlord claimed that early termination led to significant financial losses, including lost rent and expenses for reconfiguring the space for a new tenant.

THE CORE DISPUTE between the parties was over when the right to sue (i.e., the start of the statute of limitations) for damages arose: a) from the actual date of lease termination or b) from the expiration of the bank guarantee. This was a critical issue because AFTER THE THREE-YEAR STATUTE OF LIMITATIONS, THE COURT WILL NO LONGER ACCEPT THE CLAIM. The tenant argued that the clock started ticking from the termination date, meaning the landlord’s time to sue had expired. The landlord, on the other hand, claimed that the statute of limitations should start from the expiration of the bank guarantee, giving them more time to sue.

THE COURT RULED that the statute of limitations for claiming damages begins from the date of lease termination, not from the expiration of the bank guarantee. As a result, the court sided with the tenant, and the landlord lost the opportunity to recover damages.

TAKEAWAY FOR BUSINESS OWNERS
Stay vigilant! The moment you face a non-payment situation with a tenant or any other party, don’t delay in addressing the issue. Immediately contact your lawyer to clarify all deadlines and risks. Only then can you effectively plan your next steps and avoid unpleasant surprises related to missed deadlines for filing claims.

And one more thing: has anyone here ever missed a deadline for filing a lawsuit?

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30/08/2024

https://www.kostenlose-urteile.de/AG-Duesseldorf_37-C-28523_Bei-Unklarheit-ueber-Vereinbarung-einer-Betriebskostenpauschale-oder-vorauszahlung-gilt-Pauschale-als-vereinbart.news34256.htm?utm_source=recht-aktuell.de

Dear colleagues,
I came across an interesting court decision in the German legal world:
The court ruled that in the case of ambiguity in a lease agreement, it is assumed that a fixed payment for operating costs (pauschale) was agreed upon, rather than advance payments.

Operating costs (Betriebskosten) typically include payments for utilities such as electricity, heating, water, and maintenance of the building, including cleaning, repairs, and upkeep of common areas. These costs can be agreed upon in the contract as a fixed amount (pauschale), which does not change based on actual expenses, or as advance payments, which are later adjusted based on actual costs.

What happened in this case:
The lease agreement did not clearly specify how the operating costs should be paid. The contract mentioned a base rent of 640 euros, along with a line stating "plus additional costs incl.", but without specifying the exact amount. Another line indicated an "advance payment for heating" of 150 euros.

The landlord filed a lawsuit, claiming that the tenant should pay all operating costs as advance payments. However, the Düsseldorf court ruled that if the lease agreement does not clearly state how operating costs should be paid, it is assumed that the parties agreed on a fixed payment (pauschale). But since the fixed amount was not specified in the contract, it is likely that the landlord will not receive additional compensation for operating costs.

Recommendation: Be cautious when signing a lease agreement and ensure that all terms related to the payment of operating costs are clearly outlined to avoid such situations!

Geht aus einer Formulierung in den AGB des Vermieters nicht deutlich hervor, ob Betriebskosten als Pauschale oder Vorauszahlung vereinbart sind, gehen die Zweifel gemäß § 305 c Abs. 2 BGB zu Lasten des Vermieters, so dass von einer Pauschale auszugehen ist. Dies hat das Amtsge...

13/08/2024

https://www.irishlegal.com/articles/eu-launches-consultation-on-competition-law-guidelines
Dear colleagues, Here’s an interesting news I came across while browsing Irish news, but it concerns all EU countries. The European Commission has launched public consultations on new competition law guidelines addressing the abuse of dominant market positions. Let me remind you what this involves.

PREDATORY PRICING is when a dominant company deliberately lowers prices below cost to drive competitors out of the market. For example, a large company might sell products at a loss so smaller competitors can’t compete and are forced to exit the market. Once competitors leave, the monopolist raises prices.

MARGIN SQUEEZE occurs when a dominant company artificially reduces the difference between purchase and sale prices, forcing competitors to operate on the edge of profitability. For instance, a large supplier might reduce margins on a popular product, forcing small retailers to operate without profit or leave the market.

EXCLUSIVE DEALS are agreements where a supplier agrees to sell its goods or services to only one buyer, prohibiting cooperation with others. Imagine a large manufacturer signing an exclusive supply deal with a store, excluding competitors from accessing that product. This not only limits opportunities for other entrepreneurs but also narrows consumer choice.

REFUSAL TO SUPPLY is when a dominant company refuses to supply its goods or services to certain customers or regions to control the market. For example, a large distributor might deny supply to a small retailer, leaving them without products and unable to compete. This leads to monopolies and reduced product availability for consumers.

Has anyone encountered this?

The European Commission has launched a public consultation on new draft guidelines on exclusionary abuses of dominance, including predatory pricing, margin squeeze, exclusive dealing and refusal to supply. Such behaviour is banned under Article 102 of the Treaty on the Functioning of the European Un