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Февраль 2018





Alexander Razgildeev Abuse of a Dominant Position Affecting Consumers in General
Case comment on the judgment of RF SC No. 310-КГ17-12130, 20 December 2017
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Sergey Budylin «Restitutionary Damages» in Contract Law, or The Case of a Soviet Spy
Commentary to the Case Attorney General v. Blake [2000] UKHL 45 As a remedial response to a breach of contract, in most cases English contract law would use an award of damages, i.e. compensation for causing loss or injury to the other party. In this remarkable case, however, the court chose a different approach and granted an exceptional remedy ordering the defender to surrender his wrongful gains. Such a compensatory measure, which is more common in other areas of English law, is called «restitutionary damages». The case was brought against a Soviet agent who was discovered in the UK, fled to the Soviet Union and, when the perestroika began, decided to publish his memoirs in England.
Keywords: restitutionary damages, account of profits, non-disclosure agreement, disgorgement of gains, unjust enrichment
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Vsevolod Baibak, Anton Ilyin, Artem Karapetov, Andrey Pavlov, Sergey Sarbash A Сommentary on the SC RF Plenary Ruling of 21 December 2017 No. 54 «On Certain Issues in the Application of RF Civil Code Chapter 24 on Contractual Assignment of Rights and Debts under an Obligation»
This paper analyses the Ruling «On Certain Issues in the Application of the Russian Federation Civil Code Chapter 24 on Contractual Assignment of Rights and Debts under an Obligation» which was adopted by the Supreme Court of the Russian Federation in plenary session on 21 December 2017. The ruling provides important clarification on the Civil Code provisions regulating assignment of rights (cession) and transfer of debts, which have been largely amended as part of the recent civil law reform. The first part of the paper in this issue examines paragraphs 1–18 of the ruling along with the general aspects and permissibility of assignment. Its second part, which will appear in the next issue, will analyse the remaining paragraphs of the Ruling.
Keywords: assignment, cession, transfer of debt
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Konstantin Sklovskiy Application of Law and Good Faith Principle
The introduction of the bona fide (good faith) principle into the law and practice led to the emergence of unfair acts in addition to lawful and unlawful acts. The principle of good faith is not a statutory clause and cannot apply otherwise than through the body of precedent developed by national courts. This principle is also not a statutory prohibition. It entails a variety of consequences; and does not apply if there are special rules regarding bad faith that establish special consequences of it. The bad faith of one contractual party towards the other does not invalidate the transaction within the exact meaning of art. 168 of the Civil Code of the Russian Federation. The simultaneous application of special rules on bad faith and the good faith principle regarding both parties is possible. Any transaction involving the bankrupt’s property is void where the parties acted in bad faith in relation to creditors. No general rules, including the principle of good faith, can apply to such a specific transaction; the consequence of its invalidation is a special form of unjust enrichment (i.e. condictio).
Keywords: the good faith principle, invalid transactions, vindication, invalidity of transactions in bankruptcy, unjustified enrichment, limitation period
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Ilya Kokorin All Creditors Are Equal, but Some Are More Equal Than Others
Russian insolvency law is constantly changing, aiming at improving the efficiency and effectiveness of insolvency proceedings and protecting creditors’ rights from various abuses. For a long time, the status of shareholder loans has been the subject of protracted debates. It was not until the summer of 2017 that the Russian Supreme Court finally decided that under certain conditions upon debtor’s insolvency, claims arising from shareholder loans are to be subordinated and treated as capital contributions. In this piece, I argue that the current approach lacks much needed clarity and is prone to loose interpretation, potentially undermining restructuring attempts and impeding parties’ expectations. To improve it, among other suggestions, I advocate for the introduction of a one year «suspect period» for shareholder loans and the imposition of a minimum shareholding threshold. These recommendations have been inspired by the relevant experiences from Germany and the USA.
Keywords: subordination, bankruptcy, shareholder loans, Germany, the USA
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Anna Sirotkina Bank Guarantees for Public Procurement Contracts: Freedom in Determining the Terms of Guarantor’s Obligation
This article analyses the substance of the terms and conditions of guarantees that banks provide to secure the performance of obligations under public (municipal) contracts. It describes a bank guarantee and its characteristic features such as independence, prompt performance. The mandatory character of the rules relating to guarantees in public procurement contracts is regarded as the means to protect rights of contractors (principals) and customers (beneficiaries) and ensure openness and transparency of procurement from the start of the process to the execution of the contract. The author assesses the freedom that banks have in establishing the requirements for documents to be provided by the beneficiary and the triggers for payment. The analysis is based on the ICC Uniform Rules for Demand Guarantees (URDG 758), the Civil Code of the Russian Federation and laws regulating contracts. The conclusion is that this freedom needs to be restricted. For instance, setting stricter bank requirements for standard forms will in some cases complicate significantly the presentation of the beneficiary’s demand complying with the guarantor’s request; and such terms may be deemed void.
Keywords: independent guarantee, security of an obligation, public procurement
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Daria Petrova Theoretical Approaches to Justification of Frustration of Contract in English Law
The article analyses the theories justifying the English doctrine of the frustration of a contract. The author considers the historical development of these theories. More specifically, the article explores the implied term theory, the theory of just solution, the theory of the foundation of a contract, the theory of total failure of consideration, and the theory of radical change in the obligation. Also, the author analyses the role of construction of contract in justifying the termination of contract by frustration. In conclusion the author considers the multi-factorial approach which is predominant in modern English theory and practice.
Keywords: doctrine of frustration of contract, contract, implied term, foundation of a contract, consideration, construction
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Lina Taltseva, Maria Filatova Class Actions in the Legislation and Practice of Great Britain
This paper gives an overview of class actions in the UK law and practice. The authors explain the Russian translation of the English term «class actions», the function of class actions in the UK system of collective litigation and their notable characteristics. More specifically, it looks at first two class action cases and the reasons why the claimants’ arguments were rejected by the court.
Keywords: class action, damages, competition regulation
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Roman Taradanov On Certain Issues of Application of the Russian Federation Constitutional Court’s Position Set Forth in its Judgment of 6 December 2017 No. 37-П Regarding Judicial Approaches to Rent Recovery Claims for Land Plots in Public Ownership
The Judgment No. 37-П of the Constitutional Court of the Russian Federation of 6 December 2017 ‘On constitutional review of article 12 of the Civil Code of the Russian Federation and articles 13 (section 2) and 29 (section 1, subsection 1.1) of the Arbitrazh Procedure Code of the Russian Federation in connection with the complaint filed by V.G. Zhukov’ stresses that arbitrazh courts should check whether rules of regional and municipal acts applicable in a dispute regarding the rent rate payable under a lease of land comply with the rules of greater legal force. In such cases there is no need to challenge these rules in courts of general jurisdiction in an independent case. The author suggests how this position could be applied in practice. In particular, it is argued that the courts could take into account cases in which similar rules determining the rent rate have been declared unlawful by the Supreme Court of the Russian Federation or when the unlawfulness of the rules in question is evident from the content of these rules.
Keywords: Constitutional Court of the Russian Federation, Presidium of the Supreme Arbitrazh Court of the Russian Federation, rent for land, Russian Government Decree No. 582 of 16 June 2009
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Dariia Zhestovskaia Penalty Reduction under Article 333 of the Civil Code of the Russian Federation and the Concept of Unfair Contractual Terms
The author analyses the practice of substituting penalty reduction under art. 333 of the Civil Code of the Russian Federation by declaration that the penalty clause as unfair. As a result of this substitution, the procedural restrictions on penalty reduction are lost (applying аrt. 333 of the Civil Code of the Russian Federation in commercial disputes only when the defendant asks for this). This leads to an unwarranted invasion in contractual freedom. The author suggests approaches that distinguish the penalty reduction under аrt. 333 of the Civil Code of the Russian Federation and the concept of unfair contractual terms in order to create a consistent and balanced system of court intervention in the penalty clause.
Keywords: unfair contractual terms, reduction of penalty, аrt. 333 of the Civil Code of the Russian Federation, freedom of contract
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