Magazine content за Март 2012 г.
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Март 2012




Chief editor’s column


Interview of the issue

Sorokina I.V. Parties Trust Judges More Than Themselves
Irina Viktorovna SOROKINA, chairwoman of the Omsk Region Court of Arbitration, answers the questions of Aleksey Belousov, the editor of the “ZAKON” (“THE LAW”) magazine.
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The Event. Comments of the Experts

Arbitrability of Corporate Disputes
The beginning of 2012 was marked by an aggravation of a discussion on the arbitration courts’ competence. In the corporate dispute between N.V. Maksimov and OJSC “Novolipetskiy Metallurgicheskiy Kombinat”, it was not ICAC with the Chamber of Commerce and Industry of the Russian Federation (which considered the case in accordance with the parties’ agreement) that drew the line, but state courts, which recalled its judgment, including, in particular, on the basis of non-arbitrability of the corporate dispute. At first, the Constitutional Court of the RF in its Ruling of 21.12.2011 No 1804-О-О and then also the RF Supreme Court of Arbitration in its Ruling of 30.01.2012 No. ВАС-15384/11 agreed with such logic, pleading special jurisdiction of corporate disputes to Court of Arbitrations. Today our experts discuss whether corporate disputes can be a point at issue by arbitration courts.
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Super professional

Muranov A.I. It’s Ridiculous When Qualification Requirements Imposed On Mediators Are Higher Than Those Imposed On Arbitrators
Aleksandr Igorevich MURANOV, Vice-Chairman of the Maritime Arbitration Commission with the Chamber of Commerce and Industry of the Russian Federation, answers the questions of Yan Piskunov, Editor-in-chief of the “ZAKON” (“THE LAW”) magazine.
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Topic of the issue

Ts. A. Shamlikashvili. Modern Civil Legal Aid Gravitates Towards A Cooperative Method Of Interests’ Protection, Not Towards A Competitive One.
Tsisana Avtandilovna SHAMLIKASHVILI, President of the Center for Mediation and Law, answers the questions of Vladimir Rumak, Editorial Director of the “ZAKON” (“THE LAW”) magazine.
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Yarkov V.V. Minimal Standards Of Mediation Settlement And Healing Measures (Presentation Of A Problem)
The article reviews a healing measure through the prism of minimal standards, which should provide the balance of convenience and protection of all its participants. The author’s method is based on the theory of juridical facts and sets of facts.
Keywords: juridical facts, sets of facts, mediation settlement standards, healing measures, mediation
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Zagainova S.K. On Integrated Approach Towards The Mediation Development In Russia
The article is dedicated to actualization of the integrated approach towards the mediation development in Russia, which envisages the building of both, an individual and an integrated model of mediation and inclusion of mediation techniques into the professional competency of lawyers.
Keywords: mediation, individual mediation, integrated mediation, training of mediators, judicial mediation, mediation in notarial activities, mediation techniques
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Abolonin V.O. Commercial Mediation in Russia: Special Development Thrust
Analyzing main processes of the healing measures’ development in some countries, the author identifies several peculiarities of the commercial mediation development in Russia. Among them there is a direct interest in mediation on the part of the state and its active, but often random participation in the process of its implementation, which is conditioned by the desire to resolve a problem of a heavy load on Court of Arbitrations by means of mediation. In the author’s opinion, the proposed introduction in Russia of integrated judicial and obligatory mediation could slow down the existing dynamics of development.
Keywords: alternative settlement of disputes, commercial mediation, judiciary reform, healing measures, law of arbitral procedure
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Zaitseva L.I. Prospects Of Mediation Procedures’ Application In Court of Arbitrations Of The Russian Federation
The article reviews main peculiarities and advantages of mediation, as well as reasons for introduction of this procedure. Special attention is paid to the prospects of application of judicial mediation in the RF Court of Arbitrations’ system. Also the author describes alternative methods of settlement of disputes, which are similar in their essence, to mediation procedures applied abroad.
Keywords: alternative methods of settlement of disputes, serving as intermediary, mediation, judicial mediation, arbitration
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Barashev A.S. Mediation In The System Of Alternative Methods Of Settlement Of Disputes
What are the alternatives to the judicial examination of disputes? What are the main differences between mediation and a judicial examination? Is mediation effective enough at present as a method of settlement of disputes? In which cases mediation should be applied, and when is it contraindicative? What is a mediator and why should he/she be trusted? What are the prospects of mediation in Russia? The author tries to answer these and other questions.
Keywords: mediation, serving as intermediary, ADR, out-of-court methods of settlement of disputes
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Judicial practice. Comments


Theory and practice

Budneva G.N. General Provisions On Statute Of Limitations In Various Legal Frameworks
The article is dedicated to the analysis of legal provisions that regulate the institute of the statute of limitation in various legal frameworks and international treaties. The author reviews various approaches to identifying the norms applied to the issues of the statute of limitations, the order of its calculation, its abeyance and suspension. Special attention is paid to the Russian legislation that underwent considerable changes in the recent years.
Keywords: statute of limitation, limitation period, abeyance and suspension of the limitation period
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Panova I.V. On Application By The Russian Federation Of International Treaties In The Sphere Of Taxation
Through the example of a specific case which was the matter at issue by the RF SCC Presidium, the article covers certain problems of application by the Russian Federation of international treaties related to taxation of Russian companies; analyses the possibility of application in Russia of the international treaties’ norms on the procedure for expense generation during determination of taxable income; the problem of double taxation is tackled as well.
Keywords: international treaties, double taxation, rules of thin capitalization, OECD model convention, European Union Law
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Zhidkova Ye.I. Particular Issues Of Prejudgment Application In Criminal Justice
The law-maker’s new approach to the contents and meaning of the prejudgment institute in criminal justice gave rise to a lot of questions in theory and law enforcement practice. The author reviews this procedural institute in the context of the latest amendments to the criminal procedure law.
Keywords: prejudgment, criminal justice, legal judgment, initiation of a criminal case, tax crimes, non bis in idem
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Boyko T.S. Waiver Of Rights And Abstention From The Exercise Of Rights: The Russian And Anglo-American Approaches
The article reviews the institute of waiver of rights, its aims and principles, from the point of view of the English and American Law. The Russian legislation is analyzed, as well as past arbitration court rulings and doctrines on the issues of waver of the rights. A separate section of the article is dedicated to a foreign point of view on the treaty on abstention from the exercise of rights.
Keywords: waiver of rights, negative pledge, Treaty on abstention from the exercise of rights


Milkov A.V. On The issue of legal regulation mechanism
The article reviews the concept of a legal regulation mechanism and its correlation with the related law categories. Critical understanding of the opinions, expressed in the domestic doctrine in relation to the essence of the legal regulation mechanism allowed the author drawing a conclusion that it’s worthwhile to understand this mechanism as a system of legal instruments with the help of which the impact over the social relations is provided.
Keywords: legal regulation mechanism, legal pressure, legal measures
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Foreign experience

Vishnevskiy A.A. Legal Regulation Of Consumer Crediting In Foreign Banking Law: Results Of The Development
The author addresses tendencies of consumer crediting regulation in the banking law of European counties, that arisen in the past few decades. He assesses main principles, models and institutes of consumer crediting.
Keywords: consumer crediting, consumer protection, credit user/consumer’s rights, relations between a bank and a private customer, consumer of banking services
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Krotov S.M. Maintenance Principles Of The Register Of Rights To Real Property In Germany, Austria And Switzerland
The article addresses the principles that form the basis of the land records’ system. Not only the systems of rights’ registration in Germany, Switzerland and Austria are based on these principles, but the majority of world-wide registration systems as well, with the exception, may be, of the Australian Torrens system. Universality of these principles allows seeing the prospects of the Russian registration system in a comparative aspect and showing actual tendencies of the register’s development.
Keywords: principles of register maintenance, land records, German registration system, rights to real property.
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