ARCHIVE FOR 2015 RUSSIAN
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Апрель 2015
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Departmanental rulemaking in view of rights protection Judgment of the Constitutional Court of the Russian Federation of 31.03.2015 No. 6-П following the petition of “GAZPROM NEFT” (OJSC) has become one of the most discussed. Not only the assignment of normativity to official explanatory statements of ministries and agencies but also issues of efficient protection of rights of individuals affected by such statements have induced bitter disputes. Judges having dissents in the case gave their voices for challenging the official statements of such kind as provided for challenging non-regulatory acts whereby the rights of an applicant can be thoroughly protected with help of this mechanism.
Are you of the opinion that the legal protection of rights of citizens and organisations could be more efficient with the challenging of official statements as provided for challenging of regulatory acts? Which procedural mechanism of realisation of the Judgment of the Constitutional Court could be the most appropriate?
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Topic of the issue
R.S. Bevzenko. Topic of the issue: common problems of the real estate turnover in Russia Author undertakes a research on the general provision of
the Russian Civil Code on state registration of rights to
property, which is the basis of the modern real property
turnover in Russia, and addresses issues of its applicability
to other objects of civil rights. Special emphasis is laid
both on the principle of enlisting as one of the pillars of the
Russian system of property rights registration and on the
sheer novelty in this sphere of legislation — the note of
objection to the registered title. Possibilities of challenging
the registered title, peculiarities of challenging the actions
of registration officer as well as recovery of losses inflicted
by his actions are described.
Keywords:
real estate, state registration of rights, principle of enlisting
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E.A. Leontieva. Heritable building right vs tenancy Author analyses main elements of the heritable
building right, suggested by the Russian legislator as
a substitution of existing practice of tenancy as a legal
foundation for construction at a land plot belonging to
other persons. On the basis of application of foreign laws
and regulations the article provides an assessment of the
benefits arising from the right of superficies compared
to the right of tenancy. Author also explains reasons of
high efficiency of the institute of superficies as well as
discloses the ratio between the right of superficies and
the right to a building.
Keywords:
heritable building right, land plot belonging to other persons, property rights, tenancy, real estate, law of estate, civil legislation reform
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S.V. Savina. Turnover of “apartments” as residential premises: ways to modernise the legislation The article touches upon legal issues referring to real estate
facilities for temporary accomodation named “apartments”,
which are constructed by developers and bought
by individuals for lodging. Grounds for problems of legitimate
turnover of apartments as well as main approaches
for improvement of laws to solve the problem are also analysed
in the article.
Keywords:
real estate, apartments, residential premises, non-residential premises
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V.V. Sharapov. New ways of taking lands for public use in view of protecting the rights of out-of-the-register property owners We are used to the fact that property is an absolute right
and its protection is duly guaranteed by the Constitution
of the Russian Federation. Meanwhile, new rules of lands
acquisition for public use in Russia, having entered into force
on April 1, 2015, may provide conditions for violation of this
initial civil law provision. The author touches upon legal risks
that could be faced by owners and titleholders who have
registered their ownership before the introduction of the
Unified State Register of Property Rights and Transactions.
Keywords:
land plot, real estate, eminent domain, compulsory purchase, state needs, state registration of rights, register of property rights, guarantee of the owner’s rights
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GARANT
Theory and practice
G.V. Tsepov. Getting out of the methaphorical mist, or Liability of controlling person to creditors of a company The article is devoted to theoretical and practical issues
of veil piercing and enterprise liability. The author
concludes that limited liability principle is to be respected
and controlling shareholders are to be subsidiary liable
for the company’s debts only in case of their fault. To
support this thesis the author refers to the principle of
value maximisation of production and considers company
as a tool for decreasing uncertainty of the future.
Keywords:
limited liability, subsidiary liability, enterprise liability, controlling shareholder, piercing the corporate veil, entrepreneurial risk, creditor’s rights
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P.A. Windel. The meaning of the European Convention on Human Rights in terms of private law European Convention on Human Rights has deep meaning
both for public and national substantive and procedural law
of member states of the European Council. Jurisdiction of
member states is now defined in terms of the increasing
judicial significance of the European Court of Human Rights
decisions. This means that judges of member states, when
interpreting private and civil procedural law, are to apply
Convention, its additional protocols and ECHR practice as
an “interpretation tool”.
Keywords:
European Convention on Human Rights, European Court of Human Rights, Council of Europe, Private Law, Civil Procedural Law, case law, tools of interpretation
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S.V. Glandin. Is it open for Russian courts to grant interim remedy like the English world freezing injunction? One of ‘the law’s two nuclear weapons’ celebrates its 40th
anniversary this year. The USA declined to avail such
remedy to its plaintiffs. What about such civil law country
as Russia? Subject to the provisions of the Russian
legislation, they shall be exercisable by the Commercial
court being a jurisdiction to grant the same type of interim
remedies, as those recognised in England and Wales. In
the context of lacking precedent examples, author comes
to the conclusion that it is open for Russian applicants to
apply to the Commercial courts for an interim remedy like
the English WFI. However the Court cannot grant such a
remedy voluntary, therefore a path-breaking applicant is
wanted to first ask the Court to do so.
Keywords:
English law, interim remedy, injunction, world freezing order
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A.N. Zakharov. Issues of application of “other” grounds for corporate control The Civil Сode directly states that a portion of share capital
and an agreement can be a ground for identification of
corporate control (recognising two companies as parent
and subsidiary). Meanwhile the list of grounds for corporate
control is open-ended and any factual circumstances
might be determined as corporate control up to court’s
discretion. Author discusses such grounds of parentsubsidiary
relationships as authority to issue mandatory
requirements, indirect participation, negative control, and
shareholders’ instructions to members of board of directors
as well as other grounds developed in court practice. It is
emphasized that court’s discretion based on rules of law
and higher courts guidelines would provide for flexibility
which is essentially needed to fairly resolve disputes and
avoid too formal approach.
Keywords:
grounds for parent-subsidiary relationship, holding relationships, mandatory instructions, corporate control
Foreign experience
J. Gernandt, N. Elofsson. New initiatives to further increase the attractiveness of Stockholm as the seat of international arbitration The article describes how practitioners from around the
world and the SCC Arbitration Institute as well as Swedish
courts and the Swedish government collaborate and have
taken several initiatives to ensure that Stockholm will remain
a leading center for international dispute resolution.
Recent initiatives include the revision of the Swedish Arbitration
Act, the revision of the SCC Arbitration Rules, new
court guidelines for the challenge procedure, introduction
of emergency arbitrators, and increased publishing of legal
resources in foreign languages, including Russian. It
should also be emphasised that the parties themselves
can agree to tailor the proceeding in a matter that suits
their needs and the arbitral tribunal, as long as it is within
the fundamental rules and regulations of arbitration.
Keywords:
arbitration, international arbitration, the Arbitration Institute of the Stockholm Chamber of Commerce, the SCC Arbitration Rules
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