ARCHIVE FOR 2015 RUSSIAN
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Январь 2015
CONTENT
FREE TRIBUNE
D.I. Stepanov Interests of Corporation and Its Shareholders Legal entity as an artificial creature made by law has no own interests and the only interest that matters in corporate law is the interest of legal entity participants. Since shareholders have heterogeneous interests varying from one group to another and those interests may change in the course of time the author argues that the notion of interests of any legal entity is case-specific and may change dramatically over the lifetime for any given corporation. Moreover, there are no universal interests to be protected by corporate law, instead courts and law-makers tend to introduce narrowly tailored protective mechanisms which may protect minority shareholders in one instance and negatively affect them in others. The only one reason to employ the term «interests of legal entity» is to highlight whose interests are protected by a given rule of corporate law mechanism and how this rule should be enforced. Finally, in any policy related debates (e.g. in what extent, who and how should be protected by corporate law) we cannot rely on the interests of any specific group of shareholders: since most people of groups of three and more face voting paradox and unable to aggregate their preferences without any dictator (in Arrowian sense of social welfare function), law makers tend to make their choices based on Pareto efficiency criteria and constrained by current political environments.
Keywords:
interest of corporation, shareholders' interests, majority principle, preferences, Arrow's impossibility theorem, voting paradox, preferences aggregation, cyclical preferences
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A.V. Ageev. Certain Problems of Potestative Conditions The article examines how contracts and obligations are affected by potestative conditions and other events that depend on parties to the contract. Such conditions create various problems: uncertain position of the parties before a condition is fulfilled, the risk of unjust enrichment of, and exercise of arbitrary power by, the person who could influence the fulfillment of a condition. The paper considers the possible ways of protecting the rights of party to the contract affected by the actions of a person having control over a potestative condition. The author argues that in most cases rendering potestative conditions invalid is not an adequate way of protection. Effective legal result can be achieved by using softer means. The first part of the article, which is published in this issue, includes a comparative study of the regulation of potestative conditions in different countries.
Keywords:
potestative condition, potestative right, conditional obligation, conditional contract, civil law remedies
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K.A. Novikov. The Accessory Nature of Security Instruments and Other Methods of Security The article explains the accessory nature of security instruments. The author concludes that functional dependence (i.e. accessory nature) on the principal debt is the essential characteristic of any security instrument. That is why those legal instruments that, although aimed to secure obligations, do not have this characteristic should be named differently — e.g. security-motivated or security-oriented instruments.
Keywords:
obligation, security, accessory nature, causa, motive
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Ph.A. Tasalov. Current Antitrust Problems of Corporate Procurement The article shows that the absence of a legal theory on corporate procurement to state owned corporations, monopolies and other companies, as well as inconsistent antitrust legislation cause unwarranted government interference to corporate procurement. Current legislation does not take into account fundamental differences between state and corporate procurement procedures related to their participants and goals. This leads to contradiction between arbitrazh courts judgments and decisions of the Federal Antimonopoly Service on administrative disputes between bidders and corporate bodies.
Keywords:
corporate procurement, antitrust law, bidding, competition
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T.S. Krasnova. Servitude Types: Foreign Experience and Draft Amendments to Russian Legislation The article analyses various types of servitudes in foreign law as well as in current and proposed Russian legislation. In that context the author explores the concepts of iura in re aliena, land burdens and real obligations, numerus clausus principle and correlation of ownership and other property rights. Article considers two additional problems. First, what is the place, if any, of so called «positive» obligations among other types of servitudes. Second, whether it is worth preserving the classic model of servitude in modern law.
Keywords:
servitude, real rights, ownership, numerus clausus, real obligations and «positive» obligations
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