ARCHIVE FOR 2016 RUSSIAN
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Сентябрь 2016
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
B.R. Karabel’nikov Arbitration Reform in Russia and Questions Arising from It The Russian arbitration reform of 2015 is a radical
deviation from the international standards of legislation on
international commercial arbitration, it will cause numerous
problems for users of arbitration in Russia. Poor legal
technique of the Russian lawmakers raises many questions
which have no clear answers. Promised improvements of
law are in fact overridden by tightening of the state control.
Accordingly, those few international matters which were
still arbitrated in Russia prior to that reform have to be
moved for consideration of foreign arbitration institutions.
Keywords:
arbitrability, corporate disputes, “in-pocket” arbitration, the UNCITRAL Model Law, international commercial arbitration
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A.A. Gorlenko, Yu.N. Mullina Legal Regulation of Arbitration Agreements according to the New Legislation on Arbitration Proceedings in the Russian Federation The authors analyse the provisions of the law on arbitration
(arbitration proceedings) in the Russian Federation, that
has come into force on September 1, 2016, and compare
the new legal framework for the arbitration agreements
with the one that was effective before. The authors
research the new institute of direct (special) agreements
that can be concluded in regard of the number of issues of
the arbitration proceedings only by including such
condition into the arbitration agreement (or by concluding
them as a separate agreement). The paper also includes
the analysis of the new provisions of the procedural law
on the possibility to conclude the prorogation agreement
in regard of the annulment and enforcement of the arbitral
award.
Keywords:
arbitration agreements, arbitration clauses, direct (special) agreements, arbitration, arbitration proceedings, arbitration reform
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R.N. Butenko Adjudication as a Dispute Resolution Mechanism The paper is designated to adjudication as a dispute
resolution mechanism which is relatively new and
understudied, although widespread in the foreign dispute
resolution practice. The author compares and analyses
the history of development and the main characteristics
of statutory and contractual adjudication procedures.
The author also answers the question of whether or not
the unification of the said procedures under one dispute
resolution mechanism is justified and formulates a definition
of adjudication as a dispute resolution mechanism, and
those of statutory and contractual adjudication procedures.
Keywords:
adjudication, Dispute Boards, Dispute Adjudication Boards, alternative dispute resolution, ADR, construction disputes
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Press Release
Discussion Board
A.P. Sergeev The Right of Prior Use of Soviet Brands: Pro et Contra The paper deals with problems arising from the use
of Soviet brands, the rights to which are monopolised
by certain market players. The author critically assesses
doctrinal arguments against establishing the right of prior
use of these brands.
Keywords:
Soviet copyrights, Soviet brands, prior use, permitted use, unfair competition
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V.L. Volfson Post-SAC: the Freedom of Contract Doctrine in the Modern Court Practice in Russia The paper deals with the current issues of freedom of
contract, a fundamental private-law doctrine, which were
brought into focus by the Plenary Ruling of the Supreme
Arbitrazh Court No. 16 “On the Freedom of Contract and its
Limitations”. The author argues that the Supreme Arbitrazh
Court (SAC) view on the administration of this doctrine, as
presented in the Ruling, is poorly compatible with certain
basic concepts of private-law legislature and legal text
interpretation, as well as with the theory of separation of
powers. This will cause a traumatic effect on sustainability
of individual rights of a less powerful party, e.g. those of
the customer.
Keywords:
freedom of contract, principles of civil law, sustainability of individual rights, abuse of rights, principle of permissibility, optionality, interpretation of legal text, customer rights
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Theory and practice
V.V. Kilinkarov New Law on Public-Private Partnerships in Russia: History of Adoption and Application Prospects Federal law No. 224-FZ “On State-Private Partnership,
Municipal-Private Partnership in the Russian Federation…”
adopted on 13 July, 2015 became the second Russian law
on public-private partnerships. The author of this paper,
as one of the main authors of the Model law “On publicprivate
partnerships” for CIS member states, has partly
assisted the working group of the State Duma in drafting
the new Russian PPP law and now undertakes an analytic
review of the history of this law, reveals the key problems
of its developing, analyses the concept of the law, its
advantages and disadvantages, and makes his conclusions
with regard to the prospects of using this regulative act for
the development of the Russian infrastructure.
Keywords:
public-private partnership (PPP), state-private partnership (SPP), municipal-private partnership (MPP), concession agreement, PPP agreement, concession
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A.S. Vorozhevich Secondary Patents on Drugs: Is It Necessary to Restrict Their Granting? The paper deals with the practice of acquisition of secondary
patents on drugs. Such practices are bound with unfair
strategies of large pharma companies, which are targeted
for the prolongation of their command over the market of
a high-demand drug. The author assesses the practicability
of proposals to exclude secondary inventions from
the sphere of patent protection, indicating at the same time
the other legal arrangements, which can maintain generics’
production.
Keywords:
secondary patents, patent evergreening, pharmaceutical drugs, active ingredient, generic drugs
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A.V. Mil’kov On the Issue of Characteristics of Civil Liability The paper provides a critical analysis of the doctrinal
position, which states that the civil liability is a liability of
one subject of civil law to another, which bases only on
the violation of subjective civil rights and aims solely at
the restoration of a violated subjective right, whereas the
connection between the civil offence and public interest is
negated.
Keywords:
legal liability, civil liability, objective of civil liability, cause for civil liability, confiscatory sanctions, protection of civil rights
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E.N. Krylov Jury Trial in Post-Soviet Criminal Process: Variations of Development The paper deals with the issues of jury trial development
in the former states of the Soviet Union and recent reform
of jury trial in Russia. The author classifies the post-Soviet
states into three groups: these are the countries (1) with
the classical model of jury trial, (2) with the hybrid model
of jury trial, and (3) without jury trial. The author arrives
at the conclusion that Russia is the sole post-Soviet state
that adopted the classic model of jury trial. The role of jury
trial in criminal justice can not be overestimated, since jury
trial is applied to the minimum number of criminal cases.
Reform of jury trial in Russia is well-balanced and creates
the opportunity to expand the real citizen participation in
administration of justice at the expense of the institute of
lay assessors.
Keywords:
justice, citizen participation in administration of justice, jury trial, models of the jury, hybrid model of the jury, reform of jury trial, post-Soviet criminal justice, jury trial in post-Soviet states
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G.S. Vasiliev On the Way to Cyborgs: Russian Cloning Laws The author pays attention to the acute problem resulting
from the gaps in the current Russian legislation on genetic
engineering. The temporary moratorium on cloning along
with the absence of duly defined liability for its violation
provides sufficient conditions for illegal activities in this
sphere, and creates law-enforcement risks, which prevent
the development of socially useful therapeutic cloning for
medical purposes.
Keywords:
cloning, legal regulation of biotechnologies, transplantology, genetic engineering, patenting
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