ARCHIVE FOR 2016 RUSSIAN
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Октябрь 2016
CONTENT
Research Programme
FREE TRIBUNE
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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