Журнал ЗАКОН

Arthur Olegovich PARFENCHIKOV, Director of the Federal Bailiff Service, answers the questions of Yan Piskunov, Chief Editor at LAW magazine.

The Investigation Committee of the Russian Federation prepared a draft law on reinstating the objective truth principle in the criminal process. The draft law is published on the Investigation Committee’s website for public review. Head of Investigation Committee Alexander Bastrykin believes that just conviction is only possible on the basis of true knowledge of offence circumstances; therefore, such reinstated institution will ensure the constitutional guarantees of justice and improve the degree of confidence in courts. The legal community opposed this opinion. The Research Advisory Board at the Federal Chamber of Lawyers on April 25 strongly criticized the draft law proposed by the Investigation Committee. The voiced concerns included deviation from the adversarial principle in the criminal process, continuous returns of the case to be reinvestigated and even violation of the presumption of innocence. Is the institution of objective truth in criminal proceedings compatible with today’s criminal process or is it a holdover from the Soviet times? What will be the practical effects of its reinstatement?

Sergey Vladimirovich Alexeyev, chairman of the initial composition of the Federal Arbitration Court of the Moscow Region, answers the questions of LAW Chief Editor Vladimir Rumak.

The article addresses matters related to liability restrictions of foreign states in private law disputes arising from the application of UN Convention on Jurisdictional Immunities, including restrictions on the sovereign immunity and waiver of immunity. The author reviews the changes in the Russian procedural law related to immunity rules applicable to the central bank’s property.

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Keywords: jurisdictional immunity, functional immunity concept, judicial immunity, enforcement immunity, waiver of immunity, state, state-owned property

A growing business activity in cross-border investment sector involves a growing number of disputes referred to the international investment arbitration court. At the same time, the states are increasingly facing new court approaches to what has been long considered as hard-and-fast immunity against enforcement of such court judgments. This article features the latest trends in this area.

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Keywords: international investment arbitration, sovereign immunity, immunity against enforcement, foreign investor protection, bilateral investment agreement

The article looks at guarantees provided to foreign investors in the agreements on raising and protection of capital investments and the methods used to apply such guarantees to protect investors’ rights under the agreement with the state. In this context, the article addresses securities of obligations granted by the state, fair and equal treatment and expropriation limits.

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Keywords: investment arbitrage, foreign investment protection, bilateral investment agreements, expropriation

The author addresses key problems of applying fiscal laws in bringing the state to civil liability with a special focus on the position of the Constitutional Court of the Russian Federation. The article also compares the fiscal and civil legal approaches to regulating cross-industry relations arising from damages caused by the state.

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Keywords: civil liability, state, fiscal law, cross-industry regulation, government authority, wrongdoing, entrepreneur, reimbursement for damages

The article deals with the performance of existing procurement system in Russia. The author stresses the need of its centralization and enhancing specialization and qualification of the bodies involved in the state procurement system and the bodies authorized to handle disputes arising in this sector.

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Keywords: procurement, government and municipal needs, government and municipal orders, legal procedures, administrative procedures

Today’s bilateral investment relations are a standard instrument to protect interests of large investors. Umbrella provisions are used to make attempts at invalid transformation of private legal liability of investee states into international liability. The modern international arbitrage (in particular, ICSID) fails to provide fair justice. The domineering case law of this arbitrage proves to be malpractice. The author proposes practical measures to improve the current legal framework of such bilateral investment agreements and international investment justice.

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Keywords: sovereign liability, International Law Commission of United Nations, “diagonal” investment contract, bilateral investment agreement, umbrella provisions, international investment arbitrage

The article reviews the recent decision by the Supreme Arbitrage Court where the Court directly refers to the estoppel doctrine to substantiate its position. Notwithstanding an undeniable positive effect of accepting such doctrine in the Russian law, the author believes that its application to the case heard by the court had no valid grounds and failed to facilitate a fair dispute resolution.

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Keywords: estoppel, amicable settlement, agreement interpretation, interpretation principles, waiver of rights

An organization is charged with certain violations as it failed to record orders placed in January – March 2012 in its procurement schedules and specified only those orders which were planned for placement in 2Q, 3Q and 4Q of 2012. Is it a violation?

This article continues a series of publications aimed to emphasize conceptual provisions of the applicable Arbitration Procedure Code and its basic development drivers.

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Keywords: arbitration procedure, Arbitration Procedure Code concepts, legal risks, procedural risk theory, adversarial system

This article attempts to view independent professions and a legal and social institution developed in the Western countries and almost non-existent in Russia. The Western case studies show approaches to legal regulation of this sector, criteria of qualifying independent professions and specific treatment and legal consequences of qualifying specific types of activity as independent professions. The article proposes some ideas for making amendments to the Russia law in this context. The article invites readers to discuss the matter.

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Keywords: independent professions, free-lance jobs, self-regulation, self-regulated organizations, private business operations

The article reviews provisions of the draft information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation on specific issues of application of Chapter XI of the Federal Law on Joint Stock Companies and proposes author’s view on legal regulation in corporate control sphere.

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Keywords: joint stock company, corporate control, mandatory offer, legal facts, legal conditions, affiliated bodies

The article addresses the problem of various application of the substantial law by arbitrage courts and courts of general jurisdiction. The author gives examples of various approaches to dispute resolution regulated by the same rules of law and different legal positions of higher courts. The article proposes some ways to overcome such inconsistent application of law.

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Keywords: court practice, arbitrage practice, application of law, legal positions of the Supreme Arbitration Court of the Russian Federation, formal principle of law

The author reviews the applicable legal regime of the bank secrecy and practical matters arising from its application and emphasizes the need to perform a conceptual review of this regime by introducing the system for disclosure of bank secret information under the agreement between the bank and the recipient of the relevant information.

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Keywords: bank secret, confidential information, bank obligations, bank services, credit institutions

The article analyses the requirements to the contents of advertising messages made to promotion of mobile operators’ services by both the Russian law and court practice. The author describes legal aspects of advertising contents provided by mobile operators and the reflection of complete material information in promotional messages, as well as legal effects of failure to provide such information in TV advertising.

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Keywords: mobile operator, advertising, telecommunications services, consumer rights

The article reviews the role of single points of contact in improving administrative procedures and challenges of establishing such services in the EU countries, in particular, Germany, under the European Directive on Services. The article analyses the Russian law on administrative procedures based on the single point of contact approach via multifunctional centers for government and municipal services. The author evaluates the problems of such centers and improvement of administrative procedures on the basis of European practice.

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Keywords: administrative procedures, government services, municipal services, single point of contact services, single point of contact principle, European service directive, single point of address