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ARCHIVE FOR 2017    RUSSIAN

Сентябрь 2017

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

M.L. Galperin Arbitration Results
This paper addresses the legal community’s concerns about the future of arbitration reform, outlines its prospects, and comments on the first results. Even though arbitration may not be used at mass scale in Russia, the author stresses the importance of achieving the main goal of the reform, i.e. to restore confidence in arbitration, and explains the benefits of arbitration reform.
Keywords: arbitration, arbitration court, legal reform, recognition and enforcement of arbitral awards, arbitrability

 

G.V. Sevastyanov Theory of Private Procedural Law vs Judicialisation and Substantivation of Arbitration
The theory of private procedural law presents a legal challenge to the most widespread views on the legal nature of arbitration assuming that an effective reform of arbitration legislation along with a pro-arbitration position and a common doctrine can only be developed from the principle that arbitration is a procedural institution of civil society self-regulation based on natural law and discretionary nature, where any deviation from its unique and self-sufficient legal context would significantly reduce the social value of arbitration and undermine public confidence in arbitration as an arm of Alternative Dispute Resolution. This legal paradigm looks at the key results of the Russian arbitration reform between 2015 and 2017 as well as at the mainstream trends of globalisation that effectively reduce access to arbitration.
Keywords: private procedural law, arbitration reform, arbitration, arbitration proceeding, international commercial arbitration, arbitration agreement
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O.Yu. Skvortsov A Conservative Model for Arbitration
The author explores the causes and potential consequences of arbitration reform outlining its five main areas as indications of paternalism in the public policy, and concludes that the conservative model for arbitration appears to a logical and reasonable outcome of the reform.
Keywords: conservative model for arbitration, paternalism in arbitration policy, arbitration reform
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S.A. Kurochkin Arbitration Reform in Russia: Basic Tools for Evaluating the Effectiveness of New Legislation
September 1, 2016 was the date when the comprehensive Russian Arbitration Reform started. During its preparation the legislator modernised arbitration laws, and actually all spheres of arbitration were upgraded. The leading achievements of both Russian and foreign jurisprudence were used. The strong efforts by prominent experts to enhance the effectiveness of arbitration ensured the new high efficiency level of national arbitral legislation, which became the focus of the present analysis based on the principles of law and economics.
Keywords: arbitration, arbitration reform, law and economics, costs
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A.A. Gorlenko, E.S. Burova Arbitration in Russia. New Era and New Challenges
Now that almost one year has passed since the new Russian arbitration legislation entered into force, it is quite timely to discuss new challenges in front of the Russian arbitration community to advance professional arbitration in the country. The paper focuses on potential directions for further improvements in arbitration in Russia, from the perspectives of its popularisation, arbitration-friendly position of state courts and legislative efforts. The authors suggest that the following issues require consistency and clarification in the court practice: public policy interpretation as a ground for annulment and refusal to enforce arbitral awards; arbitrability of public procurement disputes; seat and place of arbitration. The authors also point out that there is an urgent need to enact special regulation for third-party funding and international investment arbitration.
Keywords: arbitration, arbitration reform, legal education, public policy, arbitrability, seat of arbitration, assistance and control of state courts, third-party funding, Singapore, Hong Kong, investment arbitration
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E.V. Popov Challenges of Digital and IT Era and Arbitration Reform in Russia
The paper focuses on the analysis of consequences of the rapid development of information and digital technologies in the settlement of disputes through international arbitration. Contemporary information technology tools are being examined against the challenges facing participants in arbitration proceeding in the course of the ongoing arbitration reform in Russia. Special emphasis is on the analysis of the principle of confidentiality of arbitration in the era of rapidly developing information and digital technologies along with the types of threats in cybersecurity, information processing and data protection areas. The paper examines the types of information and threats that the parties to the arbitral disputes face. In addition, it discusses the issues of confidentiality obligations and the arbitrators’ duties such as ensuring the impartiality, legitimacy and integrity of the arbitral process. In its final part, it provides practical recommendations for the steps to minimise the consequences of cyberattacks. The importance of continuous professional development in the use of information technologies by arbitrators during the dispute resolution process is being evaluated from the point of view of prevention and minimisation of the consequences of cyberattacks and cyber-intrusion.
Keywords: arbitration reform, cybersecurity, confidentiality, principles of international dispute settlement, duties of arbitrator to maintain the information security, international commercial arbitration, international investment arbitration
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Discussion Board

Yu.E. Monastyrsky Nature of Damage Claims
The author continues to investigate the legal nature of damages. The reasons for inadequacy of Russian legislation on corporate relations were discussed in the previous article. Now, the emphasis is on a more fundamental problem — i.e. the reasons for a total misunderstanding of the legal nature of damages claims — that drastically reduces the scope of application of this civil remedy in Russian courts.
Keywords: damages, civil liability, compensation, lost profits

 

Press Release

 

Theory and practice

I.V. Reshetnikova The Presumption of Good Faith in Commercial Litigation
The author proves the existence of the presumption of good faith in the commercial process and procedures, discovers the content of the presumption and its influence on the burden of proof. Finally, she considers the concept of good faith as a principle of law.
Keywords: the presumption of good faith, commercial procedure law, burden of proof, court practice, principle of law
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M.B. Napso Modern and Classical Understanding of the Legal Essence of Charges
The paper looks at the consequences of the official revision of the charge definition in view of the newly introduced retail charge. The legal design of this concept has lost its relative symmetry and started to resemble the tax. Giving tax attributes to the charge represents a latent strengthening of the taxation which misleads the payer about the true purposes of charge collection.
Keywords: essence of charge, difference between tax and charge, charge and tax purposes, charges and nontaxes
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E.A. Evdokimova Correlation between Pledger’s Rights and Preferential Unsecured Creditors’ Rights
Secured creditor has priority over unsecured creditors as to the pledger. Shall this priority be absolute and cover also normally privileged creditors such as creditors with tort claims, alimony claims, and employment claims? Russian law defines different rules applicable in consolidated enforcement proceedings, bankruptcy and liquidation proceedings. Do these rules need further improvement? The author considers the issue from the constitutional viewpoint in particular, and analyses approaches across other jurisdictions.
Keywords: pledge, pledger’s rights, preferential unsecured creditors
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N.B. Kashnikov Joint and Separate Suretyship. Joint Security
The court practice in Russia has developed two types of plural sureties — joint suretyship and separate suretyship. A surety who has satisfied a creditor has recourse against sureties that secured the obligation jointly. In this case debt is divided between sureties in equal parts (para. 2 of Art. 363 of the Russian Civil Code). On the contrary, if sureties acted separately (independently of each other) then a surety is subrogated to all creditor`s rights and can seek satisfaction from any security debtor likewise a creditor. But strictly speaking, the Russian Civil Code mentions only joint suretyship (para. 3 of Art. 363 of the Russian Civil Code) and does not say anything about sureties that act separately. It allows one to interpret the Russian Civil Code in such a way that all the sureties should be considered joint and must share the burden of debt under para. 2 of Art. 325 of the Russian Civil Code. In view of recent amendments of para. 3 of Art. 363 of the Russian Civil Code a surety shall have a right of recourse not only to other sureties but to all kinds of security providers, e.g. to pledger. Such an approach would be consistent with the principle of an internal recourse between several security providers, typically following the idea of sharing the burden between all providers of security for the same obligation or the same security purpose, which is adopted in most European countries.
Keywords: co-suretyship, subrogation, recourse, joint security
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K.V. Ivasenko Extension of Powers of the Russian Supreme Court Chief Justice in Supervisory Review Proceedings: Regulatory Perspectives
The paper provides a theoretical analysis of the draft law provisions that empower the Chief Justice of the Russian Federation Supreme Court and the Chief Justice deputy to discretionary supervisory review in criminal proceedings in the absence of any complaints or petitions from the parties. The author systematically analyses the main arguments advanced by the drafters in support of the proposed amendments pointing to their drawbacks and possible negative effects from the enactment.
Keywords: amendments to the Criminal Procedure Code, supervisory authority, “commencement of complaint”, person entitled to appeal, submission of Russia’s Supreme Court Chief Justice
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Foreign experience

J.R. Feris, G.K. Zukova ICC Expedited Arbitration Rules: New Aspects and Application Prospects
The new ICC Arbitration Rules which came into force as of 1 March 2017, in contrast to the 2012 version, offer expedited proceedings for arbitrations with an amount in dispute up to USD 2 million. The authors explain the relevant practice directions of the ICC Court and its Secretariat, including consistent application of the existing rules and new provisons on the amount in dispute and the composition of an arbitral tribunal.
Keywords: arbitration, ICC Arbitration Rules, ICC International Court of Arbitration, expedited proceedings, arbitration agreement, opt-in, opt-out, arbitral tribunal, sole arbitrator, costs of arbitration, award
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