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ARCHIVE FOR 2015    RUSSIAN

Октябрь 2015

CONTENT

 

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

Y.V. Tay. Changes! We are Longing for Changes...
The article provides a brief analysis of certain proposals for the reform of the Russian arbitration system concerning the permission for judge emeritus to adjudicate disputes as an arbitrator, and the issues of arbitrability. The author finds necessary to establish partnership relations between state courts and arbitral tribunals resulting in the improvement of the image of the last ones and lessening the caseload of the first ones.
Keywords: arbitration, arbitral tribunal, arbitration proceedings, arbitration reform, arbitrability
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S.A. Kurochkin. International Commercial Arbitration Doctrine: Towards Transnational System of Justice
The article is a brief review of contemporary foreign academic publications devoted to international commercial arbitration as a mean of effective dispute resolution.
Keywords: international commercial arbitration, arbitration agreement, award, arbitrability
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N.S. Lashkov. Confidentiality of Arbitration Proceedings: the Notion and the Limits
There is a long tradition of discussing whether the confidentiality of arbitration proceedings derives from the agreement of the parties or from the adjudication of a dispute by an arbitral tribunal. The author gives an analysis of grounds and limits of confidentiality in commercial arbitration.
Keywords: international commercial arbitration, privacy and confidentiality, searching for the balance between private and public interests, discovery procedure
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A.V. Grebelsky. Electronic Evidence in International Commercial Arbitration
Due to the growth of electronic document circulation in international trade electronic evidence became of particular importance in fact-finding in international commercial arbitration. The parties and arbitrators must take into account the specificity of electronic information, particularly with regard to the production and evaluation of such evidence. Many arbitration institutions and specialised bodies dealing with arbitration have designed different practical guidelines to help the participants of the arbitration procedure to comprehend the essential features of electronic evidence and explain the order of their submission in the framework of arbitration procedure. It is necessary to allocate among these features a capacity of electronic evidence to restore in most cases even after their removal by the user, as well as metadata that has its own probative value. The disclosure of electronic evidence may be accompanied by involving technical specialists and experts, as well as using special software in order to avoid the US style discovery and inadvertent disclosure of documents covered by evidentiary privileges.
Keywords: international arbitration, evidence, electronic document production, electronic disclosure, electronic discovery
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M.А. Akchurina, M. Molfa. Asian Arbitration Centers: Challenge to the Traditional Arbitration Institutions?
Due to recent economic and political developments, there has been an increased interest by the Russian legal and business community towards Asian arbitration centers in the last year. The authors consider the key features of arbitration proceedings conducted under the Rules of the Hong Kong International Arbitration Center and the Singapore International Arbitration Center, and compare them with those conducted under the Rules of Arbitration of the London Court of International Arbitration and the International Court of Arbitration of the International Chamber of Commerce. The purpose of this analysis is to compare the effectiveness of the procedural devices provided by the HKIAC and SIAC Rules with those of the LCIA and ICC Rules. Тhe authors also touch upon certain features that are unique to the HKIAC and SIAC Rules, and are not reflected in either the LCIA or ICC Rules, and therefore may not be familiar to Russian arbitration users. Accordingly, this article constitutes a useful roadmap to the HKIAC and SIAC Rules for practicing lawyers who have not yet familiarised themselves with these rules and have not reviewed them against the LCIA and ICC Rules. This article also discusses some of the key issues that are likely to arise in any international arbitration proceedings and will therefore assist Russian and foreign lawyers who have little experience in international commercial arbitration.
Keywords: international commercial arbitration, rules of arbitration, Hong Kong International Arbitration Center, Singapore International Arbitration Center, LCIA, ICC
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Judicial practice. Comments

E.A. Ostanina, R.A. Taradanov. Easement Fee: a Comment on the Decree of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation dated 11 June 2015 on the Case No. A43-11824/2013
Which means of easement fee estimation can be used since the “Temporary Methodical Recommendations on Estimation of the Proportional Easement Fee” are considered invalid? The authors suggest certain rules letting estimate the proportional easement fee.
Keywords: easement fee, estimation, Temporary methodical recommendations

 

GARANT

 

Press Release

 

Theory and practice

M.A. Rozhkova. Protocol of Disagreements and Certain Other Problems related to Contract Conclusion: are there any Decisions Suggested in the Current Civil Code?
The article is focused on the issues of contract conclusion, particularly those concerning the protocol of disagreements. The author strives to dispel the deeply-rooted “soviet” myths preserved in the national practice of contract conclusion and suggests the decision for long-pending problems through the analysis of the provisions of Chapter 28 of the Civil Code of the Russian Federation and of their practical application. The article seems to draw rather optimistic conclusions regardless of the imperfections of national legislation in the named area: the author believes that the detected difficulties of “legal understanding” could be overcome quite easily.
Keywords: conclcusion of a contract, protocol of disagreements, essential terms of a contract
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S.K. Solomin, N.G. Solomina. Concept of the Possessor of a Source of Increased Danger
The article covers the shortcomings of the existing approaches to the understanding of the possessor of a source of increased danger. The authors suggest their own approach to the interpretation of the given concept.
Keywords: the possessor of a source of increased danger, infliction of harm, the obligation for indemnification
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V.G. Borodkin. Shareholders’ Agreement as a Mechanism for Breaking a Deadlock in a Company
A conflict between the participants of a company can lead to a deadlock, a situation in which the conflict has no effective solutions. The article gives an analysis of ways to break the deadlock which are provided by the current Russian legislation and might be foreseen in a shareholders’ agreement. The author pays special attention to the following mechanisms: exclusion from a company, liquidation of a legal entity and call (put) option on shares.
Keywords: shareholders’ agreement, deadlock, corporate conflict
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D.V. Kachkin, R.R. Repin. Public-Private Partnership Agreement as a Civil Law Contract
In July 2015 the State Duma passed the Federal Law dated 13 July 2015 No. 224-FZ “On Public-Private Partnership, Municipal-Private Partnership in the Russian Federation and the Amendments to Certain Legislative Acts of the Russian Federation”. The idea of introducing federal legislation regulating the relations arose from the PPP Agreement should be supported, but the lawmaking product presented to the Russian society can not be assessed explicitly. The authors attempt to analyse the specific regulations of the law and provide a corresponding general description of the new federal act.
Keywords: public-private partnership, public-private partnership contract, investments, infrastructure, concession, concession contract
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