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Январь 2016





Vitaliy Kalyatin Repurchase of Products by a Parallel Import Agent: Discussion Topics
Case comment on the judgment of RF SC No. 306-ES15-8790 of 27.10.2015
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Elena Ostanina The Case of Four Prohibitions
Case comment on the judgment of RF SC No. 305-ES15-5505 of 01.12.2015
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Nicolai Shcherbakov The Role of the Construction Permit
Case comment to the judgment of the Presidium of RF SC No. 301-PEK15 of 11.11.2015
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Anton Ivanov Problems of Application of Art. 8.1 of the Civil Code to Intellectual Property Objects
New article 8.1 of the Civil Code of the Russian Federation intoduces general principles of the registration of rights. It does not specify, however, to which types of objects these principles should apply. The most controversial issue, whether the general rules apply to intellectual property. The IP Court answers to this question in the negative. The article argues that this approach is wrong. The rules do not contain formal restrictions on their applicability. Moreover, there are no sound policy reasons against the idea that IP rights are to be covered by article 8.1 of the Civil Code.
Keywords: principles of registrator of right, intellectual property rights, real property
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Andrey Yudin Procedural Rules of the Transitional Period. Reopening Arbitrazh Cases on the Basis of New Rulings of the Plenum and Presidium of the Supreme Arbitrazh Court of the Russian Federation
The consolidation of the two Russian supreme courts — the Supreme Court and the Supreme Arbitrazh Court of the Russian Federation (SAC) — into one Supreme Court led to certain adjustments in the legislation on civil procedure. In particular, the list of the new facts that can be used to reopen a case in an Arbitrazh court was changed. After the reform, these facts do not include change of the existing practice by a resolution of the Plenum of the SAC or a judgment of the Presidium of the SAC. This gave rise to the question, whether these circumstances warrant reopening a case under the new facts after the date of the reform (August 6, 2014). The author resolves this problem using the analysis of case law, formal legal and theoretical arguments. At the same time, the article projects this problem on the related issue of how effective are the procedural rules that were introduced for the transition period of the consolidation of the higher courts.
Keywords: arbitrazh procedure, civil procedure, new and newly discovered facts, ratio decidendi, judicial reform
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Yulia Baigusheva Representation (Notes on the Ruling of the Plenum of the Supreme Court of the Russian Federation No. 25 «On Application of Certain Provisions of Section I of the First Part of the Civil Code of the Russian Federation by the Courts», 23 June 2015)
The article analyses positions formulated by the Plenum of the Supreme Court of the Russian Federation (SC) on the application by the courts of the Civil Code provisions on representation. It is submitted that the Plenum of the SC correctly identifies the conditions in which an unauthorised representative of a legal entity gains the authority based on his apparent right to represent the entity; rightly observes that if the principal dismisses one of several representatives, only the dismissed person loses his power to represent the principal. The author also agrees with the Plenum’s view that if someone makes a deal with a substitute representative supposedly authorised by the head of a branch of a legal entity, this person should check very carefully the authority not only of the substitute representative but also of the head of the branch. However, according to the article, some conclusions of the Plenum could hardly be justified. These are the following. First, that the approval of the transaction without authority may be given without specifying to whom it is addressed. Secondly, that the written authorisation may be incorporated into a contract or decision of an association of persons. Thirdly, that the abolition of the power of attorney issued for transactions with specific counterparties requires not only an official publication but also direct notice of the abolition to the representatives and the counterparties. These and other issues are considered in the article based on the achievements of domestic and foreign legal scholars.
Keywords: organ of a legal entity, authority, power of attorney, representation
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Burkhard Breig, Irina Moutaye Res publica and Res mercatoria in Forms of FIDIC and the Civil Code of the Russian Federation
In this paper, on the example of FIDIC construction contracts forms the authors attempt to explain why parties to contracts based on international standard forms usually avoid selecting Russian law as governing for their contracts. On the basis of comparative legal, functional, system and economic analyses of the rules of the Civil Code of Russia, laws of foreign countries, international regulators and FIDIC standard contracts authors concluded non-compliance of a number of rules of the legislation of the Russian Federation, including the Civil Code, with the contemporary needs of the market as well as wrong interpretations of a number of rules in the spirit of their character as mandatory rules by Russian courts. To remedy the situation the authors propose the use of international regulators such as UNIDROIT for interpretation of the rules of the Civil Code, as well as to use, where appropriate, a comparative legal method, since the study of foreign standards, the doctrines and practices let us better understand the purpose of civil legislation in accordance with the needs of business and society.
Keywords: FIDIC, contract, contract law, construction, mandatory rules, comparative law, UNIDROIT, Civil Code of the Russian Federation
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Kirill Novikov Security Payment as a New Security Instrument
The article explains the nature of the security payment as one of the new security instruments that has recently been added to the Civil Code. The author concludes that the agreement to provide the security payment stands close to the model of pignus irregulare in Roman law and should be qualified as a specific kind of obligation. It also describes the essence of the security payment and the conditions of its use.
Keywords: obligation, security instruments, security payment, irregular mortgage, pignus irregulare
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Evgeny Melikhov Legal Mechanisms of Long-Term Motivation at Non-Public Companies in the USA and Russia
Foreign and Russian approaches to incentivising the key employees and advisors at public companies with stock, stock options and profit sharing rights have been researched well enough while the mechanisms available for non-public companies, including those with equity divided into capital interests, units and other membership interests rather than into shares, have gained less attention. The article provides survey of the legal mechanisms used in the USA to reward employees, independent directors and key consultants with stock (capital interests), stock (equity) options and equity appreciation rights. Then, the opportunities and issues related to the application of the above mechanisms by nonpublic business companies, partnerships, limited partnerships and production cooperatives in Russia are analysed against the U.S. experience, including the analysis in the light of the amendments to Part I of the Civil Code of the Russian Federation that took effect on the June 1, 2015.
Keywords: incentive programs, business companies, limited partnerships, partnerships, production cooperatives, stock incentives, option agreement
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