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Декабрь 2017




Ivan Belov The Tax Authority’s Right to Initiate a Reversal of Decisions on Taxpayers
Case comment on the judgment of RF SC No. 305-КГ17-5672, 31 October 2017
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Sergey Budylin The Execution of a Contract through Exchange of Copies, or the Timber Case
Case comment on the judgment of RF SC No. 78-КГ17-56, 12 September 2017
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Viktor Gerbutov Unjust Enrichment in Case of Invalid Reorganisation
Case comment on the judgment of RF SC No. 303-ЭС16-12221 (2), 28 September 2017
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Andrey Gromov Fulfillment of a Specific Performance Claim (Restoration of a Geodetic Reference Point)
Case comment on the judgment of RF SC No. 308-ЭС17-8172, 24 October 2017
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Alexander Razgildeev VAT and Market Prices: When the Deviation Does not Matter
Case comment on the judgment of RF SC No. 305-КГ17-4111, 3 October 2017
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Sergey Budylin Lord Nottingem and Electronic Mail, or The Case about Signed E-mail
Commentary to the Case Golden Ocean Group Ltd v. Salgaocar Mining Industries PVT Ltd & Anor [2012] EWCA Civ. 265 (9 March 2012) In English law, a guarantee must be in writing and signed by the guarantor. In 2012, the Court of Appeal (England and Wales) held that the writing requirement was satisfied in the contract of guarantee made up by exchange of emails which included the sender’s name. Thus, the Court adapted the seventeenth century statute to the modern settings as it recognised the enforceability of current commercial practice in relation to binding transactions.
Keywords: guarantee, writing, email, electronic signature
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Vladislav Starzhenetskiy Recognition and Enforcement of International Investment Arbitration Awards and Jurisdictional Immunities of Foreign States
Recognition and enforcement of international investment arbitration awards against a foreign state in Russian courts raises a whole range of complex legal issues related to jurisdictional immunities of foreign states. As a sui generis court proceeding, the recognition and enforcement of arbitral award against a foreign state affects its immunity from both jurisdiction and execution. Entering into arbitration agreement per se does not mean the state’s express consent to jurisdiction of foreign courts in proceedings concerning recognition and enforcement of arbitral awards, although this point of view is actively challenged by those who rely on the concept of «implied waiver» of state immunity which is common in Western jurisdictions. The adoption of measures of constraint against a foreign state in the execution of an arbitral award creates a significant risk to stability and comity in international relations and requires a very cautious and balanced approach that should also take into account alternative mechanisms for execution of international investment arbitration awards.
Keywords: jurisdictional immunities, recognition and enforcement of international arbitral awards, international investment arbitration
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Vadim Alexeev Continuous Connection to Land as the Single Characteristic of Real Estate»
The article reviews provisions of the Russian Federation Supreme Court Plenary Resolution No. 25 «On Application by Courts of Certain Provisions of Section I, Part One of the Russian Federation Civil Code» dated 23 June 2015 with Respect to Real Estate, and concludes that only natural properties can be used as criteria for classifying items as real property. The author criticises the idea that an item which is intended to be used for limited period of time should for this reason only be excluded from the group of immovable things. The article also suggests that unauthorized constructions should be regarded as immoveable things as well.
Keywords: immoveable thing, continuous connection to land, unauthorised construction, action on invalidation of title, action on demolition of unauthorised construction
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Ekaterina Bibikova Contract in Favour of a Third Party in Russian and European Private Law: A Comparative Account
Generally, a contract cannot confer rights on a third party. However, there are several legal concepts that enable a person who is not a party to a contract to acquire the right stipulated for that person by the contracting parties or to enforce the contract. Most of our present-day systems of law implemented this idea in the concepts of representation, cession, agency and contracts in favour of a third party. As to contracts in favour of a third party, historically Roman law did not accept the idea because of various maxims that constituted serious obstacles to the enforcement of rights stipulated in favour of a third party. Therefore, contracts in favour of third parties obtained their legality in Europe in its modern sense only at the end of the 19th century. There are several different models of contracts in favour of third parties adopted by different systems of law which provide that a third party derives its rights directly from the contract itself (Germany, England) or an explicit acceptance by the third party is needed (Netherlands, Russia). There are certain differences between genuine and non-genuine third-party benefit contracts, and contracts with protective effect for third parties that have practical implications for their application. It is material to be aware of the structure of relationships dictated by contracts in favour of third parties, namely cover ratio (Deckungsverhältnis), donation or currency (Zuwendungsverhältnis) and performance (Vollzugsverhältnis). It is only recently that this concept has been acknowledged in Russia, but it is rather narrow in its scope.
Keywords: obligation, performance, third party rights clause, protective effect of contract
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Daria Petrova Frustration of Purpose as the Special Case of Frustration of a Contract in English Law
The article analyses the frustration of purpose as the ground for application of the English doctrine of frustration of contract. The author considers the Coronation cases that started the history of the doctrine of frustration. Thus the author identifies the features of frustration of purpose in English law. Relying on the actual English case law the article explores the potential scope of application for the doctrine of frustration of purpose. In particular, the author analyses the cases of import and export restrictions as well as the subsequent change to the real property regime in the light of the English doctrine of frustration of contract.
Keywords: doctrine of frustration of contract, contract, purpose of contract, frustration of purpose
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Artem Berlin Conclusion of Settlement Agreement under Influence of Substantial Error
Based on Judgment of the RF Supreme Court Chamber on Economic Disputes No. 309-ЭС15-3840, 14 September 2015 The article is devoted to two major issues: limits of the enforceability of settlement agreement, and invalidity of settlement agreement concluded under the influence of party’s error in substantial fact. First, based on the commented judgment and historical statutory review, the article proves that the view that a court settlement agreement should be enforceable without further judgments is wrong. Such enforceability does not necessarily follow from the nature of the settlement agreement. Given this, the requirements to such agreements should be relaxed to include, for example, «frame clauses». Second, the article analyzes existing approaches of developed jurisdictions to the issue of challenging settlements concluded under the influence of error in factual background. It is suggested that legal significance should be attached only to the facts that had been considered by the court at trial hearing.
Keywords: settlement agreement, enforceability, mistake
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