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Декабрь 2011




Chief editor’s column


Interview of the issue

Karapetov А.G. In recent years, Russia’s Supreme Court of Arbitration has advanced Russian private law much further than it may have been achieved by re-codification.
Artyom Georgievich Karapetov, professor at the Russian School of Private Law answered questions asked by the LAW magazine’s editor-in-chief Yan Piskunov.
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The Event. Comments of the Experts

Russia in WTO: legal consequences
Work group for Russia’s accession to WTO recommended to admit Russia to the organization and determined conditions for such admission on November 10, 2011. WTO’s ministerial conference is expected to formally approve this decision on 15–17 December, whereas Russia will only have to ratify the relevant package of documents. Entry to WTO will be an important step towards Russia’s economic development designed to encourage foreign investment. How may these events affect our country’s legal framework? What changes could be expected in national legislation and legal system in general? We asked our experts to give their assessment of this step.


News of the community

Yakovlev V. F. Civil Code protection against haphazard unsound changes - extremely important task
Veniamin Feodorovich YAKOVLEV, Chairman of the Board of the Private Law Research centre answered the questions asked by the LAW magazine's publisher Aleksey Belousov
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Topic of the issue

Kalyatin V. O. Will Russia's intellectual property laws become attractive to investors?
The article considers the problems faced by intellectual property legislation in creating international financial centre in Russia, as well as prospectives of its reforming. In general, Russian laws in this area comply with today's requirements but there are issues that require a speedy resolution. Will they create a favourable atmosphere for investors? We expect to have an answer to this question in the coming months.
Keywords: intellectual property, Internet, free licenses, patent legislation
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Goltsblat A. A., Allan S. Russia as international financial centre: components of success
In authors' view, the uppermost transformations Russia needs to create IFC include changes in its visa and customs regulation systems. Reforms in civil legislation and corporate law, in particular, are also an essential prerequisite of this activity. Also, Russian companies should adopt internationally accepted accounting and reporting standards.
Keywords: international financial centre, investment, corporate law, financial market standards
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Bruk K.V., Kolini G. S. Legal regulation of financial instruments in Russia and investment regime
This article considers both certain positive changes in Russian legislation in recent years that facilitated liberalization of investment regime and financial market development, and legal deficiencies and shortcomings.
Keywords: foreign investments, liberalization, shares outstanding in international markets, strategic societies, financial instruments, WTO
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Usoskin S. V. Moscow as international financial centre: resolution of cross-boundary monetary disputes
The article covers certain procedural problems associated with considering cross-boundary monetary disputes. Various grounds for international acknowledgement of judgement delivered by Russian courts are analyzed. With regard to share-related disputes considered by commercial arbitration the article examines questions of dispute arbitrability, as well as the procedure and form of entering arbitration agreements.
Keywords: execution of court judgements, reciprocity principle, international arbitration
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Kuznetsov A. N., Murzin V. E., Shaftan M. G. Tax aspects of creating IFC in the Russian Federation
A competitive tax system is one of the main prerequisites of attracting investments. This article summarises main issues in taxation of financial transactions and institutes in Russia, as well as changes in fiscal policy and tax legislation that are necessary for Russia's development as an international financial centre.
Keywords: taxation of investments, fiscal policy, international financial centre, financial instruments, administration of taxes
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Selivanovskiy A. S. Managers in financial markets: conflict of interests
Managers in financial markets are obliged to avoid conflicts of interests which are fairly frequent in practice and sometimes expose clients to considerable material damages. In fact, clients are practically deprived of chances to protect their rights against infringement. The author expresses his opinion on possible guidelines for updating the legislation in this area.
Keywords: manager in financial market, managerial responsibility, conflict of interests, disclosure of conflict of interests information, self-regulated organizations in securities markets, protection of investors' rights, MiFID
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Theory and practice

Zavyalov A. A., Usovich L. V. Guidelines for reforming laws on cadastral accounting, state registration of property rights and related transactions
The article considers problems associated with improving government regulation of real estate turnover. The authors think that the system of government registration of real estate rights and cadastral accounting is liable to reforming and propose main guidelines for such reforms. Administrative pressure on market should be reduced, and the level of government guaranties (in particular, the level of regulators' responsibility) should be increased. Reforming the system of government registration of rights is impossible without simultaneously changing a number of Russia's Civil Code regulations according to the Framework for civil law improvement.
Keywords: government registration of rights, cadastral accounting, real estate, in rem rights, cadastral activities
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Bulgakov D. A. On inadmissibility of dispossession through reversal of effective judgements: European practices
Whereas judgements that have come into effect are invalidated on grounds of unclear rules vaguely established by legislators the right to legal aid becomes delusional. Reversal of effective judgements on recognition of proprietary rights may result in breach of the legal specificity requirement, the right to justice, and Art. 1 of Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms. Supervisory procedure should be designed rather as a finalising link in the chain of internal remedies available to parties than an extraordinary means of reopening litigation case.
Keywords: supervisory procedures, ECHR (European Court of Human Rights), proprietary right
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Tarasova A. E. In search of balance of interests - eternal problem of shared construction
The article contains an integral analysis of recent changes in the Housing legislation of the Russian Federation concerning participation in shared construction and developers' insolvency (bankruptcy), and legal position of the Supreme Court of Arbitration of the Russian Federation stated in Plenum's Resolution No. 54 dated 11/07/2011 "Some aspects of resolving disputes arising from agreements concerning real estate that will be created or purchased in future". The author considers contentious issues related to legislative innovations and the SCA Plenum's clarifications as to issues that may become apparent in practice, subject to existing and potential schemes used by developers to fraud participants of shared construction with reference to specific legal cases.
Keywords: shared construction, completion of apartment houses, developer bankruptcy, future real estate purchase/sale agreements, accommodations
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Nuraliev B. G., Puschin V. S., Salimov A. R. Supporting development of franchising in Russia
The article focuses on substantial changes in Chapter 54 "Commercial concession" of Russia's Civil Code that enable resolving several matters of principle related to promotion of franchising in Russia.
Keywords: franchising, franchising agreement, government registration of agreements, trademark, franchise
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Gurin N. V., Novitskaya A. A. Creating man-made estates within the boundaries of water bodies in federal ownership. Suggestions for legislation improvement
The article analyses provisions of the Federal Law No. 246-AZ dated 07/19/2011 "On man-made estates created within the boundaries of water bodies in federal ownership..." and considers various issues related to their creation and further engaging in civil turnover. The authors address similar Germany's experience.
Keywords: water body, artificial estate (land lot), earth-filled territories, construction
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Kinyov A. Yu. Federal Antimonopoly Service's experience of organising contest "Best anti-competitive agreement cases"
The article considers Federal Antimonopoly Service's experience of organising method learning activities, including carrying out contests of best anti-competitive agreement cases; it provides examples of most typical cases under Art. 11 and 16 of the Federal Law No. 135-FZ dated 07/26/2006 "On protecting competition"; it also provides an analysis of the 2008-2010 results achieved in the area of methodological support for activities designed to counter anti-competitive agreements.
Keywords: public competition (tender), anti-competitive agreements, best cases of Russian FAS (Federal Antimonopoly Service), antimonopoly legislation, unannounced inspections, antimonopoly service, cartels
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Foreign experience

Khabarov D. I., Ermololina D. E. Deceptive registration of trademarks similar to widely-known trademarks in relation to dissimilar products: international and Russian practices
Deceptive registration of well-known trademarks, particularly, in relation to dissimilar products and services is a problem faced by numerous rightholders. The authors analyse legal mechanisms designed to combat deceptive registration of well-known trademarks. They cite European and Russian courts' practical examples, and provide an analysis of criteria for recognising well-known trademarks' registration as deceptive.
Keywords: registration of well-known trademarks, unfair advantages, customer misrepresentation, Paris Convention for the Protection of Industrial Property
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Kanashevskiy V. A. License agreements in foreign legislations and practices
This article touches upon issues associated with qualification of the term "license agreement", examines types of license agreements, their form, essential conditions, license types in foreign legislations and practices.
Keywords: license agreement, intellectual property, trademark, invention, quality audit, royalty, exclusive license, open and global licences, license agreement form
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The list of materials published in the magazine