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ARCHIVE FOR 2016    RUSSIAN

Август 2016

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

A.N. Zhiltsov Law Applicable to Obligations Arising as a Result of Negotiating in Bad Faith
The paper covers the issues of the choice of law applicable to relationships regulated by rules on pre-contractual liability, which are new for the Russian legal order.
Keywords: conflict of laws rules, negotiating in bad faith, pre-contractual liability, culpa in contrahendo
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I.G. Medvedev Marital Property: Trust Test (Issues of Conflict of Laws)
The author considers how trust and beneficiary ownership are connected with marital property relations. Having analysed the doctrine and current judicial practice, he suggests ways to handle the conflicting issues. The paper also looks at the problems of qualification and choice of law applied to a trust, and demonstrates the necessity to adopt independent regulations of conflict of laws, particularly relating to resolving property disputes between spouses.
Keywords: trust, beneficiary ownership, marital property relations, conflict of laws
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T.S. Lyubarskaya Application of Lex Rei Sitae Principle to Real Rights: Benefits and Shortcomings
The paper looks at benefits and disadvantages of lex rei sitae principle as a connecting factor. The author pays special attention to the question whether it is advisable to apply this principle to movable property, non-documentary securities, aircrafts, ships and other mobile equipment.
Keywords: law of the place where the property is situated, lex rei sitae, real rights, movable property, international private law
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E.V. Obukhova Indirect holding of Non-Documentary Securities. Conflict of Laws
The system of indirect holding of rights to non-documentary securities significantly affected the development of the correspondent market: issuers, agents and investors are now enabled to interact in different countries, and the transactions with securities have become transnational. Still, this system involves legal risks and serious problems, which arise from the conflict of laws and national approaches to the regulation of securities and transactions with them. As many foreign laws, Russian Civil Code does not have special rules regarding at least the choice of law applied to trading of securities. On the basis of legal doctrine, law and practice, the author considers the views on the choice of law applicable to trading of securities between agents (made both on over-the-counter and exchanging market), and between agents and investors.
Keywords: securities, non-documentary securities, connecting factors
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Discussion Board

L.V. Golovko Principle in dubio pro duriore and the Theory of Insurmountable Doubts, or The Importance of Studying the Swiss Criminal Court Procedure Doctrine
Legal doctrine handles the dispute over the principle in dubio pro duriore (Latin for “when in doubt, against the accused”) formulated by the Swiss criminal court procedure doctrine and opposed to the commonly known principle in dubio pro reo (“when in doubt, for the accused”) at the pre-trial stages of criminal proceedings. The evaluation of these principles requires keeping in mind the fact that Russian theory of criminal process interprets only insurmountable doubts in favour of the accused. Mostly this approach lets to achieve the same goals as those of the Swiss doctrine, which applies the principle in dubio pro duriore to cases when, for example, doubts should prompt law enforcers to initiate (not to refuse to initiate) a criminal case, to pursue investigation, and not to terminate the proceedings etc. The concept of insurmountable doubts minimises the theoretic significance of in dubio pro duriore principle for Russian criminal process (so this principle could be applied only under certain circumstances at the moment of initiation of a criminal case).
Keywords: criminal procedure, in dubio pro duriore, in dubio pro reo, insurmountable doubts, pre-trial investigation
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Press Release

 

 

Theory and practice

G.V. Tsepov Is It Possible to Judge for Greed? Liability of Controlling Persons of a Commercial Corporation Towards Their Creditors for Taking an Excessive Business Risk in the Vicinity of Insolvency
The article deals with the problem of a controlling person’s liability for taking an excessive business risk in the vicinity of insolvency. Applying methods of economic analysis of law the author concludes that, in general case, a controlling person of a commercial corporation is liable towards creditors of a debtor only for those actions that are committed by him with an intention to harm creditors.
Keywords: insolvency, bankruptcy, controlling person, creditor, debtor, excessive risk, liability
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V.V. Baibak New Wording of the Article 393 of Russian Civil Code: General Rules on Compensation for Losses Incurred by Breach of an Obligation
The reform of Russian law on obligations and contract law resulted in major amendments made to general provisions on the liability for breach of obligations. The author comments on the new wording of the correspondent regulations established in the Article 393 of the Civil Code. Among other things, the commentary deals with basic principles of recovering damages, standards of proof both of the amount of damages and their causation.
Keywords: damages, liability for breach of obligations, standards of proof

 

I. Tenberga Islamic Banking — a New Trend towards the Development of Banking Law
The paper reveals the core aspects of Islamic banking. The author proposes to use the experience of member states of the Islamic Development Bank for the formation of a new Russian interest free banking. It is offered to create within the Russian banking system credit sector and investment sector respectively. As a part of the latter, it is recommended to separate investment banks that specialise in speculative investments and non-speculative investment banks. To put into effect this idea, the author deems it necessary to adopt a federal law on a full cycle investment banks in the Russian Federation (similar to the Islamic one).
Keywords: islamic banking, Islamic bank, investment banking sector, investments, non-speculative investment banking
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A.I. Shchukin On the Legalisation of a Foreign Judicial Decision against a Russian Legal Entity in Respect of Which Bankruptcy Proceedings Were Initiated
The paper considers how courts should handle a claim for recognition and enforcement of foreign court decision in the Russian Federation if there are bankruptcy proceedings initiated against the debtor (defendant). The author critically assesses the approach of some courts, who believe that in this case the earlier initiated individual proceedings are subject to termination. The author states that the legalisation of foreign judgments within the special proceedings, out of bankruptcy proceedings, does not mean that one creditor’s claims would be unduly satisfied to the detriment of other creditors, since the majority of bankruptcy regulations restrict this.
Keywords: recognition and enforcement of a foreign judgment (court’s decision), special court proceeding, bankruptcy case, international treaty
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E.A. Smirnova, D.V. Medvedev Right Holder’s Consent as a Way of an Exclusive Right Assignment
On the basis of legislative and judicial examples, the authors consider the nature of a right holder’s non-contractual consent to use intellectual property assets. They also ponder whether the party’s consent shall be considered as a form of a disposition of the exclusive right pursuant to Article 1233 of the Russian Civil Code. The actuality of the issue concerned in the paper is determined by its theoretical and practical value since nowadays the practice of noncontractual consent spreads. The authors have made an effort to analyse probable legal implications of this practice, particularly as regards registrable intellectual property.
Keywords: intellectual property, assignment of intellectual property rights, consent of a right holder
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