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ARCHIVE FOR 2017    RUSSIAN

Октябрь 2017

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

K. Bechet-Golovko State liability in tort: public or private law?
This paper analyses the main aspects of tort liability under French public law, its historical development and diversity of its forms. It looks at the State Council’s recognition of the general legal principle of the state liability in tort under public law, at the evolving liability for negligence and the emerging strict liability based on the risk theory and the principle of equal distribution among citizens of financial obligations under public law and in the form of liability arising from administrative decisions for the consequences of adopting statutes, signing international treaties and agreements, and inflicting damage during amenity upgrades.
Keywords: state, tort liability, strict liability, French law
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T.K. Andreeva The scope of government responsibility for judgment execution
This paper discusses government tort liability in the execution of judgments in the context of the Convention for the Protection of Human Rights and Fundamental Freedoms and the relevant case-law of the European Court of Human Rights. It starts with the idea of applying the general standards and requirements of Article 6 “Right to a fair trial” to the execution of judgments, including the state obligation to make it effective. The scope and grounds of government liability are examined as compensation for damage resulting from the non-execution of judgments. Some trends are outlined in the domestic court approaches to compensation from public funds and satisfaction to the injured party for non-execution.
Keywords: execution of judgments, state liability in enforcement proceedings, compensation from public funds, scope of liability
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M.A. Erokhova Conditions of liability of the treasury for wrongful acts by public bodies. Problems of interpretation by the Russian Federation supreme court of the civil code provisions in 2017
The author exemplifies the interpretation of conditions of liability of the Treasury with the RF Supreme Court cases in the year 2017. The main issue is establishing harm and whether it involves implementation of the right being hampered the wrongful acts of public bodies. In 2017, different Supreme Court panels has taken opposing positions on the issue, thereby leading to legal debates. Causation and wrongful acts by public authorities are also analysed. While causation is a case-specific question that cannot be answered in an abstract manner; a wrongful act should be assessed in terms of its outcome rather than formal compliance with the rule of law by a government official. This paper is intended for practising lawyers as it reveals trends in judgment practice.
Keywords: liability of Treasury, state liability in tort
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A.A. Yagelnitskiy Deviation from the principle of full reparation for damage caused by the state
Liability of the State is a relatively new chapter in the doctrine of tortious liability. In the 19th and 20th centuries, European jurisprudence abandoned the principle of sovereign immunity “the king can do no wrong” and supported compensation for individuals suffering damage as a result of wrongful acts by public authorities. Though the general rule of State liability has prevailed, different legal systems demonstrate different approaches to the scope of compensation for harm sustained and to the range of damages recoverable from the State. The article describes some of the techniques that have been used by judges to substantially deform the principle of full reparation for damage, which represents a fundamental principle of liability under private law and should certainly apply to public authority liability in tort.
Keywords: state liability in tort, losses, bases of civil liability, contributory negligence
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A.K. Gubaeva Compensation for unlawful government acts and trajectories of tort law content
This article describes the impact of modern justice on the development of a civil-law mechanism of individual rights protection against unlawful acts committed by public, local authorities and their officials. The author notes a positive trend emerging in judicial approaches that pursue a balance between public and private interests of the parties involved in legal relations in civil law. Lack of legislative developments in the system of liability for harm caused by official acts does not preclude any substantive change in the compensation scheme. Hence, there is a gradual departure from the principle of guilt, a legally appropriate (benefiting the victim) approach to the relationship between the notion of ‘lawful’ and the notion of ‘wrongful’ when categorising complex cases involving the damage or harm caused by an unlawful official act (omission).
Keywords: government liability in tort, public tort, unlawful acts committed by authorities, unlawful acts committed by officials, compensation, principle of guilt, protection of civil rights
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Press Release

 

Theory and practice

M.L. Galperin Enforcement principles. Version 2.0
The author states that lack of formulated principles of enforcement proceedings, which should be translated into the legal framework for their development, does not allow qualitative improvement in the efficiency of these proceedings. The fundamentals of modern enforcement need to be formulated with a view of rebalancing the interests of debtors and creditors to ensure the equality of arms, pragmatic approach, and creditor’s pro-active role. The author also distinguishes one principle of justice which is inherent in enforcement proceedings but is extrinsic to procedural law.
Keywords: enforcement proceedings, principles of law, fairness, equality
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K.A. Barysheva, D.M. Maksimov Cross-border mirror trades: private law nature and liability risks
The paper explores the legal nature of mirror trades at the international investment market. The authors analyse the level of private law protection and validity of such transactions and raise arguments for their de jure recognition. In economics, the mirror trading is defined differently; the legal definition is based on compliance history of financial regulators. The paper is instrumental in assessing the risks of mirror trades in criminal law and their classification as a money laundering offence by financial regulators in the USA, UK, and Russia. The kind of mirror nature comes from combining various purchase and sale contracts whose beneficiaries try to disguise the underlying economic substance of transactions. These transactions are not presumed illegal but are under close scrutiny by governments because of easy flow of capital between countries. Deutsche Bank’s recent operations in Russia and the operations of Bank of Credit and Commerce International (BCCI) between the 1970s and 1980s serve as a typical example of mirror trading. The positions taken by New York State Department of Financial Services and Britain’s Financial Conduct Authority on mirror trades are carefully examined. The authors also analyse the current level of anti-money laundering legislation and countermeasures in Russia as well as market manipulation practices and the effectiveness of banking supervision.
Keywords: mirror trading, compliance, money laundering, plea bargain, shady transaction, market abuse
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N.V. Filipenko Implementing right to information in real estate property owners associations
This paper addresses the problems of obtaining information about common property management in apartment buildings and suburban real estate properties, in situations where such management is performed by non-profit companies — real estate owners associations.
Keywords: right to information, real estate, management, property, apartment building, common property
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N.V. Ivanov Compensation for infringement of exclusive rights: the problem of determining the extent of liability
The article examines reasons for the problem of disproportionate responsibility for exclusive right infringement as well as suggested approaches to solve it. It analyses the Russian Federation Constitutional Court Decision No. 28-P of 13 December 2016 and its impact on the jurisprudence and new developments in the regulation. The combined (ambivalent) approach to the nature of compensation is asserted as a reasonable approach combining restorative and moderately punitive features.
Keywords: protection of exclusive rights, responsibility for infringement of exclusive rights, compensation for infringement of exclusive rights, statutory damages
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O.A. Makarova A new stage in the development of legislation on public companies
A year has passed since the entry into force of Federal Law No. 236-FZ of July 3, 2016 “On Public Companies and Amendments to Certain Legislative Acts in the Russian Federation”, and it is already possible to analyse the effectiveness of the newly introduced organisational form in comparison with two other types: state-owned corporation and state-owned company. This research supports the conclusion that there is some similarity between the above forms of legal entities alongside need to search for an optimal formation for a legal entity created by the government.
Keywords: state-owned legal entities, state-owned corporation, state-owned company, public company, joint-stock company with government involvement, corporate bodies
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A.S. Vlasova, N.M. Udalova Founder (participant) right to court ordered company liquidation
This paper analyses the specific aspects of the right of the founder (participant) to apply to the court to ‘wind up’ a company if it can’t achieve its core purpose, including if its operations are significantly hampered or impossible (Article 61 para 3(5) of the RF Civil Code). As suggested by the authors, this right is intended to protect participating interests and to exclude all companies with disrupted corporate relations from the business relationships, for example, in the case of a corporate conflict. However, the analysis of law enforcement practice demonstrates lack of clarity regarding the application of the above provision, inter alia, resulting from uncertainty about the company’s core purpose. Based on the civil law approach considering the company an independent entity, it may be reasonable to abandon such a radical way of problem-solving. Therefore, the liquidation provision should be replaced with alternative remedies.
Keywords: compulsory liquidation, company’s core purpose, profit as business goal, rights and responsibilities of corporate founder (participant), corporate conflict, corporate relations
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D.G. Golskiy May or must the court recognise and enforce the annulled arbitration award in accordance with art. V of the New York convention?
The author uses different (literal, historical, teleological and normative) ways of interpreting the provisions of Art. V of the New York Convention in order to understand the essence of court powers exercisable in recognition and enforcement of the vacated award. In particular, it is analysed whether the court has discretion in the issuance of exequatur or this rule is mandatory and leaves the court with no choice but to refuse recognition and enforcement of the set aside arbitration award.
Keywords: arbitration, vacation of the award, recognition of the vacated awards, the New York Convention, enforcement of the arbitration award
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