Over the past two years, the number of arbitration disputes on the recovery of unjust enrichment from foreign IT-companies has increased significantly. For the period from 2022 to 2023, according to the Arbitration Case File, dozens of claims were filed by Russian legal entities against the largest foreign software manufacturers: IBM Eastern Europe/Asia LLC, Dell LLC, Hewlett Packard Enterprise LLC, and HP Inc LLC.
In the vast majority of cases, the reason for applying to the court was the IT-companies' failure to fulfill their obligations under agreements on technical support services due to the suspension or termination of their activities in the territory of the Russian Federation.
According to Vedomosti, the total amount of satisfied claims for recovery of unjust enrichment against foreign IT companies exceeds 4.7 billion rubles.
Dozens of lawsuits were filed against Microsoft Rus LLC: Severstal PJSC, Aeroflot-Russian Airlines PJSC, Alrosa PJSC, Megafon PJSC, VTB Bank PJSC and other major Russian companies filed lawsuits due to unmotivated termination of obligations under technical support contracts by Microsoft Rus LLC while the services under these contracts had been paid for in advance by the plaintiffs.
The burden of proof in the considered disputes was distributed similarly to other cases on the recovery of unjust enrichment1. The courts, satisfying the filed claims, paid attention to the following facts:
-
prepayment execution;
-
failure of the defendant to fulfill its obligations under the contract;
-
lack of evidence confirming the provision of services by the defendant or the return by the defendant of the prepayment received.
Within this category of disputes, case No. A40-295093/2022 on the recovery of unjust enrichment in the amount of 10.9 million rubles from LLC "Eichpi INC" in favor of LLC "Complit" is particularly interesting. Three court instances that satisfied the filed claims pointed out, among other things, the “sanctions” aspect:
-
the founder of the defendant is a foreign company registered and operating in an “unfriendly” state;
-
the defendant ceased to fulfill its obligations for political reasons.
Thus, the courts are inclined to satisfy in full the claims for recovery of unjust enrichment from IT-companies that left Russian market. The sanctions aspect may be an important circumstance affecting the outcome of such cases.
We assume that in the near future the trend will remain unchanged and the number of disputes in this category will increase.
1 Review of judicial practice of the Supreme Court of the Russian Federation No. 2 (2019), approved by the Presidium of the Supreme Court of the Russian Federation on 17.07.2019.