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ARCHIVE FOR 2014    RUSSIAN

Март 2014

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

A.V. Turbanov It is not possible for the laws, like the Law on rehabilitation, to be temporary in nature
Alexander Vladimirovich Turbanov, Professor of the Russian Presidential Academy of National Economy and Public Administration, Chairman of the Committee of the Russian Law Society for the legislation on financial markets, replies to the questions by Yan Piskunov, chief editor of the “ZAKON” journal
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The Event. Comments of the Experts

CFC Rules in Russia
Russia can make a major step towards the anti-offshore regulation: the Ministry of Finance of the Russian Federation issued for the public discussion a draft law providing taxation of income of the controlled foreign companies, or the so-called CFC rules.
We asked experts to assess the effectiveness of the measures offered by the Russian Ministry of Finance in terms of the main aims of the draft law – fighting the withdrawal of assets in low-tax jurisdictions, as well as legal consequences of their introduction in Russia. Are they similar to the mechanisms used abroad?
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Topic of the issue

Ye.S. Pirogova, A.Ya. Kurbatov Insolvency (bankruptcy) of credit institutions: features and background
The article describes the background and conceptual features of insolvency (bankruptcy) of credit institutions pre-determining specific nature of the legal regulation of related relations and discusses the specific features of the bankruptcy proceedings in respect of credit institutions, proceedings on their insolvency (bankruptcy) and challenging transactions of credit institutions in insolvency (bankruptcy).
Keywords: insolvency, bankruptcy, credit institutions, banks
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K.B. Korayev Performance of the obligations of the credit institution by its founders or third parties in the bankruptcy proceedings
The article examines legal regulation of the performance of obligations of the credit institution by third parties in the bankruptcy proceedings. It concludes that this measure is aimed at restoring the debtor’s solvency, despite the fact that the bankruptcy proceedings are liquidation bankruptcy. The author draws attention to the shortcomings of the legal regulation of relations studied and makes offers to improve legislation on bankruptcy.
Keywords: bankruptcy, debtor, insolvency, performance of obligations by a third party
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S.V. Tarnopolskaya Challenging transactions of credit institutions made on the threshold of bankruptcy: challenges and prospects
It has been 4.5 years since the entry into force of Chapter III.1 of the new edition of the Federal Law No. 127-FZ “On Insolvency (Bankruptcy)”, dd. October 26, 2002, dedicated to the issues of invalidity of transactions of the pre-bankruptcy period. During this period, the jurisprudence was formed to apply new provisions of the Law, significantly adjusted by the Supreme Arbitration Court of the Russian Federation during 2013. This article attempts to answer the questions about whether the current legislation takes into account specific transactions made by the banks shortly before the revocation of the license, whether approaches to invalidity of such transactions developed by the jurisprudence are justified, whether the lenders of the insolvent bank can replenish the bankrupt estate by challenging transactions of the banks of the pre-bankruptcy period.
Keywords: insolvency, bankruptcy, invalidity of transactions, banks
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P.V. Kochergin Certain aspects of challenging non-cash payments aimed at repaying the debt under the loan agreement as a transaction with the preference in case of bankruptcy of the credit institution
The article is dedicated to the issues that arise when considering applications for challenging transactions of the debtor’s clients – the credit institution for repaying the credit debt. Based on the jurisprudence analysis, the author covers the issues of application of such objections to the official receiver’s declaration as maintenance of the normal course of business for making non-cash payments, making transactions by the lender instead of the debtor (bank), performance of an equivalent counter security, etc. The article also reveals significant specific challenging of non-cash payments and offers ways to improve consideration of this category of disputes.
Keywords: insolvency, bankruptcy, credit institution, bank, non-cash payment, transaction with the preference, invalidity of transactions, setoff
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L.Ye. Semikova, R.S. Malovitskiy If the bank was suddenly...
Over the past 20 years, the business faced aggravation of the problem of bank bankruptcies several times. After the first wave of bankruptcies in 1998, the legal regulation of insolvency of credit institutions became much more detailed, clear and consistent, and the consequences and possible risks of the bankruptcy of a servicing bank – more understandable, predictable and manageable. In connection with the expectations of a large-scale “cleaning” among credit institutions with the revocation of licenses from financially unstable banks, the authors consider it relevant to highlight critical issues that arise in practice in such a situation and to give general recommendations for the protection against the risk of the bank bankruptcy.
Keywords: insolvency, bankruptcy, credit institutions, banks, revocation of the license, setoff.
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D.Ye. Kalitov State participation in the prevention of bank bankruptcy in the UK
The article reviews the role of the state in preventing bank bankruptcies during the periods of banking crises in the UK since the second half of the XVII century till present. It examines the measures taken by the state in order to prevent bank bankruptcies.
Keywords: banking crises, banking system, bank bankruptcy, prevention of the bank bankruptcy.
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Discussion Board

V.M. Sherstyuk Reorganisation of the judicial system: and what’s next?
The author examines two main options for the further development of the Russian judicial system, involving creation of a unified and coherent system of courts or separation from its structure of specialised courts for business disputes. After consideration of the advantages and disadvantages of both options, the author concludes that the second option is the most acceptable in the circumstances.
Keywords: judicial system, judiciary, courts of general jurisdiction, commercial courts.
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O.V. Isayenkova In continuation of the discussion on the reorganisation of the judicial system
In continuation of the discussion initiated by Professor V.M. Sherstyuk in his article “Reorganisation of the judicial system: and what’s next?” the author focuses on the issue of accessibility of the main goal of the reform – jurisprudence uniformity. These arguments lead to the conclusion that development of the judicial system according to the second of the options, with the maintenance of specialised commercial courts, will be the most optimal in terms of this goal.
Keywords: judicial system, the Supreme Commercial Court , the Supreme Court, association of courts, jurisprudence uniformity.
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V.V. Yarkov Association of superior courts: expectations and consequences
In the debate about the future of the Russian judicial system, the author draws attention to such issues, as the possibility of unification of civil proceedings, search for the optimal model of the organization of courts, as well as legal ways to achieve the main goal of the judicial reform – jurisprudence uniformity.
Keywords: judicial system, association of courts, courts of general jurisdiction, arbitration courts, the Supreme Court of the Russian Federation, civil proceedings
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Ye. A. Borisova Optimising organisation of courts in the light of the reorganisation of the judicial system of the Russian Federation
The article discusses options for organising courts during the reorganisation of the judicial system of the Russian Federation.
Keywords: judiciary, judicial system, court of first instance, appeal, cassation, supervision
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Theory and practice

A.N. Varlamova, V.A. Krasnova Legal problems of fighting manipulation of prices on the electricity market
Among all the markets that are subject to antitrust regulation, electricity market is one of the most specific. Its features pre-determine specific instruments of the legal regulation, one of which is the subject of this article. Besides the description of practical problems arising from the application of the ban to manipulate prices, the authors draw attention to a serious systemic problem associated with the lack of attention of the Russian Federal Antimonopoly Service to the use of mechanisms to support and develop the competitive environment on the said market.
Keywords: manipulation of prices, pricing, electricity market, abuse of the dominant position, protection of competition, antitrust regulation
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K.V. Chichkanova, T.R. Suleymanov Public-private partnerships in Russia and the CIS: past, present, future
Despite the obvious relevance of the use of public-private partnership in the implementation of social projects under budget constraints, as well as numerous references to the need to use them by the authorities, we can hardly say that the practice of using these mechanisms in the CIS is stable and widespread. The article examines the state of the legal framework of public-private partnership in Russia and the CIS, considers the reasons of low investment attractiveness of such projects for the private sector and financing organisations, as well as determines the range of possible ways to improve the legislation on public-private partnership.
Keywords: public-private partnership, concession, concession agreements, investments, investment protection, model law on PPP
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A.V. Yudin Procedural consequences of the transfer of the rights to disputed property during the civil proceedings by the commercial court or the court of general jurisdiction
In jurisprudence it is not uncommon for the defendant during the pendency of the case to make factual and legal actions aimed at the transfer of the rights to disputed property to others, making it difficult or impossible to meet the claims. It usually happens when the potential of interim measures does not work, for whatever reason. Such situations give rise to a number of procedural issues discussed in this article
Keywords: alienation of disputed property, interim measures, change of claims, attracting new entrants to the case, fraudulent transaction, picking up evidence

 

I.N. Kashkarova On the possibility of making alternative (optional) claims in adversarial proceedings
This article examines the value of the interest protected by the plaintiff and the way to protect the violated right to personalise the claim. The author justifies the inadmissibility of re-characterising claims by the court under the adversarial process and the need to provide the plaintiff with the possibility of making alternative and (or) optional claims
Keywords: interest, personalisation of the claim, method of protecting the violated right, alternative claims
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V.G. Borodkin Corporate contract in the period of reforming the Civil Code of the Russian Federation
The article examines the feasibility and the practical need for the Russian civil law in the corporate contract. The author performs research of the legal nature of the corporate contract, taking into account national and international experience, as well as attempts to define its place in the contract law, viewing it through the lens of freedom of contract and mandatory restrictions.
Keywords: corporate agreement, shareholders’ agreement, principle of the freedom of contract
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D.R. Safiullina Inter-branch relations of the contract law: forms and uses
In this article the author examines forms and uses of inter-branch relations of the contract law: as part of similar relations of the civil law, on the one hand, and as a separate element of the machinery of the law – on the other.
Keywords: inter-branch relations, contract law
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