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ARCHIVE FOR 2016    RUSSIAN

Апрель 2016

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

A.N. Vereshchagin, V.S. Nazarov. Court Fees: What Should They Be?
The paper presents a comparative study of court fees in Russia and in the European countries. Taking into account the international experience and statistics the authors support the opinion on the necessity of reforms of the existing Russian system of collection of court fees.
Keywords: court fees, legal costs, litigation fees
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A.V. Ilyin. Explanations of the Supreme Court on the Application of the Legislation on Reimbursement of Legal Costs in the Context of the Doctrine of Judicial Expenses
Judicial expenses became subject to the Plenary Resolution of the Supreme Court for the first time. The author attempts to find in the explanations of the Supreme Court any leading idea or general principle which would allow to cover all proposed explanations. The interpretations put by the Supreme Court are analysed in the context of various theories defining the nature of court costs: the procedural theory, the theory of damages, and the theory of the actual procedural behavior.
Keywords: explanations for judicial practice, judicial expenses, court costs, damages, criterion of distribution of court costs, actual procedural behavior
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O.V. Manannikov. Reimbursement of Legal Costs on The Example of Disputes over the Cadastral Value: Evolution, Theory, Practice
On the basis of disputes over the cadastral value, the author examines how the legal positions of the highest courts of Russia on the compensation of legal costs evolved until the release of the Plenary Resolution of the Supreme Court of the Russian Federation in January 2016. The paper covers the comparison of the substantive method and the temporal-legal method of interpretation of procedural rules regarding court costs and gives a critical analysis of the contradictory acts of the abolished Supreme Arbitrazh Court of the Russian Federation. The author addresses a situation where a respondent objects to the reimbursement of legal costs on the grounds that the plaintiff had borne them at the pre-trial phase so they are not connected to the case. He comments on the differences in the positions of the two Plenary Resolutions of the Supreme Court concerning the compensation of legal costs and comes to the conclusion that the right to reimbursement of legal fees should have no exceptions, be not determined by time when such expenses were incurred, and be based on practical, procedural and legal connection to the case.
Keywords: legal costs, reimbursement of legal costs, cadastral and market value, court costs, expenses on an independent evaluation
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A.V. Yudin. Distribution of Legal Costs in case the Defendant is not Guilty of Bringing the Proceedings
This paper looks at the problem of the distribution of court costs in a situation where the defendant is not guilty of the proceedings started by the plaintiff. For example, a person is involved in the process as a defendant and the plaintiff wins the claim despite the defendant has no opposing legal interests with the plaintiff and did not give him any reason to appeal to court. In such cases the higher courts exempt the defendant from paying legal costs. The author draws attention to the logical inconsistence of this position, explores the causes leading to such situations and proposes measures to improve the regulation in this area. The propositions of the author intend a more critical attitude to the requests of the court in which the defendant’s figure is of a rather “technical” nature, clarification of the procedure for dispute resolution, and better distribution of the competence of correspondent judicial and administrative authorities.
Keywords: legal costs, court costs, costs of the proceedings, distribution of court costs, recovery of costs and expenses, cause for an action, civil proceedings, special proceedings
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P.V. Khlyustov. Third Party Interveners in the Russian Model of Distribution of Legal Costs
The paper provides the analysis of the reimbursement of legal costs borne by non-party interveners. The development of law and courts practice is analysed in terms of the named legal relationships. The author is of the opinion that the existing legal model contains inherent contradictions and provides for a rather insufficient respect of the interests of non-party interveners.
Keywords: legal costs, costs borne by non-party interveners, losses
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A.V. Neznamov. Creditor vs Creditor: Legal Costs as a Payment for Being Active in a Bankruptcy Case?
A creditor seeks to join the register of the debtor’s creditors while another creditor actively opposes. Who pays legal costs in connection with such separate dispute? The author analyses tendencies of court practice with respect to the recovery of legal costs in insolvency proceedings and provides his opinion on the position of the Supreme Court of the Russian Federation described in 2015 in this regard.
Keywords: insolvency, legal costs, court practice, Supreme Court of the Russian Federation
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Press Release

 

 

Theory and practice

A.V. Asoskov. Lex Societatis: Commentary to the Article 1202 of the Civil Code of the Russian Federation
The paper examines thoroughly the contents of the Article 1211 of the Russian Civil Code on determination of the law applicable to a contract in the absence of a choice-of-law agreement between the parties. Special attention is paid to the amendments that were introduced into the Article 1211 of the Russian Civil Code by the Federal Law dated September 30, 2013 No. 260-FZ.
Keywords: contractual obligation, lex contractus, theory of characteristic performance, principle of the closest connection, conflict-of-law rule, international private law
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V.A. Savinykh. On the Issues of the By-Law Level of the Legal Regulation of Cadastral Value
The author explores the acceptability of transfer of powers to regulate the cadastral value to the by-law level. Using this analysis, the author concludes that the principles of certainty and economic feasibility of taxation demand to give a comprehensive legal definition of the cadastral value, to establish its connection with the market value, and to limit the arbitrary regulation of this issue at the by-law level. The qualities of the regulatory impact of real estate taxation, associated with the way the cadastral value is calculated and understood, can not be transferred into the hands of the executive branch.
Keywords: cadastral value, by-law regulations, economic feasibility of taxation
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S.V. Usoskin. Investment Arbitration AND Corporate Law: Investments THROUGH Complex Holding Structures AND IN Derivative Instruments
The paper considers the applicability of guarantees contained in bilateral investment treaties to assets only indirectly owned or controlled by the investor as well as to depositary receipts and similar securities. The author discusses various models BITs use to extend protection to assets owned by third state companies the investor controls or to assets indirectly controlled by the investor. Various factors tribunals take into account in ascertaining control are analysed. The author also considers various issues that arise in the context of extending protection to depositary receipts and similar instruments. In practice such instruments are treated as protected investments in the territory of the host state, but the paper highlights factors that may lead to a shift in the practice.
Keywords: investment arbitration, transboundary investments, definition of investment, indirect investments
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S.Yu. Nikonorov. Certain Aspects of Economic Concentration in Trade in the Russian Federation
The paper covers certain characteristics of economic concentration transactions made by business entities in food retail trade through trade networks. The author analyses the existing legislation and enforcement practice relevant to such operations to conclude whether there is a need for a broad interpretation of the Article 14 of the Federal Law dated December 28, 2009 No. 381-FZ “On the Fundamentals of State Regulation of Trade in the Russian Federation”.
Keywords: economic concentration, retail trade, antitrust regulation in retail trade, protection of competition
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Foreign experience

L.Yu. Vasilevskaya. Concept, Types and Grounds for the Emergence of Natural Obligations in German Law
The paper covers the features of the regulation of natural obligations in German law. The author substantiates her opinion on the legal character of natural obligations as well as examines the grounds for their emergence and their types on the basis of an analysis of judicial practice and different approaches of German civil lawyers to the interpretation of the essence of natural obligations.
Keywords: natural obligation, imperfect obligation, creditor, debtor, right in action, execution of an obligation, protection of creditor’s subjective rights, obligations, compulsion, enforcement of obligation
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