Журнал ЗАКОН

The article examines mechanism of courts’ standard-setting in the Russian Empire with its core in the Directing Senate (1711 – 1917). Evolution of the mechanism is shown on the different stages of the Senate’s history. It is being proved that standard-setting of courts has been initially inherent to the work of the Senate with its final institutionalisation taking effect only after the Judicial Reform of 1864.

The article focuses on the problem of choosing the optimal model for protection of civil rights in the view of the legal policy and especially of the economic analysis of laws. First sequence of the article deals with the main reasons for and against purely compensational protection which provides frames for protection of proprietary, contractual, corporate as well as other civil rights only by indemnity claim. Author maintains the opinion that the compensation model set as a single way to protect civil rights by positive law fraught with danger of turning the civil rights into a phantom for it gives to any person essential possibility to take away or to violate the right in the situation when profit of violation is more than expected amount of losses that a victim could prove in court. Taking into account the Russian legal situation the present problem is one of the most critical as for proving of losses in Russian courts. Second sequence of the article consists of general conclusions of the first sequence applied to the topic of the optimal model for protection of contractual rights.

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Keywords: protection of civil rights, obligation, indemnification, contract

Current Russian legislation does not provide for the effective legal mechanism of protection of investors’ rights allowing the investors to file a civil action against insider for recovery of damages, caused by so-called “insider trading”. One of the major problems concerning the civil liability of the insider is the determination of the person (investor) who is entitled to sue insider for damages caused by “insider trading”. The classical theory of civil liability (“privity approach”) seems to be not applicable to insider trading cases since the deals on the financial markets are of “impersonal” nature and so it is impossible to determine which particular person was the party to the “insider trading” transaction and suffered respective damages (losses). This article addresses some doctrinal approaches and theories of “civil liability for insider trading” which are used in foreign jurisdictions in order to determine the persons (investors) which are entitled to sue insiders for damages caused by the “insider trading.

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Keywords: insider information, insiders, protection of investors’ rights, unlawful use of insider information (insider trading), civil liability, private right of action, recovery of losses, unfair advantage theory, contemporaneous trading approach

This article analyses the problem of competition between different types of responsibilities and jurisdiction - situations where the general jurisdiction court or commercial court case has signs allowing its simultaneously attributing to different varieties of jurisdiction. The article presents criteria to distinguish between the types of overlapping jurisdiction and general jurisdiction for us to identify the judicial authority competent to examine a particular civil case.

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Keywords: jurisdiction, conflict of jurisdictions, types of jurisdiction