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ARCHIVE FOR 2017    RUSSIAN

Декабрь 2017

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

 

The Event. Comments of the Experts

 

Topic of the issue

V.E. Pruzhansky, A.V. Subbot Antitrust Compliance: What’s at Stake
This paper considers the phenomenon of antitrust compliance as a system of measures which are being developed by business entities to prevent antitrust violations. It assesses the effects of antitrust compliance on the extent of liability under public law in Russia and Europe. The authors note that the lack of a detailed regulatory framework for this mechanism in Russian legislation appears to be a positive feature that encourages companies to develop most effective compliance control tools rather than use their imitations. Any radical changes at the legislative level are unnecessary and may even have detrimental effects. The development of this system can now be better promoted only through legal and regulatory compliance practices.
Keywords: antitrust compliance, compliance control, prevention of antitrust violations, antitrust liability
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M.V. Radetskaya Protection of Exclusive Rights and Suppression of Unfair Competition: the Search for a Balance
The author examines the Federal Antimonopoly Service’s arguments set out in explanations to a new draft legislation prescribing extension of antimonopoly regulation and mechanisms to the scope of intellectual property rights. The author substantiates the conclusion that a balance between the regulation of intellectual property and the protection of competition will not be achieved by complete removal of antimonopoly immunities as it is suggested in this draft. Adoption of such initiative may lead to unreasonable, unjustified and unlimited interference of the Antimonopoly Service with any possible use of intellectual property objects or disposal rights to such objects.
Keywords: intellectual property, antitrust law, antitrust immunities, limitation of exclusive rights, compulsory licensing
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M.L. Bashkatov, E.V. Galkova Russian Antitrust Policy and Market Dominance
This paper examines the relationship between the antitrust law provisions on dominant market position and dominant bargaining position. The EU and Russian laws are referred to when describing dominant position in the context of antitrust legislation and focusing on single firm dominance and its legal consequences in court decisions. The paper also draws on the studies of administrative policies and trade regulations and concludes that Russian legislation presupposes declaring the dominant position of an economic entity exercising a superior bargaining power.
Keywords: antitrust legislation, dominant position, superior bargaining power, accession agreement, competition policy in food market, competition law, trade regulations
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A.Yu. Glazunov Antitrust Regulation of Horizontal Mergers and Acquisitions Through the Prism of the Economic Analysis of Law
In this article author analyses some factors, which determine the results of merger control. In Russia, both legal rules and doctrines predominantly concentrate on the “technical aspects” of merger control (transactions and actions subject to merger control). However, it is very important for businesses to be aware of the criteria of mergers allowability from the perspective of competition law, if such mergers are subject to merger control by virtue of the “technical” criteria. The author looks into this problem from the perspective of law&economics, which gives invaluable tools for the competition law analysis. The classical concepts of law&economics (such as Pareto efficiency or Kaldor-Hicks efficiency) and competition law&economics (for instance, collision of Harvard and Chicago approaches) are reflected in the actual problems of merger control. The article concludes that a significant growth in market concentration shouldn’t ipso facto determine the results of merger control, and the market concentration indices shouldn’t result in neither conclusive nor rebuttable presumption of the negative effect on competition. Moreover, standards of proofs of both positive and negative effects on competition should be symmetric in the case of merger control.
Keywords: mergers and acquisitions, merger control, O. Williamson’s model, merger efficiencies, presumptions
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Press Release

 

 

Theory and practice

A.V. Kukin, Yu.V. Eremenko, O.P. Pleshanova Small Enterprises: Issues of Affiliation and Imitative Fragmentation
This article focuses on the legal framework and government support measures for small businesses in Russia. The authors examine privileges available to small business in a number of areas such as taxation, government procurement, privatisation of real estate, deposit insurance and audits by government agencies, including the Russian Federal Antimonopoly Service. Special emphasis is placed on the case law revealing the unlawful use of privileges and creation of artificial schemes for unfair profit, with particular reference to the imitative fragmentation of big businesses seeking privileges.
Keywords: SMEs, privileges for small business, fragmentation of business, antitrust control, risk-based approach
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N.V. Kozlova, S.Yu. Filippova The Unexecuted Contract: Classification and Legal Consequences
This paper examines the phenomenon of unexecuted contract. It describes its legal nature and relationship with other relevant facts. Legally regarding a contract as unexecuted is a legal fiction and the contract as such is treated as a legal factor. The author underlines the legitimacy of acts in executing a contract regardless of their effect, and outlines the legal consequences of finding the case of an unexecuted contract.
Keywords: contract, unexecuted contract, transaction, legal factor, legal fact, legal fiction
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O.M. Oleynik Corporate Rulemaking: Evolving Jurisprudence
This paper describes a new phenomenon in Russian law — corporate rulemaking. It focuses on the recent practice of courts applying corporate regulations. This practice covered various legal relations: corporate, tax, civil, labor, etc. There are different forms of corporate regulations, including charters, rules, policies, codes, instructions, etc. The author shows a number of problems encountered by courts in the process of making a decision and analyses the ways of resolving them.
Keywords: internal documents, corporate regulations, local regulations, corporate rulemaking, corporate management powers
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E.B. Lauts The Bank of Russia’s Role in Preventing Bank Failures
This paper addresses regulatory issues relating to the new insolvency (bankruptcy) prevention system for credit institutions. The rehabilitation scheme relies on direct capital injections by the Bank of Russia through its Banking Sector Consolidation Fund to rescue battered banks. The author analyses the new legislative provisions establishing this mechanism and assesses their conformity with recommendations from relevant international organisations.
Keywords: credit institution, bank, Bank of Russia, insolvency (bankruptcy), Banking Sector Consolidation Fund
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N.B. Kashnikov Connection Fee for Line Structures. Gardeners’ Partnership Property in Shared Use. Easement
The cases of gas pipeline easements have become widespread. In one of these cases an easement was established over a gas pipeline belonging to the gardeners’ noncommercial partnership for the benefit of its member. Despite the fact that the law does not explicitly prohibit establishment of an easement in this case, the Civil Division of the Moscow City Court has indicated that an easement over the gardeners’ partnership property in shared use can not be established for the benefit of its member. In addition, the paper examines the existing methods of easement fee estimation. None of these methods are suitable for estimation of an easement fee for the gas pipeline which the owner significantly invested in. In the latter case an easement fee should take into account the need to partially compensate the owner’s expenses for the construction of the gas pipeline.
Keywords: easement over garderners’ partnership property in shared use, payment for easement, gas pipeline
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A.V. Konovalov The Notion of Principles of Law in Soviet Civil Law Doctrine
This article explores the notion of principles of law in Soviet doctrine. The author provides numerous examples illustrating the ideological character of law principles. It was generally accepted in the Soviet period civil law doctrine that the principles of law resulted from objective industrial relations (dialectical materialism). However, the author notices a contradiction in perception of law principles as having an objective nature. The majority of Soviet authors recognised the legal effect of the principles only when they were prescribed by the existing law, therefore, completely dependable on the subjective understanding and interpretation of the legislator who expressed the views of the ruling class as an ideological superstructure element of the society. Such “normativism” inevitably leads to the assumption of significant imbalance in understanding the principles of law and those of civil law in particular: their meaning was first strictly determined by the will of the ruling class and then became variable and volatile. According to this view, the principles of law are not stable; they can easily lose relevance, change their meaning and generally undergo the pressure of material social relations they apply to.
Keywords: principles of law, civil law, Soviet legal doctrine
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K.A. Barysheva Criminal Law Protection of Private Life in Russia and Foreign Countries
The possibility and conditions of legal protection of private life depend on the content of this notion, which has not been well elaborated in Russia and abroad. Private, personal life includes personal freedom, freedom of choice of human behaviour (restricted by law), abiding place, places of work and leisure, etc. The way of spending time is also personal choice. Invasion of privacy such as gathering information, stalking and cyberstalking, mental pressure on the victim, infliction of emotional suffering, psychological “terror”, harassment or other actions (controlling or coercive behaviour) are socially dangerous and require regulation under criminal law. The paper analyses foreign laws (UK, Germany, Poland) stipulating criminal liability for stalking, controlling or coercive behaviour in an intimate or family relationship, and determines the corpus delicti of these crimes. The author examines the definition of private life in legal science, jurisprudence and legislation, and concludes that the reviewed concept needs a broader interpretation in law. Specific features are identified in foreign laws that criminalise emotional distress.
Keywords: UK criminal law, criminalisation, private life, stalking, domestic violence, controlling or coercive behaviour, double prevention, emotional distress, non-economic damages
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Foreign experience

A. Metro Gratuitious Deposit and Deposit for Hire
This article explores the development of the institution of safekeeping (deposit) in Roman private law and European legal traditions. The author reveals that the evolution of legal thought and the impact of modern commerce combinining various types of contracts, which create legal relations in a commercial context, into the concept of the contract of deposit, gradually removes the latter’s most fundamental feature of constitutive importance – that of being gratuitous.
Keywords: safekeeping contract, deposit, gratuitous, for hire, depositum, locatio conductio operis
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A.A. Vishnevskiy Good Faith in Foreign Banking Law: Approaches to the Problem
It is the author’s opinion that an attempt to offer a comprehensive definition of the good faith principle in modern legislation is unrealistic. The very nature of the good faith phenomena insists that the answers to this question can be traced only in the course of a detailed examination of the specifics and facts of a particular case. Looking at the findings in foreign banking law is useful in this respect, as far as it helps to define the criteria for identification of the cases where the question of good faith is generally acceptable, as well as to avoid an excessively formal analysis in solving any particular case.
Keywords: civil law principles, good faith principle, banking law
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K.A. Usacheva Out-of-insolvency Contestation in the French Law: Prior to and after the Reform
The out-of-insolvency contestation allows a creditor to get access to the debtor’s divested assets and not to wait for the commencement of a long, complex and expensive bankruptcy procedure. Through those assets, the creditor could have its claims (effectively non-enforceable previously) satisfied. The article refers to the respective approach to the out-of-insolvency contestation, which was proposed by the French law prior to and after an extensive reform of the French law of obligations.
Keywords: bankruptcy, contestation of the debtor’s transactions, out-of-insolvency contestation
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