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ARCHIVE FOR 2017    RUSSIAN

Ноябрь 2017

CONTENT

 

 

Alexey Ispolinov RF Supreme Court Judgment on Apple Watch Classification and International Law
Case comment on the judgment of RF SC No. 305-КГ17-3138, 20 September 2017
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Ivan Stasyuk Status of Shareholder’s Loan Claims Against Its Company in Bankruptcy
Case comment on the judgments of RF SC No. 305-ЭС17-1556, 308-ЭС17-1556 (2), 6 July 2017
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Sergey Strembelev Completing Construction Project upon Termination of Public Land Lease
Case comment on the judgments of RF SC No. 305-ЭС17-2608, 27 June 2017 and No. 304-ЭС16-20773, 14 June 2017
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Andrey Pavlov Prolongation of an Obligation and Its Effect on Accrued Penalties
Case comment on the judgment of RF SC No. 305-ЭС17-6839 31 August 2017
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Sergey Budylin Sham or Illusion: The Case about New Zealand Trusts
Commentary to the Case JSC Mezhdunarodniy Promyshlenniy Bank v. Pugachev [2017] EWHC 2426 (Ch.) (11 October 2017)
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FREE TRIBUNE

Evgeniy Sukhanov Entrusted Property Management as the Method of Enjoyment of Ownership under the Law of Obligations
This article compares the legal concepts of Anglo-American trust, German Treuhand, Continental- European fiducia and the Russian contract of entrusted management of property. It is demonstrated that, from the perspective of Continental European law, the English trust constitutes a mix of contractual elements (relations between the settlor, beneficiary and trustee governed by the law of equity) and elements in rem (relations between a trustee and third parties governed by the common law). The difference between trust relations in rem and trust relations in personam, as one can see from case law, lies in the different causes of action rather than in the nature of the right (obligation vs property) which is unknown to Anglo-American law. Attempts to regulate the trust in international conventions show inconsistency and inability to draw a strict borderline between elements in rem and elements in personam in the trust relationship. To the contrary, the German fiduciary transfer of title or creation of entrusted management of property (Treuhand) constitutes the concept of the law of obligations rather than property law. The same legal nature is found in fiducia and fiduciary transactions which are known to French and Italian civil law. Sometimes, transferring property into entrusted management is seen as a specific type of representation (agency) in contractual relations (Austria, Czech Republic). In all cases, however, one should speak about civil-law contracts rather than proprietary titles. The Russian contract of entrusted management is the method of effective enjoyment that does not lead to any new or «split» ownership. Therefore, the attempts to use the concept of trust in Russian civil law are unwarranted.
Keywords: rights in rem, entrusted management of property, trustee, beneficiary ownership, contract of entrusted management, law of obligations, enjoyment of civil rights, pecuniary liability, property right, transaction, ownership
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Yuriy Fogelson Contractual Damages. Practice of Recovery
Based on judicial statistics, this paper assesses the problem of damages recovery for breach of contract and the impact of evidentiary standards reform on the recoverability of damages. It is shown that, despite the 2011 precedent decision by the Supreme Arbitrazh Court of the Russian Federation, success rate of claims for damages began to change only after Article 393 of the Civil Code of the Russian Federation had been amended in 2015. It is also shown that this legal remedy remains in low demand; it is much less trusted than penalty clauses. The available statistics indicates no change in the success rate of claims for damages in percentage terms but shows their increase per one successful claim. Courts were slow in applying the rules of Article 393 of the Civil Code after the reform. Nevertheless, in 2016 the process was accelerated and largely associated with subordinate claims. The reform of evidentiary standards is a step in the right direction, and we can expect increasing trust in this remedy for breach of contract.
Keywords: contractual damages, evidentiary standards, judicial statistics, civil law reform
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Elena Ostanina Protection of Pseudonyms and Names
The RF Supreme Court recent case (Civil Chamber Ruling No.5-KG17-102 of 15 August 2017) addresses the following question: whether to publish books under a pseudonym prior to the new version of Art. 19 of the Civil Code the autor had to receicve a consent of a person whose name was used as the pseudonym? It is also unclear who needs to give his consent to the use of the pseudonym which represents collective authorship. The author insists on interpreting Art. 19 purposely. It is not forbidden to adopt a pseudonym that can sound like a real name. It is forbidden to adopt a different identity, acting as another person, assuming the rights and responsibilities of another person.
Keywords: pseudonym, right to name, abuse of right, copyright
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Eleonora Vitol, Maksim Bashkatov On the Issue of Credit Notes as a Variety of Structural Product. Part Two
This article is a continuation of the research devoted to the problem of credit linked notes — a variety of structured products which is widespread on the Russian financial market. The authors carry out a detailed analysis of the model of issuing credit linked notes used by Trust Bank, analyzing the judicial practice and current opinions in the domestic literature. Based on the comparison of the mechanism used by Trust Bank to attract depositors’ funds with the classical model of issuing credit linked notes, the article presents arguments against classifying the structured product offered by Trust Bank as a credit linked note.
Keywords: credit linked note, structured product, Trust Bank case, financial market, securities market
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Ksenia Usacheva Transactions Concluded to Creditors' Prejudice: Their Avoidance in Germany and Austria
The long-forgotten challenge against transactions concluded to creditors' prejudice, which operated under imperial Russian law, raises questions that find no answers with lawmakers or in the existing doctrine. At the same time, judicial decisions increasingly involve certain elements of its application on an almost random basis (e.g. the RF Supreme Arbitrazh Court case law followed by the RF Supreme Court Rulings dated 1 December 2015 (No. 4-КG15-54), 8 December 2015 (No.5-КG 15-179 and No. 34-КG 15-16), 20 September 2016 (No. 49-КG16-18), 28 February 2017 (No.32- КG16-30) etc.). Therefore the intensive discussion of this mechanism, which has developed in other jurisdictions during its oblivion in domestic law, may bring interesting insights to Russian lawyers. Of special interest are the German and Austrian laws containing century-old special provisions on challenges of transactions prejudical to creditors that have been widely applied and supported by doctrinal concepts.
Keywords: bankruptcy, challenge against debtor’s transactions, challenge of transactions concluded to creditors' prejudice
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