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Июль 2011




Chief editor’s column


Interview of the issue

J. Gernandt There is only one way for law and order to deserve respect and trust - working from the beginning to the end.
The Chairman of the Arbitration Institute of the Stockholm Chamber of Commerce Johan GERNANDT answers questions asked by Jan Piskunov, the Editor-in-Chief of LAW Journal.
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The Event. Comments of the Experts

Special opinion and principles of legal procedure
For the first time ever the web-site of the Supreme Court of Arbitration of Russia (SCA of Russia) publishes a special opinion of its arbiter on the case heard by the Presidium of SCA of Russia: Sergey Sarbash did not share the opinion of his colleagues in the dispute between Yekaterinburg Power Network Company OJSC and Sverdolvenergosbyt OJSC. Although arbitrators became entitled to express their special opinion after the Rules of Courts of Arbitration of the Russian Federation were amended by Resolution of the Plenum of SCA of Russia No. 58 of 20.11.2008, special opinions have been published only by the Constitutional Court of the Russia so far. What will be the result of such practice applied at courts of arbitration? What will be its impact and will it be widely used? Is allowing publication of special opinions by courts of lower instances expedient? We addressed these questions to our experts.


Topic of the issue

N.N. Voznesenskaya Investment Climate
This article analyses challenges of the investment climate in Russia as compared to the world standards. Special attention is paid to developing laws and regulations in this field, which are rather instable and do not ensure favourable conditions for investments. The author identifies the key factors contributing to improvement of the investment climate.
Keywords: investment climate, investments, security of investments, administrative regime.
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S.V. Usoskin. An agreement for promotion and security of investments and taking into consideration their peculiarities at the stage of investment structuring in Russia and abroad
The guarantees of investor rights are fixed in bilateral and multilateral international treaties. However, investors should in advance ensure that their investments are covered by such treaties. This article dwells on the peculiarities of treaties made with Russia and on the issues of structuring investments through third countries to take advantage of treaties made by such them.
Keywords: investment arbitrage, security of foreign investments
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K.V. Chichkanova, O.G. Uryupinskaya, G.I. Panov Rights of foreigners to lands in near-border areas
January 9, 2011 – The president of Russia issued Order No. 26 On approval of the list of near-border territories, where lands may not be beneficially owned by foreign citizens, stateless persons and foreign legal entities. This order caused a wave of concern among foreign citizens and representatives of foreign companies that own or are planning to purchase lands on the near-border territories. In this article the authors try to understand whether such concern in connection with the said Order is reasonable and what caused it.
Keywords: Near-border territories, rights of foreigners, title to lands
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A.V. Asoskov Determining personal law for offshore companies in Russia
This article is dedicated to foreign experience in determining the private-law status of offshore companies carrying out most of their activities in another country. The author, who is a member of the Working Team for improvement of the provisions of International Private Law section of the Civil Code of Russia, set up under the auspices of the Council for Civil Law Codification and Private Law Research Center under the President of Russia, analyses the main approaches to tackling this issue that are reflected in the Concept for Civil Law Improvement and draft amendments to the Civil Code of Russia.
Keywords: personal law of the legal entity, offshore company, joint and several liability, removal of corporate veil, international private law
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A.A. Panfilov Construction investment contract: difficulties of qualification and issues of taxation
This article dwells on the problems of qualifying construction investment contracts in the light of tax issues. Today, there is no common understanding of how profit taxes and VAT should be assessed with respect to construction investment contracts. Various scenarios of contractual interaction between the parties of investment relationships, and tax consequences of each of them may differ drastically. The author tries to identify the main principles for qualifying investment relationships affecting the tax burden to be born by the parties.
Keywords: Investments in construction, taxation, investment contract, co-investing, participatory construction
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E.V.Zusman Direct and indirect state support tools ensuring return on investments in PPP projects
When we speak about security of investments in its traditional understanding, we mean, first of all, court protection, a ban on nationalization of property belonging to a foreign investor, ensuring equal rights for conducting investment activity and other similar mechanisms. However, mechanisms for ensuring security of investments or state support mechanisms increasing return on investments are in fact more numerous. What are they and who can apply them? The author studies such direct and indirect state support tools.
Keywords: investments, public-private partnership, state support mechanisms, state guarantees, collateral, investment fund of Russia
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Judicial practice. Comments

D.I. Stepanov, V.A. Kuznetsov Shareholder’s right to information
Comment to Letter of Information of the Presidium of the Supreme Court of Arbitration of Russia No. 144 dated 18.01.2011 On certain practical issues of settlement by courts of arbitration of disputes related to disclosure of information to members of business companies.
Keywords: right to information, protection of investors, minority and majority shareholders
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Theory and practice

M.V. Telyukina, V.N. Tkachev Bankruptcy tort in the system of civil law relations
A bankruptcy tort has an ambivalent legal nature and, as a result, is subject to ambivalent legal regulation. Elaboration of the notion and theory of bankruptcy tort has not been undertaken before, and its civil law regulation seems to be extremely inadequate, this being one of the reasons why all relevant regulations are so ineffective. The article offers author’s proprietary developments in the field of bankruptcy tort and certain new provisions to be included in the Bankruptcy Law.
Keywords: insolvency (bankruptcy), bankruptcy tort, intentional bankruptcy, fictitious bankruptcy
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A.A. Glushetsky Fractional shares as an element of authorized capital
This article studies the reasons why fractional shares appeared in civil circulation. The author sums up nine years of experience of using fractional shares in Russian corporate practice and identifies the areas where their use is the most wide spread. The author provides reasoned objections to the idea of indivisibility of shares; he proves that stock split does not result in split of the entirety of rights certified with such shares. The relation between fractional shares and shareholders’ rights is studied.
Keywords: fractional shares, divisibility of a share, types of corporate rights, status and investment corporate rights, par value, conversion factors and distribution of shares, reorganization of joint stock companies
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D.V. Pleshkov Qualification requirements to members of the board of a joint stock company
Whether or not the interests of shareholders, as well as those of third parties will be achieved depends on the professionalism of members of the board of directors. Nevertheless, the procedure of their election is poorly governed by Russian law. The author justifies the need for legislative consolidation of specific criteria for determining qualification requirements to members of the board of director, as well as for obtaining consent from candidates for this body to be included in the joint-stock company's management board.
Keywords: Joint-stock company, members of the board of director, qualification requirements
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M.L. Galperin Policy of law and principles of enforcement proceedings
In the recent years, active discussions have been held about the ways of development of the national enforcement system, which is particularly topical in view of the position of international courts. In this discussion, the idea that the Enforcement Code of Russia should be adopted sounds more frequently and more persistently. The author attempts to evaluate the main directions of the state policy in the field of enforcement proceedings, its system, objectives, tasks and principles at today's stage of development of the legal system, and dwells on the ways to achieve a qualitative increase in the efficiency of enforcement proceedings.
Keywords: policy of law, enforcement proceedings, civil procedure, principles of law
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I.V. Nevzorov The problem of inadequacy of double compensation for infringement of intellectual property rights
This article comments on the main trends, whereby courts of arbitration adjudicate double compensation for violation of intellectual property rights, as well as on impossibility to reduce such compensation based on any actual mitigating circumstances. The author reviews the discrepancy between the existing regulation and the constitutional principles of adequate liability, and international practice.
Keywords: intellectual property, copyright infringement, double compensation
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E.E.Tsentrov Procedural law in the light of integration and differentiation of criminal science and criminal procedure
Criminal science and criminal procedure are interconnected. Their connection is natural and indissoluble, and is based on the realities of investigational practice. Artificial separation can result in more unavoidable procedural theoretical errors and mistakes. Evaluating attempts to separate criminal procedure and criminal science from a critical perspective, the author emphasizes the key role that the proof theory plays in the development of these two branches of legal science, and defends the idea that adversary proceeding does not excludes, but supposes that the truth will be found out.
Keywords: criminal science, criminal procedure, adversary proceeding, proof theory, finding out the truth
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Foreign experience

I.R.Medvedev Request to admit in U.S. civil process: the nature of the institution and requirement to questions
This article dwells on the request to admit stipulated as an independent means of discovery by Rule 36 of the U.S. Federal Rules of Civil Procedure. The author analyses its nature, certain peculiarities of regulation, and disputable aspects of the requirements to questions to be included in a request to admit.
Keywords: civil procedure in the United States, request to admit, discovery, judicial confession
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Actual classic