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ARCHIVE FOR 2018    RUSSIAN

Август 2018

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

IN MEMORIAM

 

The Event. Comments of the Experts

 

Topic of the issue

I.V. Reshetnikova, E.A. Tsaregorodtseva Enforcement: Deadline for Voluntary Execution, Enforcement Fees and Representation Expenses
The article deals with three aspects of enforcement proceedings, namely: the deadline for voluntary execution, the nature of enforcement fees, and representation expenses through the prism of Russian case law and legislation. The analysis concentrates on the compatibility of the legal nature of the compliance period and the compulsoriness of enforcement proceedings as well as the essence of enforcement fees and recovery of the legal representative´s costs in enforcement proceedings under the rules for allocating legal costs.
Keywords: case law, enforcement proceedings, voluntary execution, enforcement fees, representation expenses
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M.L. Galperin Are There Any Boundaries of the Debtor’s Liability in the Enforcement Procedure?
The author analyses the limits of enforcement with regard to the debtor in the enforcement procedure, taking into account the inadmissibility of ambiguously long and disproportionate state actions against the debtor (including liability measures). Defining the limits of enforcement, it is assumed that in the enforcement procedure the debtor opposes the creditor, rather than the state represented by the bailiff. It means that enforcement is to be applied not in some abstract public interests, but as a rule, in the interests of other private person holding the enforcement document issued in his/her name. The substantive boundaries of enforcement of subjective rights define their procedural limits in the enforcement procedure. Consequently, in order to balance the interests of the parties concerned and the state, the liability measures imposed on the debtor in the enforcement procedure are to be differentiated taking into account the nature of the writ of execution and the fair distribution of non-performance risks between the debtor and creditor.
Keywords: enforcement procedure, balance of interests, liability
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M.A. Erokhova Private Bailiffs in Russian Law Enforcement
This article offers reflection on whether private sector bailiffs can be introduced for law enforcement in Russia. The first part explains the rationale behind private enforcement in the Russian market. The second part centres on what powers can be delegated. And the author concludes that private bailiffs can assume any functions currently discharged by public sector enforcement officers in Russia, except for the authority to impose public liability for the debtor’s failure to comply with court orders.
Keywords: enforcement of judgments, effectiveness of enforcement, private bailiffs
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V.V. Yarkov Non-Budgetary (Private) Model of Enforcement: Operational Scope
The article is devoted to the examination of approaches for classification of the main global enforcement systems and the court officer’s status. The author analyses characteristics of enforcement proceedings and enforcement officer’s status in Russia. Moreover, the author assesses the potential effectiveness of domestic implementation of diverse enforcement models. To improve enforcement effectiveness, the author suggests and substantiates the reinstitution of the model of material incentives for enforcement officers, which was used in the Soviet period and up until 2005 in Russia.
Keywords: court officer, classification of enforcement systems, enforcement effectiveness, non-budgetary system of enforcement
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E.N. Kuznetsov French Model of Enforcement: New Realities
The article examines the functioning of modern French enforcement process. It analyses the interaction and application of national and European laws in the field of voluntary compliance and compulsory enforcement. Some conclusions are drawn about concrete directions for the development of enforcement procedures in modern conditions.
Keywords: power to enforce, judicial protection, enforcement, execution, strategic cases, french model of enforcement
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Discussion Board

A.V. Teslenko Criminal Code — a Tool of Repression or a Safeguard for Bona Fide Entrepreneurs?
The article touches upon the law enforcement issues under the provisions of Chapter 22 of the Russian Criminal Code. Referring to the works of Russian jurists, as well as to the judicial practice, the author states the need for a comprehensive “revision” of economic crimes. Such a revision should include de-criminalisation of certain offences along with removal of inconsistencies between criminal and sector-specific provisions. Further, the author points out the need to provide for national economic security, economic freedom and competition promotion in the text of the criminal law, which is one of the tasks the Russian Criminal Code should focus on.
Keywords: economic crimes, chapter 22 of Russian Criminal Code, tasks of Russian Criminal Code, restriction of competition
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S.Yu. Filippova Is Law a Price List or a Textbook? Revisiting the Purpose of Private Law
This article revisits the purpose of private law and contrasts the instrumental approach (sociological analysis of law) with the trade theory of law elaborated in legal literature. The author concludes that the operation of private law is fundamentally distinct from that of public law because private law influences behaviour of its entities by teaching how best to overcome conflicts and complications in interactions between them. The article takes a critical look at the idea of considering objective law to be a price list setting rates for rights and breaches. Rather, law should serve as a tool that assists private law entities in their communications and provides opportunities driven by the legal authority of the State, public trust in government, and scientific research as part of the legislation governing private relations based on the studies of typical conflicts.
Keywords: instrumental approach, trade theory of law, civil law, science of civil law, private law, sociological analysis of law
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Theory and practice

A.V. Demin, A.V. Nikolaev The Doctrine of Beneficial Ownership in the Context of BEPS: New Horizons
The article analyses the evolution of the concept of beneficial ownership of the income in the context of Action Plan on Base Erosion and Profit Shifting. It concludes that the doctrine of beneficial owner is compatible with the anti-avoidance strategies in LOB and PPT rules.
Keywords: beneficial ownership, beneficial owner, conduit company, passive income, Action Plan on Base Erosion and Profit Shifting, BEPS
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G.V. Tsepov A Contractual Approach to Corporation’s Right to Set Rates and Procedure for Property Contributions
Corporations are empowered to set the amount and the procedure for making property contributions by their members. Therefore, corporate bodies are given an opportunity to affect personal property of corporation members, which conflicts with the principles of autonomy of the will, equality, privacy and inviolability of property. To overcome this contradiction the author suggests using the methodology of the contractual theory of the corporation. Without denying corporations their rights to set the amount and the procedure for making property contributions, the author comes to a conclusion that these decisions can only be taken within a “corporate contract”. While the “corporate contract” is incomplete, a concerned participant has a right to challenge the decision in court on the grounds of inconsistency with the purpose and profile of the corporation’s activities, as well as the principles of equality, reasonableness and good faith. What is more, in case of taking a binding decision without the participant’s consent, the participant has the right to withdraw from the corporation. The obligation to pay future property contributions should cease upon termination of membership relations unless otherwise provided in the agreement between the participant and the corporation.
Keywords: corporation, property contribution, membership relations, contractual theory of corporation
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A.V. Ilyin Recognition of the Regulatory Legal Act by Court Invalid as the Basis of Revision of the Judicial Act on New Circumstances
The procedure for review of a court order based on the regulation subsequently declared invalid by court has to build on the constitutional provisions that restrain retroactive court orders. Finding a regulation invalid as of its enactment can be considered as a change in circumstances only in exceptional cases involving the nature of relations regulated by the challenged regulation. At the same time invalidation of the regulation, as soon as the respective judgment enters into force, can be considered as a ground for review of any court order issued under that regulation only insofar as it applies to the person who has succeeded in its invalidation. These conclusions are fully substantiated by the author.
Keywords: court assessment of compliance, retroactivity of court orders, review of court orders for change in circumstances
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K.S. Mityagin Theoretical and Practical Aspects of Joint Ownership of Intellectual Property Rights
The article discusses the issues of joint ownership of IP objects, argues that transactions can involve shares in intellectual property rights, and examines the theoretical and practical difficulties with intellectual property transactions. The author concludes that joint ownership of IP is still fraught with challenges despite the legal and judicial recognition of transactions involving shares in the exclusive right. Accordingly, he formulates legislative proposals that would help improve the situation.
Keywords: intellectual property, object of civil law, intellectual rights, share in rights, joint ownership, intellectual property transactions
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T.S. Lyubarskaya, N.S. Lashkov Contemporary Issues in the Law Applicable to the Security Interests in Movable Property in Russia and Abroad
This article explores the conflict of laws rules applicable to the security interests in movable property and IP rights. The authors concentrate their research around “pros” and “cons” of lex rei sitae as a default connecting factor for secured transactions with movable property. Further, the authors consider “pros” and “cons” of lex loci protectionis as a default connecting factor for secured transactions with intellectual property rights. Other approaches to international regulation of security interests are also analysed in the article.
Keywords: pledge, security interest, movable property, intellectual property, conflict of laws, lex rei sitae, lex loci protectionis
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A.A. Kostin International Treaty as the Basis for Recognition and Enforcement of Foreign Judgments (It’s Past, Present and Future)
The article provides a political and legal analysis of the provision establishing that treaty is a precondition for the recognition and enforcement of a foreign judgment. The author suggests that this statutory provision came into existence at the turn of the nineteenth century and its primary purpose was to ensure the equality of concessions between states in the field of justice. It is further noted that the reciprocity provision served the same purpose as the international treaty and that was the reason why it spread to legislations of several European countries (Germany, Romania etc.). As regards the Russian legal framework, the author discusses the correlation between existing national legislation and the right to fair trial under Art. 6 of the European Convention on Human Rights.
Keywords: recognition and enforcement of foreign judgments; international treaty; international civil procedure
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S.A. Puchkov Moral Damages as an Exceptional Remedy in International Investment Disputes
Moral damages are an exceptional remedy in investment arbitration. Indeed, the dispute resolution mechanism has developed to protect economic rather than personal interests. Nevertheless, in some cases investment tribunals have awarded moral damages on top of compensation for commercial loss. These cases include exposure of investors to acts of egregious behaviour totally unacceptable in a civilised society, e.g. physical attacks on investors and/or their employees. Investment jurisprudence dealing with moral damages lacks uniformity and, therefore, it is impossible to portray a typical investment case where moral damages are recoverable. However, certain guidelines can be extracted from the cases analysed in the article. The article offers practical recommendations on evaluation of the prospects of success of claims for moral damages and gives a number of tips on presentation of evidence and managing the process.
Keywords: international investment arbitration, moral damages, investor protection
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Foreign experience

N.A. Sutormin Class Litigation in the USA: Past And Present
The author analyses historical development of class action in the USA, main trends in its reform and gives estimation of its advantages and drawbacks. The author concludes that class action is an advanced institute of procedural law and its further modernisation is set to continue. The article contains the Russian translation of Rule 23 оf the Federal Rules of Civil Procedure.
Keywords: class action, group action, multi-party action, class litigation, history of civil procedure law in United States, U.S. Federal Rules of Civil Procedure
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