ARCHIVE FOR 2015 RUSSIAN
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Март 2015
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
A new life for the contingent fee? Contingency fee has already been scrutinized by senior courts for several times; still the legal precedence concerning its legitimacy has been inconsistent.
While taking decisionon the appointment of court fees in the case No. A60-11353/2013, the Supreme Court had all chances to clarify all the details. However, the Decision of the Panel of Judges in business disputes of 26.02.2015 has kept the intrigue and was dubiously accepted by law specialists. How would you evaluate the Decision of 26.02.2015? Could the question of legitimacy of the contingency fee in the Russian legal practice be regarded as solved and what are the prospects of its further application in Russia?
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News of the community
Topic of the issue
Yu.E. Tuktarov, S.V. Dubinchina. Environmental projects: impact of changes to waste management law on the development of concession agreements The article analyses practical issues related to the introduction of changes to the regulatory framework in
solid domestic waste management aimed at developing of environmental public private partnerships. Authors address main positive trends in legislation and highlight problems of ongoing and planned investment projects. They analyse consequences of reauthorisation of local authorities (municipal governments) and territorial entities of the Russian Federation, creation of regional waste management operator, changes in price formation and procedure for preparation of concessioners' investment programs as well as the role of regional programs and territorial waste management plans.
Keywords:
public private partnership, environment, solid domestic waste management, concession agreements law
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E.V. Zusman, I.A. Dolgikh. Concession: analysis of key novelties The article focuses on the development of concession legislation, as well as on the latest modifications introduced into the Law on concession agreements in June 2014. Authors analyse key legal developments having the greatest impact on implementation of concession projects, in particular new procedure for conclusion of concession agreement, which is mechanism of private concession initiative, extension of the concession grant or payment to all concession projects, conclusion of a direct agreement in the context of concession projects. The authors highlight problems and prospects for application of the latest modifications for implementation of concession projects.
Keywords:
public-private partnership, concession agreement, private concession initiative, concession grantor payment
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A.V. Belitskaya. Public-private partnership in the frame of the territories with a special regime of entrepreneurial activity Recently some changes have taken place in the Russian legislation in relation to the possibilities of public-private partnership on the territories with a special regime of managing business such as free economic zone of Crimea and the city of the federal importance Sevastopol and the territory of social economic development. The two new forms of such territories which appeared only in 2015 in addition to the already existing special economic zones, zones of territory development and innovation center Skolkovo. Residents of the above mentioned territories gain favorable tax regime, regime of free customs zone, special regime of dealing with foreign employees, less lease rent and others in the frame of the investment project being realised on the territories. Thus the state creates good and special investment climate on the territory and the investor participates in the development of economy of the country.
Keywords:
public-private partnership, free economic zone, Republic of Crimea, investments, territory of priority social and economic development, investment activity, investment
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D.A. Zhmulina. Assets used in public-private partnership projects Legislation on public-private partnership in Russia is under active development. Significant legislative experience
is accumulated which enables transition to its next step assuming a modern system of legal regulation. The need to assess current and draft legislation arises, also in comparative legal aspect, for purposes of compliance with the specifics of the phenomenon. Thus the main objective of the author is a comparative legal analysis of the legal status’ elements of assets used in public-private partnership projects. The author analyses the legislation of Russia, CIS and Europe, including issues of its compliance with the provisions of the UNCITRAL acts which form the legal framework in the field of legal regulation of public-private partnerships. The author notes that the UNCITRAL acts do not set strict limits for the legislator in determining the legal status of assets used in public-private partnership projects. However it is required to apply a liberal approach to the regulation of such relations to increase the attractiveness of public-private partnership projects for private investors. The author assesses the draft federal law No. 238827-6 on the basis of public-private partnership in the Russian Federation and concludes that the Russian legislator has chosen precisely this approach.
Keywords:
public-private partnership, public-private partnership contract, concession agreement, object of a concession agreement
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Discussion Board
A.V. Ilyin. On the content of prejudice as a feature of a judgment's legal force The article explores the issue of content determination of prejudice as a feature of a judgment's legal force. Following the study, author differentiates properties both of bindingness and of prejudice of a judgment's legal force and suggests a new algorithm for determination of the court's boundaries limiting its legal and substantial conclusions made by the court when considering another case involving the same persons.
Keywords:
legal force of a judgment, bindingness, prejudice, civil justice
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Press Release
Theory and practice
K.I. Zaboev. Public authenticity of the Unified State Register of Legal Entities and the will of a legal entity Public authenticity of the Unified State Register of Legal Entities has gained a substantially new meaning in the course of the reform of legislation on legal entities and thus led to a shift of discussion on the legal nature of relations between the director and the legal entity. Author explores the applicability of criteria framed in the practice of resolving claims considering invalidity of transactions conducted by quasi-director in the view of a new legislation field. He also admits four rude faults of development of a legal entity’s’ will at appointment of a sole executive body. Author is of the opinion that proving of each of the faults should lead to a refusal of recognition of legal entity’s consequences of transactions made by such executive.
Keywords:
Unified State Register of Legal Entities, public authenticity, will of a legal entity, representation, quasidirector
K.B. Koraev. Innovations in laws on the citizen-consumer bankruptcy The article examines the rules of bankruptcy of individuals not engaged in entrepreneurial activities, coming into force on 1 July 2015. Author notes that the rules governing the restoration of solvency of the citizen are conceptually verified, whereas those establishing bankruptcy of citizens are not, since they do not achieve the goal of the insolvency institution of excluding insolvent debtors from the sphere of credit consumption. The article also indicates the inconsistency of restriction of citizens’ obligatory action to appeal to the court with a corresponding statement. The author notes that the rules on bankruptcy of individuals establish a new way to enter a bankruptcy procedure according to which bankruptcy of a citizen should be initiated with debt restructuring, which is a restorative procedure.
Keywords:
insolvency, citizen bankruptcy
A.S. Vorozhevich. License agreements and antitrust: experience of the USA and Japan, choice of Russia In the article based on the analysis of American and Japanese experience author substantiates the unreasonableness of antitrust law's extension in the view of licensing agreements. Critics of the amendments to the Competition protection act offered by the Russian Federal Antimonopoly Service adding relations associated with the exercise of exclusive rights to the subject of its regulation.
Keywords:
license agreement, antitrust law, exclusive rights, competition, Antimonopoly Service
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S.S. Kurbatova. Legal regulation of grants in the system of public spendings The article analyses issues of legal regulation of the budgetary grants provision procedure in view of the restated articles 78 and 78.1 of the Budget Code of the Russian Federation amended by the Federal Law of 02.07.2013 No. 181-FZ, according to which public grants are to be provided in the form of subsidies. The research is aimed at finding out the meaning of the term “grant” in relation to a public entity forming its expenditures and the role of a grant in the public spending system.
Author states further development of the legislation aimed at much greater convergence of the legal regulation of subsidies and budget grants, which has actually entailed loss of any tangible specificity of the budgetary grants provision procedure. In terms of a public spending formation, grant fully complies with the feature characteristic for subsidies: gratuitous donation of funds upon the contract for implementation of targeted spending, accompanied by further audits and mandatory reporting on the targeted use of funds. However, analysis of the acts certifying provision of budget grants reveals certain specifics in regulation of this kind of grants, which allows them to purport to occupy special place in the system of classification of budget subsidies.
Keywords:
budgetary grants, public spending, targeted payments, subsidies
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Foreign experience
A.A. Solovyev. Court-ordered alternative dispute resolution procedures in the French Code of Civil Procedure The article deals with the analysis of the French model of legal regulation of court-ordered dispute resolution institutions. Author examines the norms of the French Code of Civil Procedure regulating the general principles of court-ordered dispute resolution, such as the right of parties to seek settlement at any stage of the process either following their own motions or by the court’s advice, freedom of choosing the appropriate method for dispute resolution, verification of the settlement agreement by the court so that the agreement receives the status of court circular. Besides, the article contains a detailed legal comparison of two different forms of court-ordered dispute resolution: judicial mediation (arbitration) which means that the court delegates its powers to achieve a settlement to a mediator designated by the court and mediation which implies choosing a third party to find out the positions of parties and to achieve the dispute resolution based on them.
Keywords:
court-ordered dispute resolution, arbitration, mediation, international experience, Code of Civil Procedure of the French Republic
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