ARCHIVE FOR 2016 RUSSIAN
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Сентябрь 2016
CONTENT
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Yuliy Tay Per aspera ad astra, or Court Reform, Two Years, All Systems Performing Well? The article analyses the functioning of the Chamber for Commercial Disputes of the Supreme
Court of the Russian Federation (SC RF) and compares it with the Supreme Arbitrazh Court of
the Russian Federation (SAC RF). The comparison is based on the two-year practice of the new
Chamber. The article also gives an overall assessment of the clarifications issued by the SC RF
after it replaced the SAC RF. The author notes the shortcomings of the reform of the highest
instance for economic disputes and proposes solutions to improve procedure in the Chamber for
Commercial Disputes.
Keywords:
cassation, the Supreme Court, arbitrazh (commercial) procedure, supervision (extraordinary appeal), judge
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Andrey Egorov Charge by Court Order: Theoretical and Practical Problems. In Russia and Abroad Regulation that treats court injunctions as charging orders has recently been enacted in Russia. The
article argues that this type of charges (by court orders) should be developed with the use of foreign
experience. It also criticises the trend emerging in court practice that treats this instrument with suspicion
and tries to limit it as far as possible. The article proves that the charge is created by both injunction that
supports execution of a judgment (execution injunction) and interim injunction. The last type of charge
should be transformed into a charge by execution injunction when and if the court upholds the claim.
This transformation allows keeping charge priority that is determined by the date of the injunction order.
The article also argues that the charge by court order should remain in force even when the chargor
goes into bankruptcy. However, it could be challenged as providing unfair preference to the chargee
based on the same principles that legislation provides for challenging contractual charge. Another type
of charge considered by the article is the charge of money on a bank account. The article concludes
that court order could create this type of charge irrespective of whether the money is kept on a special
charge account. Moreover, the charge could cover not only actual money on the account but also
money that will be transferred to it in the future. In both cases the priority of claims relating to the same
account should be determined by the date when the writ of enforcement was delivered into the bank.
Keywords:
charge, charge by court order, bank account charge, security, bankruptcy
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Dmitry Stepanov Economic Analysis of Corporate Law This article provides an overview of key concepts of economic analysis of corporate law. The
cornerstone thesis of corporate law and economics goes back to neoclassical economic idea that
regardless initial property rights distribution contracting parties may achieve effective agreement if
transactional costs are neglect, thus the firm is a legal device which helps to reduce the cost of
contracting. Therefore, contractarian theory of the firm has become predominant concept in legal
theory and shaped the debate on who are the ultimate beneficiaries of the governance of the firm
and how to define optimal default rules they need. The paper also analyzes an agency problem, then
conflicts between various corporate constituencies, mostly shareholders and creditors, as well as it
outlines efficient market hypothesis and how this concept was incorporated into economic analysis
of corporations. The article concludes by economics of mergers activity and regulatory competition
between various corporate jurisdictions with a number of normative implications that economic
analysis may provide for legal policy.
Keywords:
economic analysis of law, law and economics, contractarian theory, social cost, agency problem, efficient capital market hypothesis, regulatory competition
Vladislav Kostko Retention of an Object which is not in Debtor’s Ownership This article examines how the party who has exercised his right to retention (retentor) could protect
himself against claims by both the debtor and any other person. The analysis is based on the
understanding of the nature of the retention as described in the article. It is argued that retention is
neither a right (in rem or in personam) nor a transaction. The only thing that the retentor could do is
to object the claim for recovery of the retained thing. Principally, this is the way in which an illegal
possessor could protect his possession. Moreover, the retentor’s right to sell the retained property is
the consequence not of the retention but of other facts and circumstances. The theory of retention
developed in this article suggests that the retentor has protection only against those persons who are
obliged to cover expenses associated with the retained property or pay other debts to the retentor.
In general, if the retained property does not belong to the debtor, this means that retentor is entitled
to hold it, but is unable to sell. The defense against the thing’s proprietor is possible only in certain
cases: when he can be charged with the expenses incurred in connection with this thing or when he
acts in defense of the debtor.
Keywords:
retention, transaction, illegal possessor, vindication, pledge
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