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ARCHIVE FOR 2014    RUSSIAN

Июнь 2014

CONTENT

 

 

Chief editor’s column

Y.B. Piskunov Editorial Note
The June issue of the “ZAKON” journal is now traditionally dedicated to the St. Petersburg International Legal Forum. Every Forum is a remarkable event in the life of the legal community and this year will be no exception. Forum-2014 did not only preserve the number of its participants but attracted more of both participants and states represented. Issues that we’ve chosen for covering is a shred of those to be discussed at the Forum, and they are quite illustrative. In the “Topic of the Issue” moderators and participants of the forthcoming panel discussions will specify the legal issues of great importance for every state: deoffshorisation, today’s role of an in-house counsel in the company, integration processes in the private law, cross-border insolvencies, problems of the development of labour legislation, building the system of the international inheritance law. Themes of interest for readers will undoubtedly be those brought up in our “Theory and Practice” section: soft law mechanisms, importance of supranational organisations illustrated by the example of the Eurasian Economic Community, recognition and enforcement of foreign judgments, GATT/WTO legal mechanisms for regulating commercial relations, legal regulation of electronic commerce. All these subjects will be widely debated at the Forum-2014. I’m sure that all the discussions will be intense, as always, and the participants of the Forum-2014 will look forward to attending the event in the next year. So let us wish good work to the Forum and fine and full weather to its participants. Yan Piskunov, chief editor of the “ZAKON” journal piskunov@igzakon.ru
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Interview of the issue

A.V. Konovalov Minister of Justice of the Russian Federation A.V. Konovalov. Interview by Yan Piskunov, chief editor of the «Zakon» journal
St. Petersburg International Legal Forum becomes an event which sets trends in legal framework development in the global context

 

The Event. Comments of the Experts

Forum 2014. Tendencies and expectations
The IV St. Petersburg International Legal Forum will undoubtedly become the most important legal event of June. Legal professionals members from the whole world are gathering on the shores of the Neva river to discuss the most topical legal issues. What will they be? Answer to this question is given by some participants of the Forum 2014.
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Topic of the issue

R.I. Ahmetshin Taxation aspects of deoffshorization: international tendencies in sight of Russian reality
Focus on deoffshorization of the economy became one of the key trends of the last year. This topic is considered not only by the authorities and businesses but also by the whole expert community. In the course of the IV St. Petersburg International Legal Forum a panel session upon the topic “Nationalisation of transnational business taxation” will take place and thus let the experts discuss the main questions bothering the sector and being of practical use for Russian and international entrepreneurs.
Keywords: deoffshorization, offshore, transnational business taxation, double taxation avoidance agreements, Model convention on exchange of information, double residence issue, place of effective management
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A.K. Nesterenko Three ages of a legal profession, or the RCCA round-table discussion at the IV St. Petersburg International Legal Forum
The RCCA, strategic partner of the IV St. Petersburg International Legal Forum, is taking part in the round-table “In-house Counsels: Where We are and What is Coming” discussion (Track 2, “Corporate practice”), scheduled for June, 18 and devoted to the changing role of an in-house counsel as a business partner. This article traces the roots and evolution of this topic based on the intense discussions recently held at different platforms.
Keywords: legal profession, legal function, legal management, head of legal department, the Russian Corporate Counsel Association
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P. Varul Principles and model rules of the today’s private law
Development of the economic cooperation between the European states has now brought about unification of European private law. The article covers a range of problems arising from here and being the subject to debate at the “Principles and Model Rules of Modern Private Law: System of Coordinates” session. The dominant topic for discussion will be the practical meaning of the most important modern project dedicated to harmonisation of private law “Draft Common Frame of Reference” (DCFR). Special attention is paid to the Common European Sales Law (CESL) which is being developed on the basis of the DCFR and might become the first case in point for its application.
Keywords: private law, European contract law, model rules, Common European Sales Law, principles of civil law, fairness, optionality, reasonableness
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E.V. Mokhova Cross-border insolvency: Russian legal state and perspectives
The article covers problems of cross-border insolvency and insolvency of cross-border groups which are to be discussed at the St. Petersburg International Legal Forum. Problems and issues of legislators and legal professionals arising from insolvency complicated by foreign element are considered in the context of the world’s largest insolvencies. Author lays special emphasis upon the fact that the lack of legal base does not exclude Russia of such world tendencies as unification and competition of insolvency regulation. Our national legal community faces challenges of exploration of cross-border insolvency, and particularly of international practice in this sphere, with the aim to propose possible solutions to the legislator. Legislator is after all at the point where the need for imposing special rules for addressed legal matters becomes urgent.
Keywords: cross-border insolvency, competition of insolvency regulation, bankruptcy tourism, debtor migration, foreign proceedings, center of the debtor’s main interest
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I.V. Anyukhina, E.V. Rodionova Labour force mobility and transnationalisation of labour relationships: approaches of the Russian law
The article is prepared in connection with the forthcoming round table organised within the St. Petersburg International Legal Forum and is dedicated to the engagement and transfer of foreign personnel in globalised world. It highlights Russian approach to the mobility of employment resources. Authors consider recent legislative changes directly affecting the process of both internal and external transfer of employees. The article is focused on regulation of secondment in Russia as well as on the Russian approach to the temporary agency work. It also covers the changes in migration regulation that should be taken into account in the course of transfer of employees between different jurisdictions.
Keywords: globalisation, mobility, transfers of employees, secondment, temporary agency work, foreign employees, migration regimes
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I.G. Medvedev, V.V. Yarkov Testaments without borders: on the necessity of accession to international treaties of such kind
In view of the broader use of testaments and active worldwide shift of the Russian citizens authors propose a new, previously unknown in our country instruments for revealing last will and for securing the efficacy of its legal form: Convention on the Establishment of a Scheme of Registration of Wills (concluded 1972) and Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (concluded 1961). The consequences of Russia’s accession to them and the role of the notary and of the Federal Notarial Chamber in securing its compliance with them are analysed.
Keywords: last will, notarial system, Convention on the establishment of a scheme of registration of wills, Convention on the conflicts of laws relating to the form of testamentary dispositions
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Theory and practice

A.V. Demin Binary approach vs the relative normativity: on the discussion about the soft law
The soft-law concept is considered in a context of the binary approach vs graduated relative normativity discussion. In sum, the norms, addressed to the relevant agents, can have different degrees of legal validity. In this context the soft law phenomenon should be placed in the “grey zone” between law and non-law.
Keywords: hard law, soft law, binary approach, relative normativity, continuum
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T.N. Neshatayeva On creation of the Eurasian Union: integration and supranationalism
Integration as form of internationalisation of economic relations creates a new type of international organisations — the supranational ones. Developing as a regional phenomenon international organisations of supranational type are effectively functioning on the regional level. History of the Eurasian integration starts in 1995 when the Customs Union and Common Economic Space were established and were then transformed into the Eurasian Economic Union. Taking into account that the successful regional integration is provided by the advanced legal mechanics of a supranational organisation, including the sanctions’ mechanism based on the legal authority, study of the Court’s of the Eurasian Economic Union practice is of special interest for analysis of methods and operation modalities of the Union’s organs.
Keywords: supranational international organisations, Customs Union, Eurasian Economic Union, Court of the Eurasian Economic Union
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V.V. Arkhipov, E.V. Kilinkarova, N.V. Melashchenko Problems of legal regulation of trade of goods in the Internet: from distance selling to the virtual property
Electronic commerce became an integral part of the economy, and it makes special accent on solving problems of the legal regulation of relations in the Internet. Authors assume that the nature of such problems as identification of users, determination of jurisdiction and responsibility of information intermediaries is fundamental, and they manifest themselves in all relationships facilitated through the worldwide information and telecommunication network including the electronic commerce. Global experience shows the overall direction of their solution. Basing on Russian, foreign and international legislation and practice the authors analyse the modern state of legal regulation of merchandise turnover in the Internet considering the World Wide Web as the phenomenon, architecture of which predetermines the system of key legal issues of relations arising in cyberspace as well as the limits and features of their eventual legal regulation.
Keywords: Internet, electronic commerce, distance selling, consumer rights, virtual property, moment of the conclusion of the contract
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R.A. Shepenko GATT/WTO anti-dumping precedents
Anti-dumping actions, one the most disputed spheres of the WTO law, are taken in accordance with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) which states that anti-dumping measures can only be applied under the circumstances provided in the legislation of the WTO member. Regarding a claim, the contracting parties may refer to the legal opinion of GATT Panel, WTO Panel and Appellate Body which play an essential role in successful resolution of commercial disputes. This article presents the analysis of a few GATT/WTO anti-dumping precedents.
Keywords: WTO, disputes resolution mechanism, anti-dumping, WTO/GATT Panel precedents
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D.V. Kaysin The doctrine of international comity and enforcement of foreign judgments in Russia
Author studies the grounds of international comity in historical and theoretical contexts and realisation of this doctrine in frames of the Russian legal system. It is stressed out that reciprocity and international comity cannot be regarded as universally recognised principles of international law or as rules raised to the level of customary international law. It is also emphasised that comity and reciprocity are categories with different subject matters and are in no way synonyms. Based upon Strasbourg’s court precedents the author arrives at the conclusion that neither an international treaty nor reciprocity is required to recognise and enforce a foreign judgment in Russia. Reciprocity requirement is repugnant to the fundamental right to access to court in its contemporary interpretation. Author advocates accession to an international convention which is still to be drafted and broadly debated around the globe.
Keywords: international comity, reciprocity, recognition and enforcement of foreign judgments, right to access to court

 

S. Gabriel, N. Damburgs Recognition and enforcement of judgments of Russian courts in England and Wales
The article considers the issue of recognition and enforcement of judgments of both Russian commercial courts and of Russian courts of general jurisdiction in civil matters, in England and Wales. It also discusses the theoretical bases for recognition and enforcement of such judgments and considers the recent decisions of English courts which touch upon this subject.
Keywords: recognition of judgments, enforcement of judgments