ARCHIVE FOR 2012 RUSSIAN
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Октябрь 2012
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Berezovskij vs Abromovich: complications of English justice August, 31 the Judge Elizabeth Gloster announced a decision on the most notorious English case with a substantial Russian element: claims of Mr. Abromovich to Mr. Berezovskij are dismissed. Later Berezovskij refused to appeal.
Is the outcome of a dispute unexpected to you? Whether there are in decision conclusions — judicial or factual, — with which you disagree? Which aspects of this dispute are most the interesting for you? With such questions we turned to the experts.
Topic of the issue
Tormagova Y.A. Prospects of abrogation of the law «Concerning Natural Monopolies»: assessment of legal consequences Antitrust law is in step with the time: the fundamental law in this area — Competition Law suffered already the third set of amendments. A t the same time special legislation regulating natural monopolies activity does not change so dynamically, that generates many reasons for criticism on the part of Federal Antimonopoly Service, up to offers to repeal the Law concerning natural monopolies as obsolete. The regulators may have different views on the reform and approaches to it. The author of this article offers readers own view of what proposals concerning issue of reforming law on natural monopolies are currently on the agenda, whether it is necessary to save special legislation and in what one or another way of its modernization can result.
Keywords:
natural monopolies, Competition Law, reform of the antitrust law, collisions of legal regulation, Federal Antimonopoly Service, Federal Tariff Service
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S.A. Svirkov Legal status problems of technological infrastructure organizations in electric-power industry The article analyzes the features of legal status of technological infrastructure organizations in electric-power industry. Existing gaps of status construction of electro network organization set in the current legislation are determined. Approach, which found its way into legislation, according to which technological infrastructure facilities are provided to network organizations on a sole source basis is come under criticism, as it hampers competition in the growth of competition in the branch. Instead, they propose and justify from the legal position concessional model of technological infrastructure, which provides granting of electro networks to managing organizations in confidential management on competition basis.
Keywords:
electro network organization, technological infrastructure in electric-power industry, services on transmission of electrical energy, Unified National (All-Russian) electric main
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Judicial practice. Comments
Returning judicial expenses Organization has laid an action in a court of general jurisdiction, when filing an action a state duty was paid. The case passed a judgment, claim is sustained partially. The issue on judicial expenses is not settled by court judgment. Court decision has already taken legal effect and brought to execution. How to collect judicial expenses?
Theory and practice
M.S. Patsatsiya On the problems of implementing the principle res judicata when appealing judicial decisions on the basis of Part 3 Article 320 SPC RF In civil process the issue of right to appeal judicial decision for persons not involved in the case, on the rights and obligations of which such decision was adopted, is very versatile. In this article that its problematic side is analyzed, which is associated with real ensuring observance when realizing by them of this procedural laws the principal res judicata in the aspect of legal certainty — given legal regulation and arbitration proceedings practice, as well as taking into account interaction of procedure in the courts of general and arbitration jurisdiction.
Keywords:
civil procedure, appeal, principal res judicata, SPC RF
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S.L. Budylin What does the court do? Courts law making and judicial precedent in Russia It was traditionally thought, that courts in Russia do not have law making functions, except for, perhaps, SAC Plenum and SC RF. This point of view has seriously gone out of date, at least in terms arbitration courts. In recent years, judicial precedent is gaining increasingly evident importance in the arbitration justice system, especially by the efforts of SAC RF but also with some participation of federal legislator. At the same time the system of general jurisdiction courts in this sense, has remained almost in the original position. The article deals with law-making role of Russian courts and its evolution contemporary Russian history.
Keywords:
law making, Supreme Arbitration Court, Supreme Court, Constitutional Court, ЕСПЧ, Plenary Decree, Presidium decree, disclosure letter, precedent, retroactive force, legal proposition, legal norm, parallel imports
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E.V. Mohova Center of main interests of the debtor in cross-border insolvency: prospects of introduction new legal structures in Russia The article deals with cross-border insolvency issues, problems, that cross-border bankruptcy of large companies’ put before law maker and executor of law. The article considers foreign experience of legal regulation of such legal relations, the possibilities of its use in the Russian Federation. Particular attention is paid to special category — center of main interests of the debtor as the criterion for commencement of proceedings on cross-border insolvency. The author draws attention to the advantages and disadvantages of such criteria revealed by law enforcement practice — members of the European Union, as well as to the prospects of its use in the Russian model of cross-border bankruptcy regulation, the development of which is carried out currently within the framework of the draft law.
Keywords:
cross-border insolvency, bankruptcy, applicable legislation, contract statute, insolvency statute, international jurisdiction, lex fori concursus, regulation competition, center of main interests of the debtor
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V.A. Ponomorenko Federal Law № 86-ФЗ — an important step on the way to e-filing Basing on the analysis of the existing points of view and foreign experience the author defines content limits of the concept «e-filing». One of the conditions for innovation introduction the need to modernize judicial procedural form and doctrinal study about it is recognized. As positive consequences of introduction e-filing the author forecasts the possibility to depersonify the information on the composition of the court, to introduce exterritorial jurisdiction of the subject matter and simplify access to justice (in general and arbitration courts) through the implementation the «one (electronic) stop shop» principal.
Keywords:
e-filing, judicial form of action, summary proceedings, computerization
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V.S. Nikulina Protection mechanisms of world known trademarks in the context of obligations of TRIP agreement. A comparative analysis of member states practice This article attempts to make a comparative analysis of protection systems of world known trademarks existing in states — WTO members. Such systems may be based both on similarity criteria till point of confusion (confusion), and on dilution criteria (dilution). The author evaluates the effectiveness of such legal mechanisms in the context of maintaining a competitive balance on the national markets and fulfillment of international obligations imposed by Article 16(3) TRIPS. Taking into account Russia’s accession to WTO and spread of obligations at her, stipulated by named article, the author analyses the approaches of Russian courts to solution of marked issue in order to develop optimum alternative of regulation in the field of world known trademarks considering Russian legal realities.
Keywords:
TRIPS, international regulation, world known trademark, brand, dilution, confusion similarity
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G.V. Senyuk Interests in the joint-stock company and their protection In the presented article the author makes an attempt to determine the concept of interest in the joint-stock company, as well as the development directions of responsibility institutions of majority stakeholders for wrongful violation of legitimate interests of minority stakeholders.
Keywords:
joint-stock company, collateral actions, parent company, Sub Company, majority stakeholders, minority stakeholders, removal of corporate veil, responsibility in corporations law
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Foreign experience
A.V. Tomsinov Reasonableness of measures, taken to mitigate the damage done: the experience of England and US The article is devoted to one of the main rules governing the recovery of damages, — consideration of measures, taken by the creditor to reduce the damage caused to him. The author analyzes judicial practice of England and USA, which has generated answers to almost all questions arising in connection with assessment of given actions. Using precedents it is shown, to what extent in this area one have to rely only on the notion of judges on reasonableness and fair.
Keywords:
mitigation of damage, compensation of losses, law of England, law of the United States
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