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ARCHIVE FOR 2017    RUSSIAN

Июнь 2017

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

L.Yu. Mikheeva Trusts and estates: what will change and why?
The paper makes a case for prompt changes in the current framework for the protection and administration of estates, which represents a slight improvement on the Soviet regulation of succession law. The author asserts that the formation of effective safeguards (creating a substitute testator mechanism) requires, in the first place, registration of the testator’s will. It is also explained why the new notarial code is equally important to the economy along with the recently amended succession law.
Keywords: succession law reform, succession estate administration, notarial reform, and the executor
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S.L. Budylin A deed with the deceased. Inheritance law reforms in Russia and internationally
The paper looks at the bill proposing substantive changes to the Russian inheritance law, pending the State Duma’s consideration. Many of its legal concepts have been adapted from the well-established practice of foreign jurisdictions. The author dwells on two specific concepts — joint will and contract of inheritance — through the comparative analysis of the bill and concludes that the proposed innovations in their present form can hardly accomplish intended objectives.
Keywords: inheritance law reform, joint will, contract of inheritance, trust, inheritance law in England and the United States

 

E.Yu. Petrov, I.G. Renz New developments in succession law in Russia
The paper provides a comparative overview and a concept analysis of relevant legislative proposals to increase the number of succession planning tools available in Russia by instituting inheritance agreements, joint wills, and private foundations. Some alternative approaches to making use of these tools in original jurisdictions are then described. It also discusses the need for a new balance of interests between the surviving spouse and the heirs, and suggests further improvements to succession law.
Keywords: succession law reform, inheritance agreement, joint will, private foundation, succession rights of the surviving spouse
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E.A. Ostanina Slayer rule: some questions
Unworthy heirs have no right to inherit. However, this rule has many nuances and details. Does motive matter? Are children of an unworthy heir entitled to inherit? Although these issues are already relevant in Russian litigation practice, the draft of the new law on inheritance does not mention unworthy heirs at all. The reason being that the regulation of unworthy heirs is either perfect in the legislation (which is doubtful) or poor in the doctrine. The author expresses her opinion on three issues. Firstly, it seems that the reason why unworthy heirs are removed from inheritance lies in a prohibition to benefit from an unlawful action. Secondly, the reasonableness of the general rule that the motive of the offense is not to be taken into account needs further discussion. Finally, recent cases show that courts do not allow any children of the heir, recognised as unworthy, to inherit. However, arguments can be made to oppose such practice and allow for exceptions.
Keywords: slayer rule, unworthy heirs, torts
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Discussion Board

A.V. Fedorov Corporate criminal liability
The paper summarises the public lecture delivered at the Law School of the Russian People’s Friendship University on 28 April 2017. The author gives a plausible basis for imposing criminal liability on offending companies. It is noted that corporate criminal liability exists in many countries, so Russian interests are placed at a disadvantage where national companies face criminal liability in foreign jurisdictions but domestic law authorises law enforcement charges against foreign companies strictly as administrative proceedings. Corporate criminal liability has relevance because of Russia’s membership of international organisations and participation in international conventions. In addition, arguments are put forward to show a lack of effectiveness of administrative sanctions currently imposed in Russia against companies committing offenses that constitute crime. A transition option is proposed to keep criminal liability for individuals alongside administrative sanctions for companies and to abandon various procedural liability models for connected offenses, i.e. commencing criminal proceedings in cases involving such offenses.
Keywords: crimes, administrative offenses, corporate criminal liability, corporate administrative sanctions
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Press Release

 

 

 

Theory and practice

G.V. Tsepov You are hit in your face, not in your passport, or: concepts of sham company, straw person and shadow director in Russian court practice
The paper examines Russian court practice in terms of sham companies, straw persons and shadow directors. The author comes to a conclusion that Russian courts, especially criminal ones, actively lift the corporate veil, imposing liability upon the shadow directors. This approach has a solid economic foundation. The value of civil property regulatory relations lies in the fact that they organise property turnover, enabling it to be efficiently distributed, and narrow the uncertainty of the future. Faking and sham relations do not perform these functions. On the contrary, since information is a limited resource, not providing the true information about a legal entity’s activities and its bodies increases transaction costs. On the basis of the research results, the author concludes that target criterion should be decisive to recognise a company as sham, and will criterion should be decisive to recognise a person as dummy or shadow director. It is also necessary to clarify and systematise the used terms based on supremacy of civil law.
Keywords: sham company, fly-by-night firms, straw person, shadow director, controlling person, lifting the corporate veil
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D.E. Ermolina, D.I. Khabarov, V.A. Perevalov Problems brought by a formal approach to copyright levies
Legislation on so-called copyright levies provides for a number of significant exceptions with respect to equipment and recorded media that are subject to the copyright levies. Particularly, the copyright levies are not imposed upon manufacturers and importers of professional equipment. However, there remains a lack of uniform court practice to determine the properties of professional equipment and its eligibility criteria. In April 2017, the Court for Intellectual Property Rights once again announced its opinion on this matter. No doubt that progress has been made in the approach and criteria described in the judgement. However, inconsistency in court approaches and insufficient elaboration of criteria as applied under current legislation suggest that such criteria should now be determined by the Supreme Court.
Keywords: IP protection, copyright, copyright levies
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E.V. Popov Principle of iura novit tribunus in international commercial and investment arbitration
The paper deals with the analysis of the circumstances under which the arbitrators who were appointed to hear the international commercial or investment arbitration case face the issue of determining the applicable law in the absence of a clear reference thereto in the agreement of the parties to the dispute or when the respective positions of the parties vis-à-vis the law to apply to the resolution of the dispute contradict each other. In the context of the procedure to resolve the dispute, this is being handled by reference to the principle known as iura novit tribunus (aka iura novit curia). Having reviewed a sizable number of arbitration rules and regulations, the author comes to conclusion that arbitrators are entitled to refer to the principle iura novit tribunus and, therefore, determine the applicable law themselves, without any additional evidence or arguments of the parties to the dispute. It is worth noting however that the application of iura novit tribunus by the arbitrators is not a mandatory requirement to use when resolving the dispute. The competence of the arbitral tribunal that relies on the principle iura novit tribunus is not an unlimited one and mainly depends on whether the principle ne ultra petita was breached and whether the partiers to the dispute were given an ample opportunity to use all their rights and remedies and rely on the due legal process in presenting their case. Arbitral tribunals therefore must in due course inform the parties to the dispute about the application of additional considerations re: the applicable law to ensure the validity and enforceability of the arbitral award.
Keywords: international investment disputes, international commercial arbitration, investment arbitration, iura novit tribunus, principles of arbitration
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К.А. Usacheva Calculating damages for breach of contract where restitution in kind is impossible
Where restitution in kind is not possible, restitution in value needs to be determined upon termination of the contract for a breach. The Plenary Resolution of the Supreme Arbitrazh Court of the Russian Federation No. 35 of 6 June 2014 “On Implications of Termination of Contract” along with subsequent court decisions suggest that the values agreed by the parties, such as contract price, should be used for calculating the damages. The same approach is envisaged in German positive law; but it is viewed more critically by comparative law. What are the pros and cons of this approach? What are other reference points for damage calculations in comparative law?
Keywords: termination of contract for breach, restitution, impossibility of restitution, damage calculations
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M.О. Dolova Civil procedure doctrine during early soviet period
The paper discovers how the Revolution of 1917 affected the development of civil procedure during the early Soviet period. It draws a conclusion about the procedural stagnation and the doctrinal crisis brought on by the combination of academic, political, economic, legal, and social factors.
Keywords: civil procedure doctrine, civil procedure, crisis in science, scientific revolution
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