Due care: a shift in the courts' approach

The scope of a counterparty check should depend on the nature and scale of the transaction: a standard "due care pack" is not enough.

New arguments from the courts*:

• a standard "due care pack" is not enough;
• the scope of a counterparty check should depend on the nature and scale of the transaction;
• for large and unusual transactions, it is important to document not only the counterparty's legal status but also the process by which it was selected and its ability to perform the contract.

What this means in practice

A formal counterparty checklist is not enough.

For large and unusual transactions, it is important to confirm:

• why this particular counterparty was chosen;
• whether it can actually perform the contract;
• whether it has the necessary resources and experience;
• who conducted the negotiations and how the terms were agreed;
• whether the terms of the transaction are in line with normal business practice.

*Resolution No. F08-3766/2026 of the Arbitrazh Court of the North Caucasus District dated 31 July 2026; Resolution No. F09-2587/25 of the Arbitrazh Court of the Urals District dated 7 October 2026