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ARCHIVE FOR 2016    RUSSIAN

Октябрь 2016

CONTENT

 

 

Evgeny Sukhanov On Transformation of Legal Entity
Case comment on the judgment of RF SC No. 310-КГ16-1802, 19 July 2016

 

Artem Kukin, Olga Pleshanova Standards of Liability of a Bankruptcy Receiver
Case comment on the judgment of RF SC No. 303-ЭС16-1164 (1, 2), 4 July 2016; No. 309-ЭС15-18344, 29 July 2016
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Research Programme

 

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Kirill Novikov The Rules on the Pledge of Specific Types of Property in the Renewed Text of the Civil Code of the Russian Federation
The article examines the key rules of the amended rules of the Civil Code of the Russian Federation on the pledge of specific types of property. These types of property include: items under floating charge, items given to a pawnbroker, receivables, bank accounts, shares in companies, securities and intellectual property rights.
Keywords: civil law, pledge, mortgage
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Andrey Rybalov Crimean Easement
The article considers a peculiar easement that was introduced by the Law of the Republic of Crimea No. 73-ZRK of 15 September 2014 ‘On the Location of Engineering Structures’. In particular, the author argues that this easement is not a ‘public easement’ despite the fact that it is called so in the Law. The author suggests that the new type of legal right that was introduced by the Law ‘On the Location of Engineering Structures’ could be used to resolve problems that arise in Russian legal system when it is necessary to lay linear facilities through private land.
Keywords: easement, public easement, linear facilities
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Anna Smola Legal Effect of a Settlement Agreement on Other Disputes between the Same Parties
The article analyses the effect of a settlement agreement on other claims that parties to the agreement could have to each other. Arbitrazh courts have developed an approach which prohibits failing new claims that stem from the legal relation that was the basis for the dispute settled by the settlement agreement. This approach was applied in a recent judgment of the Supreme Court of Russia (No. 305- ЭС15-9906 of 1 December 2015). This judgment raises two questions: (1) whether this approach could be applied to claims that have been failed before conclusion of the settlement agreement; (2) whether the settlement agreement in an action to rescind a contract embraces all possible disputes related to the rescission. The article argues that both questions should be answered in the negative.
Keywords: settlement agreement, arbitrazh (commercial) procedure, the Supreme Court of Russia
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Roman Rechkin New Rules on Challenging Major Transactions: First Questions
The reform of corporate law in Russia included as its part the reform of the rules that regulate avoidance of major transactions. The new edition of article 46 of the Federal Law No. 14-ФЗ of 8 February 1998 ‘On Limited Liability Companies’ was introduced by the Federal Law No. 343-ФЗ of 3 July 2016. The amendments will take effect on 1 January 2017. However, the new version includes many terms that are judgment-based or even unclear: ‘ordinary course of business’, ‘transactions practiced by the organisation’, ‘significant change in the organisation’s scale of activity’ etc. Moreover, the authors of the reform once again refused to take into account economic consequences of the challenged transaction. This plainly makes it easier to avoid such transactions and, furthermore, opens the way to avoid them on formal grounds. At the same time some of the new rules have the opposite aim — to make avoidance of such transactions more difficult. The author asks practical questions that should arise when one tries to construe the new rules and analyse what issues will be important for arbitrazh courts when they will start implementing the new rules after 1 January 2017.
Keywords: invalidity of transactions, major transactions, limited liability company, joint-stock company
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Ilnar Abdulov Problems of Proving the Grounds for the Adoption of Interim Measures in Arbitrazh Proceedings
Ascertainment of grounds for the adoption of interim measures in arbitrazh courts is one of the most difficult issues relating to this institute. To a certain extent this stems from the conservative approach of judges to the introduction of these measures. This, in turn, has a negative impact on legal practice. It is evident, therefore, that a thorough research is required to find the ways to improve the approach to the adoption of interim measures and enhance their attractiveness. The article considers two options: (1) the presumption of the existence of grounds for adoption of interim measures and (2) the R. Posner formula. It is suggested that these instruments could successfully resolve problems related to the interim measures.
Keywords: interim measures, the standard of proof, the formula of R. Posner, judicial discretion
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Dmitry Fedorov Validity of an Illegal Agreement: the Case of Carrier's Contractual Liability Insurance
In Russian Law, violation of a prohibition imposed by law makes a contract illegal and void provided that at the same time the contract violates public interest. According to the predominate point of view, such a contract cannot be cured by reference to the principle of good faith and its specific reflection in p. 5 art. 166 of the Civil Code of the Russian Federation. Using the example of the decision No. 307- ЭС15-1642 of 20 July 2015 of the Economic Chamber of the Russian Supreme Court, the author advocates the need of interpretation of a prohibiting rule. The article argues that violation of purposes of such a rule, including protection of public interest, should not always entail the voidance of the illegal contract. If the violation of public interest took place, and public interest cannot be restored by declaring the contract void, the issue moves into the sphere of prevention. The question what is more effective from the perspective of prevention — declaration of voidance of the contract or its cure — is not as simple as it may seem.
Keywords: illegal contract, good faith, preventive function, construction of law
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