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ARCHIVE FOR 2015    RUSSIAN

Апрель 2015

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

G.A. Gadzhiev. “The judge must think about economy”
Gadis Abdullaevich Gadzhiev, Judge of the Constitutional Court of the Russian Federation, replies to questions of „Zakon.ru“ Project Manager Vladimir Bagaev
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The Event. Comments of the Experts

Departmanental rulemaking in view of rights protection
Judgment of the Constitutional Court of the Russian Federation of 31.03.2015 No. 6-П following the petition of “GAZPROM NEFT” (OJSC) has become one of the most discussed. Not only the assignment of normativity to official explanatory statements of ministries and agencies but also issues of efficient protection of rights of individuals affected by such statements have induced bitter disputes. Judges having dissents in the case gave their voices for challenging the official statements of such kind as provided for challenging non-regulatory acts whereby the rights of an applicant can be thoroughly protected with help of this mechanism. Are you of the opinion that the legal protection of rights of citizens and organisations could be more efficient with the challenging of official statements as provided for challenging of regulatory acts? Which procedural mechanism of realisation of the Judgment of the Constitutional Court could be the most appropriate?
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Topic of the issue

R.S. Bevzenko. Topic of the issue: common problems of the real estate turnover in Russia
Author undertakes a research on the general provision of the Russian Civil Code on state registration of rights to property, which is the basis of the modern real property turnover in Russia, and addresses issues of its applicability to other objects of civil rights. Special emphasis is laid both on the principle of enlisting as one of the pillars of the Russian system of property rights registration and on the sheer novelty in this sphere of legislation — the note of objection to the registered title. Possibilities of challenging the registered title, peculiarities of challenging the actions of registration officer as well as recovery of losses inflicted by his actions are described.
Keywords: real estate, state registration of rights, principle of enlisting
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E.A. Leontieva. Heritable building right vs tenancy
Author analyses main elements of the heritable building right, suggested by the Russian legislator as a substitution of existing practice of tenancy as a legal foundation for construction at a land plot belonging to other persons. On the basis of application of foreign laws and regulations the article provides an assessment of the benefits arising from the right of superficies compared to the right of tenancy. Author also explains reasons of high efficiency of the institute of superficies as well as discloses the ratio between the right of superficies and the right to a building.
Keywords: heritable building right, land plot belonging to other persons, property rights, tenancy, real estate, law of estate, civil legislation reform
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M.V. Bando. On the qualification of the list of persons retaining a right to use premises after its acquisition by a buyer as the essential term of the residential purchase and sale agreement
The literal application of item 1 of Art. 558 of the Civil Code may lead in some cases to an unfair result — declaring a contract void contrary to the interests of the conscientious party. The author considers three main ways to overcome such a result: refusal to recognise a contract void referring to the regulations on abuse of right; giving up the literal interpretation of item 1 of Art. 558 of the Russian Civil Code; cancellation of the noted norm.
Keywords: residential purchase and sale agreement, essential terms, recognition of a contract void, abuse of right
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S.V. Savina. Turnover of “apartments” as residential premises: ways to modernise the legislation
The article touches upon legal issues referring to real estate facilities for temporary accomodation named “apartments”, which are constructed by developers and bought by individuals for lodging. Grounds for problems of legitimate turnover of apartments as well as main approaches for improvement of laws to solve the problem are also analysed in the article.
Keywords: real estate, apartments, residential premises, non-residential premises
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V.V. Sharapov. New ways of taking lands for public use in view of protecting the rights of out-of-the-register property owners
We are used to the fact that property is an absolute right and its protection is duly guaranteed by the Constitution of the Russian Federation. Meanwhile, new rules of lands acquisition for public use in Russia, having entered into force on April 1, 2015, may provide conditions for violation of this initial civil law provision. The author touches upon legal risks that could be faced by owners and titleholders who have registered their ownership before the introduction of the Unified State Register of Property Rights and Transactions.
Keywords: land plot, real estate, eminent domain, compulsory purchase, state needs, state registration of rights, register of property rights, guarantee of the owner’s rights
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GARANT

A. Aleksandrov, A. Chernova. What if delivery is delayed until earlier debts are settled
Experts of GARANT Legal Consulting Company Anastasiya Chernova and Alexei Aleksandrov explain whether the supplier is entitled to delay the delivery of goods because of the buyer’s debt arising of non-performance of other supply contract.

 

Theory and practice

G.V. Tsepov. Getting out of the methaphorical mist, or Liability of controlling person to creditors of a company
The article is devoted to theoretical and practical issues of veil piercing and enterprise liability. The author concludes that limited liability principle is to be respected and controlling shareholders are to be subsidiary liable for the company’s debts only in case of their fault. To support this thesis the author refers to the principle of value maximisation of production and considers company as a tool for decreasing uncertainty of the future.
Keywords: limited liability, subsidiary liability, enterprise liability, controlling shareholder, piercing the corporate veil, entrepreneurial risk, creditor’s rights
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P.A. Windel. The meaning of the European Convention on Human Rights in terms of private law
European Convention on Human Rights has deep meaning both for public and national substantive and procedural law of member states of the European Council. Jurisdiction of member states is now defined in terms of the increasing judicial significance of the European Court of Human Rights decisions. This means that judges of member states, when interpreting private and civil procedural law, are to apply Convention, its additional protocols and ECHR practice as an “interpretation tool”.
Keywords: European Convention on Human Rights, European Court of Human Rights, Council of Europe, Private Law, Civil Procedural Law, case law, tools of interpretation
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S.V. Glandin. Is it open for Russian courts to grant interim remedy like the English world freezing injunction?
One of ‘the law’s two nuclear weapons’ celebrates its 40th anniversary this year. The USA declined to avail such remedy to its plaintiffs. What about such civil law country as Russia? Subject to the provisions of the Russian legislation, they shall be exercisable by the Commercial court being a jurisdiction to grant the same type of interim remedies, as those recognised in England and Wales. In the context of lacking precedent examples, author comes to the conclusion that it is open for Russian applicants to apply to the Commercial courts for an interim remedy like the English WFI. However the Court cannot grant such a remedy voluntary, therefore a path-breaking applicant is wanted to first ask the Court to do so.
Keywords: English law, interim remedy, injunction, world freezing order
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A.V. Kuzmina. Arbitration clauses in adhesion contracts: problems of civil and procedural law reform
The issue of legalisation of arbitration clauses in contracts of adhesion for resolving any disputes is discussed in the frames of the Arbitration Legislation reform. Author examines the problem of inclusion of arbitration clauses in contracts of adhesion de lege ferenda.
Keywords: adhesion contract, unfair contract terms, arbitration, the arbitration clause, civil and procedural law reform

 

A.N. Zakharov. Issues of application of “other” grounds for corporate control
The Civil Сode directly states that a portion of share capital and an agreement can be a ground for identification of corporate control (recognising two companies as parent and subsidiary). Meanwhile the list of grounds for corporate control is open-ended and any factual circumstances might be determined as corporate control up to court’s discretion. Author discusses such grounds of parentsubsidiary relationships as authority to issue mandatory requirements, indirect participation, negative control, and shareholders’ instructions to members of board of directors as well as other grounds developed in court practice. It is emphasized that court’s discretion based on rules of law and higher courts guidelines would provide for flexibility which is essentially needed to fairly resolve disputes and avoid too formal approach.
Keywords: grounds for parent-subsidiary relationship, holding relationships, mandatory instructions, corporate control

 

Foreign experience

J. Gernandt, N. Elofsson. New initiatives to further increase the attractiveness of Stockholm as the seat of international arbitration
The article describes how practitioners from around the world and the SCC Arbitration Institute as well as Swedish courts and the Swedish government collaborate and have taken several initiatives to ensure that Stockholm will remain a leading center for international dispute resolution. Recent initiatives include the revision of the Swedish Arbitration Act, the revision of the SCC Arbitration Rules, new court guidelines for the challenge procedure, introduction of emergency arbitrators, and increased publishing of legal resources in foreign languages, including Russian. It should also be emphasised that the parties themselves can agree to tailor the proceeding in a matter that suits their needs and the arbitral tribunal, as long as it is within the fundamental rules and regulations of arbitration.
Keywords: arbitration, international arbitration, the Arbitration Institute of the Stockholm Chamber of Commerce, the SCC Arbitration Rules
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