Журнал ЗАКОН

Director General of the LCIA Jacomijn J. van Haersolte-van Hof Interview by Vladimir Bagaev, project manager of Zakon.ru

The Civil Code of the Russian Federation has two new articles from the 1st of June 2015: Art. 431.2 on representations and warranties and Art. 406.1 on indemnification commitments. These legal constructions were predetermined by wish for regulation of the practice already established in the sphere of investment, financial and corporate transactions. This brief commentary presents an attempt to analyse the main questions arising from studying the articles.

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Keywords: representations and warranties, losses, recovery of losses

The article explores changes of the Civil Code of the Russian Federation aimed at the unilateral alteration and termination of contracts in comparison to changes proposed to the French Civil Code in view of fixation of the principle of bona fide and reasonable behavior of parties at any stage of preparation, conclusion and execution of a contract as well as acknowledgment of the necessity of protection of the weaker party by both codes.

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Keywords: unilateral alteration of contract, unilateral termination of contract, protection of the weaker party, French Civil Code

The article is devoted to the analysis of priority between several security interests in case of securing future obligations. Is a secured creditor entitled to “reserve priority” in advance, i.e. before the secured obligation is established? Does the answer depend on the fact whether the security interest is subject to the registration? The author addresses inter alia to the foreign experience reflected in DCFR and UNCITRAL Legislative Guide on Secured Transactions.

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Keywords: proprietary security interest, priority, future obligation, registration of security interests, priority rank

The article addresses the main changes introduced to the Russian Civil Code with respect to the rules of negotiations, conditions and criteria for liability of the parties and possible approach to formalising parties relations at the precontractual stage.

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Keywords: pre-contractual liability, bona fide negotiations, agreement on the mechanism of negotiations, preliminary agreement, framework agreement, memorandum of understanding

The article opens the cycle of publications regarding the “secret knowledge”, which is forbidden in the Russian civil law studies due to the dogmatic thinking that separates any alternative stream of legal thought except for the one corresponding to the conventional dogma. That’s why the Russian law students have no possibility to take a look on many civil law institutes from different perspectives, which adversely affects the national legal science. The author tries to challenge certain stereotypes established in the Russian law schools during civil law studies.

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Keywords: civil law, civil law teaching, legal education

Traditionally in finance risk/return trade-off was a key concept determining most of investment decisions. However, recently this risk/return formula was slightly modified by adding another property to it: the social impact or, in broader context, the type of positive social consequences which caused by a particular investment. Evolvement of social impact movement has resulted not only in the introduction of new corporate forms, such as social benefit corporation, but also in the financial sphere where a new form of investment instruments was created. Synthesis of financial innovations with purely charitable donations provided a new financial instrument, social impact bonds (SIB). Pursuant SIB arrangement non-for-profit organisation provides some services to a public, whereas such an activity is prefunded by investors, who have been promised by government to be reimbursed if the project succeeded. Should non-forprofit organisation achieved specified KPIs, investors to be reimbursed, otherwise they may lose their entire investment. Thus SIB combines upside of traditional fixed income (bond) and downside of equity. The article also outlines other forms of social impact financial instruments and provides some specific policy recommendations aimed to promote social impact investments.

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Keywords: non-for-profit organisation, impact investment, impact finance, social impact bonds, SIB, charitable bonds

The author explores the concept of obligation and describes features of obligation which distinguish obligation relations from other relative legal relations. The author proves that an obligation is not a legal relation but a kind of a legal bond which precedes an obligation relation. An obligation relation is a stage of discharge of an obligation.

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Keywords: obligation, legal relation, structure of legal relation

The article addresses the issues of legal nature of damages of the bona fide participants of capital markets (bona fide investors), caused by the unlawful use of inside information (insider dealing). Particularly, the author analyses whether such damages may be seen as actual damage, loss of the expected profit and unjust enrichment of the insider. The author arrives at a conclusion that the said damages are of a special legal nature (sui generis damages) and contain the penalty element.

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Keywords: damages, loss, inside information, unjust enrichment, restitutionary damages, retributive damages

The author examines facts concerning apostille on tax residency certificate for the purposes of application of the Convention for the Avoidance of Double Taxation by fiscal organs of Kazakhstan and Russia established in 2013. The article gives an overview of the wide range of positions of concerned parties and proposes certain decisions to settle the dispute. The author also highlights conceptual issues regarding international tax policy in a brand new manner.

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Keywords: double taxation, resident, tax residency certificate, mutual agreement procedure, mutual agreement procedure, withholding tax, apostil, legalisation, international tax policy

The article examines the concept of the “right to the city” by offering an analysis of the roots of the idea: the writings of the French Marxist and social theorist Henri Lefebvre. While there has been a growing utilisation of H. Lefebvre’s concepts during past two decades all over the world, he is neither translated in Russian nor widely recognised among the national legal scholars. The article explores how his theoretical writings on space and the urban can be used to redefine the existing Moscow district courts’ practice. The author emphasises the main dimensions of the Russian legal framework governing the right to the city (the right to a healthy environment, the right to take part in public hearings, the right to information, etc.) and some civil procedural problems in the context of Lefebvre’s heritage (public interest lawsuits, the discussion “a right or an interest?”).

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Keywords: the right to the city, the right to a healthy environment, public hearings, the right to information, public interest