Журнал ЗАКОН

The article substantiates the need to distinguish settlement agreements of two types: agreements based on recognition by the parties of the pre-procedural set of facts alleged in the claim or objections to it, and settlement agreements concluded with a continuous denial by the parties of the facts alleged in the litigation documents. Settlement agreements of the first type have as their content the disposal of rights and obligations arising from the facts, directly or implicitly recognised by the parties by entering into this agreement, and can be checked for their compliance with the material law governing these rights and obligations. Settlement agreements of the second type cannot be checked for compliance with the material law, because their subject is exclusively a termination of a judicial dispute, without determining the fate of the disputed rights and obligations, since the existence of the latter is denied. Termination of the dispute should be recognised as an independent basis (causa) of property provision — the latter is committed by the parties to the settlement agreements of the second type solely as consideration for reaching a procedural compromise, and not in fulfilment of the obligations that have become the subject of the dispute.

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Keywords: settlement agreement, consideration for reaching a procedural compromise (termination of the dispute), denial of the pre-procedural set of facts

The article examines the issues of the admissibility of concluding a settlement agreement under a suspensive or resolutive condition, as well as the impact of the occurrence or non-occurrence of such conditions on the fate of the settlement agreement and its enforcement. The author makes an attempt to assess the limits of the freedom of the contract when concluding a settlement agreement, taking into account its dualistic (civil law and procedural) nature. In particular, the problem of the correlation of the principle of free agreement of conditions in a settlement agreement as a civil law contract with its inherent procedural properties of a court decision — finality, certainty, enforceability is analysed. The author reveals the practical difficulties that arise with forcing the execution of settlement agreements, especially if the obligations for one party are defined under the condition, and for the other party they are formulated specifically and are subject to immediate implementation. The article draws attention to the impact of direct prohibitions to make certain transactions under the condition established by law, on the inclusion of elements of these transactions in settlement agreements.

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Keywords: settlement agreement, freedom of contract, resolutive and suspensive conditions, enforcement

The author points at the risks of the failure to comply with the settlement agreement, so the research has been made to analyse the consequences of those risks being brought into effect, with due regard to the current court practice. The legal consequences are usually the penalties, and it was arguable to include them in settlement agreements until recently. The author adheres to the view that parties are free to include any civil penalties in their settlement agreement, particularly because of the legal approach which was formed earlier and is still widely applied by arbitrazh courts: the settlement agreement must be the ultimate termination of the dispute. The article covers the possibilities to employ such sanctions as forfeit, default interest and recovery of damages, and also astreinte. In this context the author considers as well the issue of the limits upon the modification of the procedure and the method of the enforcement of the respective court ruling. In addition there is a need to facilitate the option of defining in court proceedings the due amount if the settlement agreement is to be enforced in case of partial fulfilment on a voluntary basis.

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Keywords: settlement agreement, non-compliance with the settlement agreement, sanctions in the settlement agreement, the modification of the procedure and the method of the enforcement of the court ruling

The article analyses the possibilities of reconciliation of the parties directly during the arbitration proceedings or in connection with it. Attention is focused on how it differs from the regulation of the peaceful settlement of civil disputes in the courts. The current legislation on arbitration, the rules of Russian permanent arbitration institutions and foreign arbitration centres that have the right to administer arbitration in Russia are analysed in connection with the role of arbitrators in reconciliation of the parties, the conclusion of a settlement agreement, including those made after the completion of arbitration, the issuance of a decision on agreed terms, using the mediation before arbitration or in the course of it, the possibility of combining the role of the arbitrator and the mediator. Attention is drawn to the main attractive feature of legal regulation — an opportunity for the arbitral tribunal to make a decision on agreed terms, which allows not only to resolve the dispute based on the mutual interests of the parties, but also to ensure the enforceability of the agreements reached.

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Keywords: arbitration, settlement agreement, mediation, mediation agreement, decision on agreed terms

Once Singapore Convention on Mediation was adopted in 2018 and it has become possible to facilitate performance of the international commercial settlement agreements resulting from mediation abroad interest to mediation as a means of settlement of the international commercial disputes started to grow. In the eyes of the lawyers such mediated settlement agreements have much in common with the awards of international commercial arbitration, the most popular dispute resolution tool for disputes arising during foreign trade activities. Today in the age of turbulence and chaos mediated settlement agreements allow to satisfy the needs of business in the expediate settlement of foreign trade conflicts on the terms acceptable for the parties and to obtain guarantee of quick, simple and cost-efficient performance of the agreements reached. For this reason, it is worth considering adjustment of the internal laws to the best world practices. Article considers the means available under the Russian laws to make mediated settlement agreement enforceable and the tests it would have to undergo on the way. Deeming it advisable for Russia to join the Singapore convention on mediation, author concludes that it is necessary to prepare the internal legislation for such step as it was done, e.g., in Belorussia. Possible solution could consist either in introduction of a special chapter on granting relief in connection with the performance of international commercial mediated settlement agreements corresponding to the provisions of the Singapore Convention on mediation and the UNICTRAL Model law on mediation in the Russian Code of Procedure with Commercial Courts or in the adoption of a separate law on international commercial mediation. Since international commercial arbitration and the internal arbitration are regulated in Russia by two separate laws taking into account the special features of the disputes resolved, it would be logic to keep dualistic regulation for mediation as well.

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Keywords: international commercial mediated settlement agreement, Singapore Convention on Mediation, UNCITRAL Model Law on International Commercial Mediation, performance of mediated settlement agreement, granting relief

The article is devoted to the search for a criterion for the applicability of a settlement agreement in matters of a public law nature. The dual nature of the settlement agreement is shown, combining both substantive and procedural features. The properties of a settlement agreement as an act of public, procedural law arise at the time of its approval by the court — however, at present, the legislation does not contain an answer to the question of which cases are subject to settlement and which are not. The author’s criterion for determining the admissibility of a settlement agreement in public law cases is proposed: the criterion of abstract or specific public law enforcement. The issues of concluding a settlement agreement on certain categories of cases of a public law nature, as well as on cases that combine both imperative and dispositive legal regulation, are considered.

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Keywords: civil proceedings, administrative proceedings, arbitration proceedings, private law, public law, public legal relationship, settlement agreement

Issues of judicial control over the result of conciliatory activities of the parties are analysed. The limits of the court’s control activities are determined when it approves the settlement agreement. The legal nature of reconciliation outcomes is explored in the context of specific types of conciliatory procedures: mediation, negotiation, judicial mediation. As a result of an analysis of doctrine and judicial practice, the author concludes that it is advisable to transfer the authority to certify and examine the results of any conciliatory procedures to a notary.

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Keywords: interaction of parties, procedural agreement, the purpose of the proceedings, judicial review, reconciliation of the parties, procedural cooperation, mediation procedure, mediator, judicial conciliator, a mediative agreement, settlement agreement

The article is devoted to the settlement agreement concluded as a result of the use of a new judicial conciliation procedure — judicial conciliation. In comparison with the traditional settlement agreement, the features of the legal nature, subjects, procedure for concluding and approving a settlement agreement, which is the result of judicial reconciliation, are studied. Gaps in the legal regulation of this institution are identified, proposals for its further improvement are formulated.

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Keywords: civil process, arbitration process, administrative process, justice, judicial conciliation procedure, judicial conciliation, judicial conciliator, settlement agreement, mediation agreement, reconciliation of the parties, conciliation procedures, mediation

This article is devoted to the issues of taking into account the interests of the debtor’s minority creditors when approving rehabilitation procedures, both those regulated by the Bankruptcy Law and out-of-court agreements on restructuring. Author analyses the risks for creditors when concluding agreements on restructuring without their participation, as well as the problems of applying the rehabilitation privilege to creditors’ claims resulting from crisis financing. In addition, author considers the problem of coercing the minority by the majority when voting on conclusion of a settlement agreement in a bankruptcy case and analyses the case law of the Supreme Court and arbitration courts on disputes on the approval of settlements. A draft reform of the Bankruptcy Law is also considered in the context of expanding the practice of rehabilitation procedures and protecting the interests of minority creditors.

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Keywords: restructuring, rehabilitation procedures, rehabilitation privilege, subordination, settlement agreement

It is a response to the article by V.A. Belov and O.Yu. Skvortsov “Justice vs Freedom = Law: Antagonistic Contradiction and its Solution” (Statute [Zakon]. 2023. No. 2-3). The author examines the positive and negative aspects of the concept of justice offered by them, emphasising its natural law orientation and ideological closeness to the school of “revived natural law”. Another positive aspect of the proposed concept is the recognition of human freedom and justice as inalienable attributes of law. The very idea of opposing justice and freedom is regarded as controversial. The author argues that justice must not be opposed to freedom, because this opposition does not allow to think without contradictions of the very notion of freedom. The “narrow,” sociocentrist interpretation of justice has no satisfactory theoretical justification and must be reformed. The author offers for discussion his own concept of justice in law, based on a communicative approach, dialogical methodology and the principle of mutual legal recognition. Arguments in support of this view on the nature of justice are derived not only from philosophical and sociological research but also from evolutionary theory, biology and neuroscience. The basic idea is to justify the existence of two fundamental traditional values that underlie human conceptions of justice: the value of the human person and the value of society. Their optimal coexistence is possible only on the basis of the realisation of the principle of mutual legal recognition and the mutual rights and obligations arising from it. In the realisation of this principle lies the idea of justice. Law is born not in a struggle between justice and freedom, but in a struggle for justice and freedom.

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Keywords: justice, liberty, private law, social justice, traditional values, natural law, principle of mutual recognition, dialogue, human rights and freedoms, evolutionary theory, tribalism, neuroscience

The author asserts, that a family is a civil-law community and by some characteristics it is close to a legal entity. It is stated in the article, that if the common joint ownership concept is brought to its logical result, the claims of an ex-spouse shall be subordinated to claims of external creditors during the division of common property. The author also supports the presumption of community of debts.

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Keywords: a family, civil-law community, subordination of creditors’ claims, division of spouses’ common property, spouses’ common debts

In the April legal chronicle, the authors comment on important events in the field of international, housing and procedural law: the issuance by the Pre-Trial Chamber II of the International Criminal Court of an arrest warrant for Russian President V. Putin and Children’s Ombudsman M. Lvova- Belova; decision of the Constitutional Court on the interpretation of Article 17 of the Housing Code and on the plans of the Supreme Court to abolish contractual jurisdiction in contracts with consumers.

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Keywords: presidential arrest warrant, international criminal court, hotel service, residential premises, contractual jurisdiction

In this article the author considers the issues related to the legal status of post mortem children in family and inheritance law. The medical practice of posthumous reproduction has led to the birth of heirs during a long period after the death of the testator. The possibility of “creating” such heirs inevitably raises the question of the infinity of hereditary succession, the appearance of “lying inheritance” and eternal heirs. At the same time, the current regulation, focused mainly on the natural method of reproduction, does not allow establishing the origin of a postmortal child from a deceased parent, as well as “providing” him with a legal status in hereditary terms. The literal interpretation of Article 1116 of the Civil Code in the context of posthumous reproduction entails the necessity to define the term “conceived during the life of the testator” in order to clarify which of the stages of conception should be relevant for inheritance law: the moment of creation or implantation of the embryo. The comparative analysis of foreign legislation shows that the most liberal approach regarding the implementation of posthumous reproduction and the granting of inheritance rights to children born after the death of the testator is in Israel. At the same time, the approach of a number of US states should be recognised as the most balanced, taking into account all the interests. The research also made it possible to conclude that the recognition of postmortem children as heirs both by law and by will does not contradict the ideology of inheritance law.

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Keywords: posthumous (post mortem) reproduction, postmortal birth, children conceived during the life of the testator

This article analyses situations where a representative performs transactions on behalf of a principal with another person he also represents (dual representation (agency), double mandate). Economic considerations provided in this article show that dual representation implies risks for the principals, including those related to representative’s conflict of interests and abuse opportunities. At the same time, given its positive effects, dual representation should not be subject to general prohibition. As a matter of recommendation, the article provides a number of instruments for mitigating the parties’ risks in relation to dual representation.

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Keywords: dual agency (representation), representation (agency), conflict of interests, agency problem

The procedural risks inherent in the field of e-justice are considered by the example of participation in a court session in the web conference mode. The practice of application by the courts of legislative provisions on the appropriate format of holding court hearings is analysed; by the example of specific judicial acts, emerging approaches to resolving issues by courts that arise during online meetings are identified. The “imposition” by courts of the remote format of participation in the process is critically assessed, as well as the imposition on the participants in the process of procedural risks associated with the inability to actually take part in the meeting for reasons beyond their control. Concrete solutions are proposed to minimise the identified risks and improve procedural legislation.

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Keywords: e-justice, web conference, online meeting, procedural risk, right to judicial protection

On January 1, 2023, the law on the reform of the law on guardianship (Gesetz zur Reform des Vormundschafts- und Betreuungsrechts) came into force in Germany. This is a very extensive law; in this article it is proposed to pay attention to two interrelated problems: the reform of the norms on legal care (Betreuung) and the reform of rules about “Livig Wills” in Germany (Vorsorgevollmacht). Since the problem of protecting the property and personal non-property rights of a seriously ill patient is universal, this article also considers the same question in Russian law.

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Keywords: patronage, Living Will, guardianship, medical care

This article is a review of two monographs written by American legal historians of Russian origin. Both monographs touch upon important subjects (largely neglected by previous researchers) related to the Russian civil law in the late imperial period.

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Keywords: civil law in the Russian Empire, bankruptcy, debt collection, public goods