ARCHIVE FOR 2013 RUSSIAN
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Апрель 2013
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Disciplinary Liability and the Issue of Judiciary Independence Issues related to the disciplinary liability of judges have been in the limelight of both the legal community and the society as a whole at various times. Following the decision taken in 2011 by the Constitutional Court of the Russian Federation on the claim of Anzhelika Matyushenko, ex-judge, the issue of a concrete definition of judges’ liability was once again brought to notice, which eventually found expression in a law-making initiative of the Russian Government: on April, 1, 2013 the proposed draft amendment to the Russian Federation Law On the Status of Judges in the Russian Federation specifying the rules of bringing to disciplinary responsibility was moved to the State Duma. The main novelties discussed were introduction of a period of limitations and sanctions with respect to retired judges.
What is your assessment of the suggested system of disciplinary liability? What sanctions, to your mind, will be effective and shall not adversely affect the guarantee of judiciary independence?
These are the questions that we put to the experts.
Topic of the issue
D.M. Shchekin Measures to Counter Off-Shore Tax Evasion in the Russian Tax Law: Prospects for Judicial Practice The article is dedicated to the prospects for elaborating anti-offshore measures in Russian judicial practice. The author reviews domestic practice in comparison with anti-offshore mechanisms applied abroad and internationally, and an emphasis is laid on the measures that may be generated by judicial practice without being enshrined directly in the law.
Keywords:
off-shore zone, off-shore company, anti-offshore mechanism, off-shore levy, prohibition on cost accounting, tax residency, rule of foreign controlled companies
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D.V. Vinnitsky, A.I. Savitsky Russian Legal Framework and the Issues of Business Structuring and Transactions that Feature Low-Tax Jurisdictions The article reviews off-shore measures provided for in Russian and foreign legislations in terms of their sufficiency and effectiveness with a view to combating disinvestment to low-tax jurisdictions. The authors clearly demonstrate that the measures existing in Russian law will not apparently suffice to attain the objectives. At the same time, the national legal framework could be more emphatic when implementing the vast foreign experience, matured and used today as to combating off-shores, – in particular, the rules currently applied for the determination of tax residence, the laws and regulations on controlled foreign companies, as well as the concept of a beneficial owner adopted nowadays at the level of international and interstate agreements.
Keywords:
off-shore, low-tax jurisdictions, residence, controlled foreign corporations, the concept of a beneficial owner
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I.A. Goncharenko Prospects concerning Creation of Off-Shores in the Far East of Russia Based on the analysis of the principles of activity of off-shore jurisdictions, the author has attempted to identify the legal conditions without regard whereto the proposal to create an off-shore in the territory of the Far East cannot be implemented. Meanwhile, the experience currently available is rated as to the creation of zones with hospitable regulatory environment for investors.
Keywords:
off-shore, tax benefits, special economic zones, the Far East
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B.Ya. Bruk Codification of the Beneficial Owner Concept in Russian Tax Law: Problem Statement The article highlights the problems concerning practical application of the beneficial owner concept as a precautionary measure against abusing the provisions of international tax treaties. Besides, the history of the given concept being formed is detailed in the context of the family of common law and its perception by international tax law.
Keywords:
the beneficial owner concept, off-shore, double taxation treaties
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V.A. Kanashevsky On the Law Applicable to Off-Shore Trusts and on the Recognition Thereof Trusts are one of legal instruments attracting business from around the world to off-shore jurisdictions. However, in order to use them effectively, it is important to choose the applicable law and also realize to what extent a trust subordinate to the law of a particular off-shore jurisdiction shall be recognized by other jurisdictions, – first and foremost, the Russian one. In this article the author covers issues related to answering these complicated questions.
Keywords:
trust, off-shores, private international law, applicable law, trust ownership
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Theory and practice
G.A. Zhilin Jurisdiction of Appeal in the Arbitration and Civil Proceedings: Issues of Theory and Practice The article substantiates the necessity to legislatively provide the appeal in the arbitration and civil proceedings with jurisdiction to submit the case to the first-instance court for fresh consideration if the decision was quashed due to material (substantial) violations of the procedural law.
Keywords:
arbitration and civil proceedings, jurisdiction of the appeal, material (substantial) violations of the procedural law, generally recognized standards of justice
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I.V. Reshetnikova Simplified Proceedings. Conceptual Approach The article is dedicated to theoretical legal analysis of a model of simplified proceedings – the new one for the Russian procedural system – in the arbitral proceedings. The distinguishing features of the simplified proceedings in the arbitral proceedings are defined in contrast with writ proceedings and investigation by default in civil litigation. The article covers the conceptual issues and contradictions arising in the course of application of article 29 of the Arbitration Procedure Code of the Russian Federation.
Keywords:
simplified proceedings, fast track procedure, investigation by default, writ proceedings, arbitral proceedings, civil litigation, collision of norms
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A.Ya. Kurbatov Providing the Impartiality of Arbitrators in Past-Arbitration Court Rulings and in the Law This article concerns the criticism of the approach of the Presidium of the Superior Commercial Court of the Russian Federation, according to which the violation of the arbitrators’ impartiality principle is consideration of a case by a court of arbitration established under an entity where one of the parties is an affiliated one.
Keywords:
court of arbitration, arbitration, impartiality of arbitrators, independence of arbitrators, Superior Commercial Court of the Russian Federation
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S.V. Strembelev, Ya.V. Krivoy Consideration of Corporate Disputes by Courts of Arbitration: to Be or Not to Be? This article discusses the subject whether courts of arbitration are authorized to arbitrate certain types of corporate disputes – in particular, disputes concerning stock ownership and shares of participation in companies, as well as disputes arising from shareholder agreements. The article analyses the Russian legislation, as well as the judicial practice of a number of Russian commercial courts. It also describes approaches taken by common-law countries to the arbitrability of disputes arising from shareholder agreements.
Keywords:
court of arbitration, shareholder agreement, arbitrability, corporate disputes, disputes concerning stock ownership and shares of participation in companies, disputes arising from shareholder agreements
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A.V. Ilyin To the Issue whether Administrative Legal Proceedings may exist as a Separate Form of Action This article analyses whether administrative legal proceedings currently exist in the Russian Federation. The author answers in the negative based on the studies of the legal nature of proceedings in cases arising from public legal relationships and proceedings in administrative cases. The article shows arguments substantiating the uncertainty whether administrative legal proceedings may exist as a separate form of administration of justice.
Keywords:
public justice, administrative legal proceedings, civil proceedings, and administrative proceedings
A.Yu. Kinev, N.N. Egorychev, P.V. Samolysov, A.P. Tenishev Cartels. System of Proof and Judicial Practice. The objective of this article is to review the system of proof and the judicial practice concerning cases of anti-competitive agreements. The authors comment on various approaches taken by commercial courts to the proceedings in cases related to violations of the anti-trust law, in accordance with art. 11 of Federal Law No. 135-FZ of July 26, 2006 On the Protection of Competition.
Keywords:
anti-competitive agreements, cartel, concerted anti-competitive action, anti-monopoly authorities, commercial court, law-enforcement authorities, Federal Antimonopoly Service
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A.S. Vorozhevich Venture Capital Contract: Essence, Structure, Problems of Minimizing Risks for Investors This article analyses the essence of a venture contract as a type of an investment one and defines peculiar characteristics of venture funding, which stipulate the scope of a contract so named. It considers preclusions, existing in the Russian legal framework, to conclude such contracts in comparison with the background of crudity of the contractual structure mediating relations of a recipient company and an investor.
Keywords:
venture capital, contractual covenants, enterprise agreements, innovative companies
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