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Февраль 2017




Evgeniy Gavrilov Protection of Business Goodwill from Negative Information in Social Networks
Case comment on the judgment of RF SC No. 309-ЭС16-10730, 16 December 2016
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Alexander Latyev Everything Is Communal — Everything Is Mine
Case comment on the judgment of RF SC No. 304-ЭС16-10165, 5 December 2016
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Anton Ivanov Problems of Russian Public Law: a View from the Outside
The article analyses fundamental problems of public law in comparison with private law from the viewpoint of a private law scholar. The doctrine of public law in Russia is weak and requires intensive development, although political conditions for this are not present yet. As a result of the current state of the doctrine of public law, its principles are not elaborated and it is expanding in the private law domain. On the other hand, constructions from private law are used in the sphere of public relations because public law does not have forms that could be utilised adequately. The article also lists certain problems of public law resolution of which should be a priority. These problems are: free transfer of public authority to third parties, limitation period for administrative actions, strict liability for public authorities etc.
Keywords: public law, private law, administrative law, constitution, retroactive effect of law, liability, limitation of actions
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Anna Arkhipova Duty to Provide Information under Article 307 (3) of the Russian Civil Code
The amended Civil Code introduced a duty to perform obligations in good faith. This general principle is specified in article 307 (3) by a reference to a duty to provide information. The duty applies to civil obligations of all kinds, irrespective of their origin. It may last for a period of time that is not strictly limited by law, including the period after the obligation is terminated. The obligation to disclose as per article 307 (3) applies unless specific rules governing particular types of obligations provide otherwise. There is however little contradiction between the general duty and the specific rules. In the absence of specific rules, the general duty to disclose should apply independently. This may cause difficulty as the law does not define even basic parameters of this duty. The author puts forward a number of tests that allow to define the scope of information to be disclosed (such as professional competence of the parties, their status as a business or a consumer etc.). While the duty to disclose information serves some valuable purposes, it should not develop without any restriction: the limits are set out by the civil law principles of reasonability and acting in one’s own interest, as well as the obligation to act prudently, inter alia by actively collecting information. The duty to disclose information set out by article 307 (3) is an aspect of the general principle of good faith. This results in a specific form of sanction for its breach: the court may refuse to protect a party who acted in bad faith. Whether the duty to disclose should be considered as an independent civil obligation is still a subject of discussion. The author supports a positive answer to this question but acknowledges that an alternative point of view is worth considering. In any event, a remedy of damages for breach of duty to disclose should be available to the aggrieved party.
Keywords: information duties, duty of disclosure, good faith
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Natalya Mosunova Cartels in Russia: per se or Effect?
Most jurisdictions prohibit hard-core cartels per se because cartels are believed to be extremely harmful everywhere. However, in Russia cartel can be both a per se and effects based offence. The paper investigates inconsistency of the use of these approaches, argues that Russia’s administrative anti-cartel regime cannot provide cartel deterrence and recommend how the law can be reformed for greater certainty. The paper is structured as follows. The first section introduces per se principle and an inability of administrative fines to secure cartel deterrence. The second section employs illustrative cases to demonstrate the inconsistency of the interpretation of the cartel offence. Based on empirical data, it also reveals that there is no criterion to choose between per se approach and effects-based approach and there is no complete test of effects to prove cartels. The third section concludes on the possible reasons of the ambiguity of the administrative anti-cartel enforcement. The paper identifies uncertainty as the central enforcement problem of Russia’s anti-cartel regime and suggests, first, to clarify the law by distinguishing per se prohibition of hard-core cartels from other types of agreements; second, to develop the concept of appreciable effect for administrative wrongdoings in order to free resources of competition authorities and to encourage the courts to apply per se principle more consistently; and, finally, to exclude market analysis from anti-cartel enforcement. These findings are of interest for policy makers and practitioners.
Keywords: cartels, antitrust regulation
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Mikhail Samoylov Application of the New York Convention to Foreign Judgments: Analysis of the Wrong Approach of Russian Courts
Although the New York Convention is applicable to the recognition and enforcement of foreign arbitral awards, the Convention has a parallel application in Russia — judges employ the Convention for the recognition and enforcement of foreign judgments. In this article, the author demonstrates this practice. The article contains four parts. In the first part, the author provides the results of his study. The author scrutinised cases dealing with the recognition and enforcement of foreign judgments in Russia which had been considered by Russian Arbitrazh courts (state courts) in 2008–2016. The author found at least 60 decisions in which the New York Convention has been applied to the recognition of foreign judgments in Russia. The author identifies reasons which lead judges to such erroneous practice. Among them, the author notes an unsuccessful wording of the Russian Arbitrazh Procedure Code, unwillingness of high courts to pay attention to the problem as well as poor knowledge in the field of commercial arbitration amongst some judges. The erroneous application of the New York Convention has its own consequences. The author gives the relevant examples. The most common way is invoking Article V(1)(b) and Article V(2)(b) of the New York Convention by judges dealing with petitions for the recognition and enforcement of foreign judgments in Russia. Finally, the author calls to change the erroneous practice and apply the New York Convention in a proper way.
Keywords: recognition and enforcement of foreign judgments, New York Convention
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Vladimir Slyshchenkov Seller’s Duty to Transfer Right of Ownership in Connection with Some Problems of Modern Russian Sale
The article attempts to substantiate understanding of alienation (transfer of ownership) under contract of sale in unity with delivering to the buyer either possession or a right to take possession of the thing purchased. The seller does not have a duty to transfer right of ownership separately from a duty to deliver the thing. It is submitted, accordingly, that alienation as such irrelative of delivery of the goods, i.e. in isolation from securing for the purchaser either possession or a right to take possession of the thing, cannot be regarded as performance of a contract of sale. The research from this perspective focuses on urgent problems of domestic regulation of sale, namely, (1) legal force of a contract of sale of the other’s thing, (2) delivery of the thing sold as a legal transaction and (3) double sale. Rethinking of the seller’s duty to transfer right of ownership so undertaken helps to achieve persuasive solution of these issues in strict compliance with the effective legislation.
Keywords: sale, sale by non-owner, double sale, assignment of right of ownership, performance of obligations
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