Журнал ЗАКОН

Minister of Justice of the Russian Federation Alexander V. KONOVALOV Interview by Yan Piskunov, chief editor of the “ZAKON” journal

We have addressed our traditional questions to moderators and speakers at sessions of the VI St. Petersburg International Legal Forum. What are your expectations from the Forum 2016? Which topics for discussion could be the most interesting for you?

Head of the Federal Antimonopoly Service of the Russian Federation Igor Yu. ARTEMIEV Interview by Yan Piskunov, chief editor of the “ZAKON” journal

The paper explores the competition dynamics of the global seed market. It documents the economic concentration of the sector, in particular the M&A activity of the major seed companies and their reliance on complex intellectual property strategies in order to offer a one stop shop solution to farmers. Recent merger activity in this sector (the Monsanto bid to buy Syngenta, the DuPont and Dow merger deal, ChemChina’s bid to buy Syngenta) illustrates its rapid transformation from an already concentrated industry to a tight oligopoly on a global scale. The increasing global consolidation of this industry raises new challenges for competition law enforcement authorities dealing with the emergence of new powerful actors at the factor of production (input) level, in view of the broader concerns animating public policy in the food sector and the existence of a nexus of international commitments for biodiversity, sustainability, the right to food etc. By exploring this under-studied but fascinating area of competition law enforcement we open the debate over the inclusion of broader public interest concerns in competition policy and the consideration of its distributive impact from a global perspective.

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Keywords: antitrust, agricultural markets, seeds, contract agriculture, cross-licensing agreements, biodiversity, IP rights, plant variety protection rights, biotechnology patents, access to germplasm, generic trait

This paper provides detailed overview of current state of affairs within Russian corporate legislation when it deals with not a sole legal entity but rather with a group of companies, namely holding corporate structure. Complexity of legal issues associated with the regulation of holding companies — as the author argues — requires new theoretical approaches, which, in turn, may call a departure from axiomatic foundations of traditional corporate law concepts and a rapidly rising demand for fundamentally new legislation in this area of law. Specifically, this paper outlines potential candidates for future legal reform and provides key features of proposed new regulations, e.g. as how controlling and controlled persons should be defined in corporate legislation, including some implications for liability of controlling person; required volume of information that should be disclosed both for outside investors and to the board members of holding company; and finally a number of proposals aimed to improve investors protection in publicly traded companies while these companies are functioning as a part of a bigger holding structure.

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Keywords: holding company, group of companies, minority oppression, liability of controlling shareholder, damages in corporate law, minority shareholders protection

The paper deals with recent changes introduced to Russian arbitration laws, most of which are to take effect from 1 September 2016. The author notes the most significant aspects of the reform and analyses their impact on the development of arbitration in Russia, relying on the experience of European countries.

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Keywords: international commercial arbitration, arbitration reform, arbitration, arbitrability

Thе paper is devoted to the analysis of the impact of omnipresent digital technologies on the capabilities of right holders to seize copyright infringements. The author concludes that in the Digital Era protection of copyright becomes much more complicated. It results in the necessity to start considering how the status quo may be achieved. The author suggests some directions for amending the current legislation and law-enforcement practice in order to advance mechanisms of copyright protection and to balance the interests of right holders and users.

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Keywords: copyright, information technologies, free use of copyrighted work, liability of information intermediary

The authors provide the analysis of the Russian M&A market dynamics for the year 2015 as well as of the principal trends in structuring and pricing such deals and applicable risk management. In light of the recent amendments to the Russian Civil Code concerning the law of obligations, the paper focuses on the integration of some English legal concepts into the Russian legal system and possible consequences of exercising such instruments in practice.

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Keywords: M&A market, trends in deal structuring, good faith, negotiations in bad faith, representations, indemnity, conditions precedent, options, escrow, shareholders’ agreement, break-up fee

The paper gives vivid examples of various issues stemming from the introduction of innovative and disruptive technologies in Russia that will be discussed in the RCCA session at the VI St. Petersburg International Legal Forum. General counsels and experts of the largest Russian and international companies with successful experience in the implementation of disruptive technologies will discuss how a regulatory framework for innovative products or services developed on the basis of disruptive technologies should be established and how to manage appearing risks. In frames of the project “Lawyers and Business” the RCCA improves legal profession establishing exchange of the best practices between its members and teaching them about contemporary management.

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Keywords: disruptive technologies, innovations, legal department, in-house counsel, regulation, risk management

This paper touches upon the current system of conservatory measures for protecting the Russian tax law and double taxation avoidance agreements (DTAA). The developments encouraged by the OECD in the framework of the BEPS project aimed at the prevention of the unlawful use of privileges contemplated by the DTAA are analysed and criticised, including in comparison with the applicable Russian law. Finally, an attempt to identify the set of problems attending the protection of DTAA from its unlawful use is made.

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Keywords: double taxation avoidance agreement, DTAA, tax benefit, base erosion, concept of unjustified tax benefit, business purpose doctrine, unlawful use of tax benefits, BEPS, OECD

The paper is devoted to the development of laws, doctrines and court practice in transnational insolvency. The author discusses the EU insolvency regulation reform, the adoption of UNCITRAL Model Law on Cross-border Insolvency by the Member States of OHADA Treaty, the development of soft law on cooperation of courts and bankruptcy receivers. The search for balance between universality and territoriality is emphasised. The author discusses the most recent Russian commercial courts’ practice on such aspects as the recognition of foreign bankruptcies and application of reciprocity principle, recognition of foreign reorganisation procedures, individual claims to the debtor in the foreign bankruptcy proceeding. The paper concludes that the law enforcers in Russia deal with the same difficulties and problems as their colleagues abroad. The lack of special regulation concerns lawyers more and more.

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Keywords: insolvency, transnational bankruptcy, cross-border bankruptcy, foreign bankruptcy recognition, foreign reorganisation plan recognition, principle of reciprocity universality, territoriality, public policy, local creditors’ interests

The author defines trusts within the framework of English law, provides historical context to their emergence and defines their principal difference from the substitutes introduced in the civil law and mixed law countries. The issues of transparency are considered as well as the effects of the new UK and European legislation in this area.

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Keywords: trust, trustee, settlor

Considering the problems of interaction with the ECHR and its application practices described in the Russian and German doctrine, the author seeks to answer the following question: to what extent do the quality of the direct application of the ECHR acts and the national regulations, which are beyond the ECHR jurisdiction, affect the frequency of the condemnation of the country by the ECHR?

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Keywords: European Convention on Human Rights, German legal policy, interaction with the ECHR

The current Russian legal system is still searching for essential features of network (collaboration) form of education, which is an innovation in the field of teaching and learning. However, it has certain legal approaches to be applied to its realisation. In fact, the Russian law on education determines only organisational specifics in the realisation of educational programmes. That is why we may define common aims in involving innovative elements into the process of education in Russia. These aims could be divided in the following groups: firstly, increasing of handling the educational process (including its manageability), secondly, enhancement of the quality of education, thirdly, the internationalisation process in teaching and learning, fourthly, image enhancement of the educational establishment, fifthly, support of the access to education. Saint Petersburg State University has gained a major experience in the educational networking with other universities, companies and organisations. This positive experience can be used for drafting certain proposals concerning the improvement of the Russian legal regulation of the educational networking.

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Keywords: educational networking, educational networking in educational programmes (curriculums), models of educational networking