Does the Yukos case precedent jeopardize freedom of businesses to form prices?

Today’s business daily Vedomosti.ru comments on the dictum accompanying the Moscow municipal court’s December dismissal of the petition by Mikhail Khodorokovsky and Platon Lebedev to overturn the first-instance ruling on the second “Yukos” case. Mikhail Khodorkovsky (former Chairman of the Yukos oil company) and Platon Lebedev (former CEO of the Menatep Group, a holding company that had a controlling interest in Yukos) were charged of defrauding Yukos’ daughter companies involved in oil extraction. Russian State Attorney claimed that the price at which Yukos purchased oil from its daughter companies was below the prevailing market price. The defendants argued that the daughter companies were not defrauded, as the price at which Yukos purchased their oil was higher than the cost of extraction. In 2010, the Khamovniki municipal court in Moscow found Khodorkovsky and Lebedev guilty of stealing 200 million tons of oil and money laundering and sentenced them to 14 years in prison.

Commentators are concerned with the Moscow municipal court’s interpretation of the term “defrauding” (to be more precise, the term in question is “acquiring without compensation”), as it found that any transaction that doesn’t involve “adequate” compensation (market price) should be considered as theft. The article goes on to quote an excerpt from the dictum: “The analysis of the mechanism developed by the defendants to determine prices for oil extracted by Samaraneftegaz Inc., Yuganskneftegaz Inc., Tomskneft-VNK Inc. (Yukos’ daughter companies)… demonstrates that, as a rule, the prices were lower than the real market prices… and that the sums paid (by Yukos)… barely compensated the costs of extraction.”

Legal experts stated that the Supreme Court of the Soviet Union considered unequal exchange whereby the value of one exchanged item is lower than the other as theft; however, such interpretation in a free market environment could threaten any and all commercial activity in the country. Some experts see this as a new tendency, as the recent case against the state-owned defense company “Oboronservis” is based on the presumption that the management sold company’s assets below the market price. Former defense attorney for Platon Lebedev criticized the Moscow municipal court for disregarding the Russian Constitutional Court’s interpretation, stating that the price in commercial transactions is determined by consenting parties alone. One party could be accused of defrauding another only if it employed deliberate deceit or misrepresentation of essential facts. One of the commentators is concerned that the current interpretation of the Moscow municipal court could introduce the term “adequate price” as a measure for compensation and allow the law enforcement institutions to decide what it should be.

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