In this article, we will examine some recent court proceedings that illustrate the approach of Russian courts to the issues of the retroactive effect of contracts, the impact of retroactivity on contractual agreements, and the time limit for filing relevant claims. Some treaties make this clearer than others. Many contracts define the “start date” as the “effective date” (not to be confused with the execution date). Others will even have an “as-of” clause, which even clarifies the possibility of backdating by stating: During the new trial, the court[2] stressed that the issue of retroactivity can only be settled with the issue of liability. In the addendum, the parties were able to foresee the negative consequences for the buyer resulting from the anticipation of deadlines. Therefore, the buyer should have expressly accepted the fact that the addendum changes the number of days late, thereby increasing the amount of penalties due. In the absence of such a specific agreement, sanctions could not be imposed retroactively. Finally, the Court of Cassation[3] confirmed such an approach. Thus, the FDIC and Weatherford could have made their transaction retroactive, but they did not document the agreement clearly enough to do so. The Court of Appeal then considered whether the retroactive effect of this transaction, assuming that the FDIC/Weatherford transaction was retroactive (which was not the case), had a legal impact on the transaction between FDIC and FH Partners. FH Partners was not in a position to rely on an authority “for the thesis that a retroactive effective date in a contract can be interpreted as having automatic retroactive effect on a separate contract”, which would probably have been fatal in its case. But the wording of the FDIC/FH Partners agreements further undermined FH Partners` arguments because the documents (1) stated that they could not be amended or repealed except in a letter signed by the parties, (2) did not expect the FDIC to do what it submitted to FH Partners after closing, (3) FDIC`s interest “on the closing date of the sale of the loan, `(4) transferred FDIC`s share of the loan `as is` (5) provided that FDIC `is not required to guarantee or maintain an absence of an intermediary assignment or an assignment to [FDIC] that is not included in the credit file` (6) provided for a process by which FH`s partners could require the FDIC to buy back a loan; if it was determined that the FDIC did not own it at the time of closing and (7) transferred the rights to the FDIC “at the time of closing”. Effectively backdating written agreements so that they are retroactively enforceable can be surprisingly complicated.

This is especially true in the context of a complex transaction involving multiple documents and if the retroactive date is several months in the past. The parties` intention that the transaction will take effect retroactively must be clear. The mere indication of a retroactive date of entry into force in the main agreement may not be sufficient. The Judicial College for Commercial Disputes of the Supreme Court of the Russian Federation in the decision of 29.10.2019 No. 305-ЭС19-11225 in Case No. А40-114941/2018 annulled the previous decisions. The parties stated that the addendum had retroactive effect and was valid during the period of validity of the agreement. However, the lower courts had not taken this into account. Since the addendum did not stipulate that the parties would allow the application of the sanction to the delay in its execution, the Supreme Court of the Russian Federation annulled the decisions on the sanction. In the context of legal proceedings, the parties concluded an addendum to a supply contract in which they agreed to anticipate payment deadlines. It was also clarified that the addendum had retroactive effects (it applied to contractual arrangements between the parties from the date of performance of the original contract).

Therefore, the supplier claimed the application of penalties for all previous deliveries already made (although these deliveries corresponded to the due dates specified in the original contract). Both the first instance and the Court of Appeal[1] upheld this appeal. Apart from these issues, it can be difficult to avoid the undesirable side effects of backdated contracts, especially if the presumed effective date of an agreement is several months before the date it was actually signed, as seen in FH Partners, LLC v. Complete Home Concepts, Inc. There is nothing inherently illegal or unethical about backdated contracts, although backdating can certainly be both unethical and illegal, depending on the situation. For those who have an hour to think about the problems, Jeffrey Kwall and Stuart Duhl wrote an excellent article on antidating, published in Business Lawyer in 2008. For a shorter article with some practical tips, see Antidating – it`s illegal, isn`t it? The law cannot apply retroactively if it infringes the contractual obligation or infringes acquired rights. Travelers Ins. Co.c.

Ohler, 119 Neb. 121, 227 N.W. 449 (1929). A criminal law is not retroactive in its application. Hoon State, 78 Neb. 618, 111 N.W. 462 (1907). Even if a transaction between the parties takes effect retroactively, this is unlikely to be the case if non-parties are involved. .