ARCHIVE FOR 2017 RUSSIAN
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Октябрь 2017
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
K. Bechet-Golovko State liability in tort: public or private law? This paper analyses the main aspects of tort liability under
French public law, its historical development and diversity
of its forms. It looks at the State Council’s recognition
of the general legal principle of the state liability in tort
under public law, at the evolving liability for negligence
and the emerging strict liability based on the risk theory
and the principle of equal distribution among citizens of
financial obligations under public law and in the form of
liability arising from administrative decisions for the consequences
of adopting statutes, signing international
treaties and agreements, and inflicting damage during
amenity upgrades.
Keywords:
state, tort liability, strict liability, French law
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T.K. Andreeva The scope of government responsibility for judgment execution This paper discusses government tort liability in the execution
of judgments in the context of the Convention for
the Protection of Human Rights and Fundamental Freedoms
and the relevant case-law of the European Court
of Human Rights. It starts with the idea of applying the general
standards and requirements of Article 6 “Right to a fair
trial” to the execution of judgments, including the state
obligation to make it effective. The scope and grounds
of government liability are examined as compensation for
damage resulting from the non-execution of judgments.
Some trends are outlined in the domestic court approaches
to compensation from public funds and satisfaction to
the injured party for non-execution.
Keywords:
execution of judgments, state liability in enforcement proceedings, compensation from public funds, scope of liability
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M.A. Erokhova Conditions of liability of the treasury for wrongful acts by public bodies. Problems of interpretation by the Russian Federation supreme court of the civil code provisions in 2017 The author exemplifies the interpretation of conditions of
liability of the Treasury with the RF Supreme Court cases
in the year 2017. The main issue is establishing harm and
whether it involves implementation of the right being hampered
the wrongful acts of public bodies. In 2017, different
Supreme Court panels has taken opposing positions
on the issue, thereby leading to legal debates. Causation
and wrongful acts by public authorities are also analysed.
While causation is a case-specific question that cannot be
answered in an abstract manner; a wrongful act should
be assessed in terms of its outcome rather than formal
compliance with the rule of law by a government official.
This paper is intended for practising lawyers as it reveals
trends in judgment practice.
Keywords:
liability of Treasury, state liability in tort
A.A. Yagelnitskiy Deviation from the principle of full reparation for damage caused by the state Liability of the State is a relatively new chapter in the doctrine
of tortious liability. In the 19th and 20th centuries,
European jurisprudence abandoned the principle of sovereign
immunity “the king can do no wrong” and supported
compensation for individuals suffering damage as a result
of wrongful acts by public authorities. Though the general
rule of State liability has prevailed, different legal systems
demonstrate different approaches to the scope of compensation
for harm sustained and to the range of damages
recoverable from the State. The article describes some
of the techniques that have been used by judges to substantially
deform the principle of full reparation for damage,
which represents a fundamental principle of liability
under private law and should certainly apply to public
authority liability in tort.
Keywords:
state liability in tort, losses, bases of civil liability, contributory negligence
A.K. Gubaeva Compensation for unlawful government acts and trajectories of tort law content This article describes the impact of modern justice on
the development of a civil-law mechanism of individual
rights protection against unlawful acts committed by
public, local authorities and their officials. The author
notes a positive trend emerging in judicial approaches
that pursue a balance between public and private interests
of the parties involved in legal relations in civil law.
Lack of legislative developments in the system of liability
for harm caused by official acts does not preclude any
substantive change in the compensation scheme. Hence,
there is a gradual departure from the principle of guilt,
a legally appropriate (benefiting the victim) approach to
the relationship between the notion of ‘lawful’ and the notion
of ‘wrongful’ when categorising complex cases involving
the damage or harm caused by an unlawful official
act (omission).
Keywords:
government liability in tort, public tort, unlawful acts committed by authorities, unlawful acts committed by officials, compensation, principle of guilt, protection of civil rights
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Press Release
Theory and practice
M.L. Galperin Enforcement principles. Version 2.0 The author states that lack of formulated principles of enforcement
proceedings, which should be translated into
the legal framework for their development, does not allow
qualitative improvement in the efficiency of these
proceedings. The fundamentals of modern enforcement
need to be formulated with a view of rebalancing the interests
of debtors and creditors to ensure the equality
of arms, pragmatic approach, and creditor’s pro-active
role. The author also distinguishes one principle of justice
which is inherent in enforcement proceedings but is
extrinsic to procedural law.
Keywords:
enforcement proceedings, principles of law, fairness, equality
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K.A. Barysheva, D.M. Maksimov Cross-border mirror trades: private law nature and liability risks The paper explores the legal nature of mirror trades at the international
investment market. The authors analyse the level of
private law protection and validity of such transactions and raise
arguments for their de jure recognition. In economics, the mirror
trading is defined differently; the legal definition is based on compliance
history of financial regulators. The paper is instrumental
in assessing the risks of mirror trades in criminal law and their
classification as a money laundering offence by financial regulators
in the USA, UK, and Russia. The kind of mirror nature comes
from combining various purchase and sale contracts whose beneficiaries
try to disguise the underlying economic substance of
transactions. These transactions are not presumed illegal but are
under close scrutiny by governments because of easy flow of
capital between countries. Deutsche Bank’s recent operations in
Russia and the operations of Bank of Credit and Commerce International
(BCCI) between the 1970s and 1980s serve as a typical
example of mirror trading. The positions taken by New York State
Department of Financial Services and Britain’s Financial Conduct
Authority on mirror trades are carefully examined. The authors
also analyse the current level of anti-money laundering legislation
and countermeasures in Russia as well as market manipulation
practices and the effectiveness of banking supervision.
Keywords:
mirror trading, compliance, money laundering, plea bargain, shady transaction, market abuse
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N.V. Ivanov Compensation for infringement of exclusive rights: the problem of determining the extent of liability The article examines reasons for the problem of disproportionate
responsibility for exclusive right infringement
as well as suggested approaches to solve it. It analyses
the Russian Federation Constitutional Court Decision No.
28-P of 13 December 2016 and its impact on the jurisprudence
and new developments in the regulation. The combined
(ambivalent) approach to the nature of compensation
is asserted as a reasonable approach combining
restorative and moderately punitive features.
Keywords:
protection of exclusive rights, responsibility for infringement of exclusive rights, compensation for infringement of exclusive rights, statutory damages
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O.A. Makarova A new stage in the development of legislation on public companies A year has passed since the entry into force of Federal
Law No. 236-FZ of July 3, 2016 “On Public Companies
and Amendments to Certain Legislative Acts in the Russian
Federation”, and it is already possible to analyse
the effectiveness of the newly introduced organisational
form in comparison with two other types: state-owned
corporation and state-owned company. This research
supports the conclusion that there is some similarity between
the above forms of legal entities alongside need to
search for an optimal formation for a legal entity created
by the government.
Keywords:
state-owned legal entities, state-owned corporation, state-owned company, public company, joint-stock company with government involvement, corporate bodies
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A.S. Vlasova, N.M. Udalova Founder (participant) right to court ordered company liquidation This paper analyses the specific aspects of the right of
the founder (participant) to apply to the court to ‘wind up’
a company if it can’t achieve its core purpose, including
if its operations are significantly hampered or impossible
(Article 61 para 3(5) of the RF Civil Code). As suggested
by the authors, this right is intended to protect
participating interests and to exclude all companies with
disrupted corporate relations from the business relationships,
for example, in the case of a corporate conflict.
However, the analysis of law enforcement practice
demonstrates lack of clarity regarding the application of
the above provision, inter alia, resulting from uncertainty
about the company’s core purpose. Based on the civil law
approach considering the company an independent entity,
it may be reasonable to abandon such a radical way
of problem-solving. Therefore, the liquidation provision
should be replaced with alternative remedies.
Keywords:
compulsory liquidation, company’s core purpose, profit as business goal, rights and responsibilities of corporate founder (participant), corporate conflict, corporate relations
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D.G. Golskiy May or must the court recognise and enforce the annulled arbitration award in accordance with art. V of the New York convention? The author uses different (literal, historical, teleological
and normative) ways of interpreting the provisions of
Art. V of the New York Convention in order to understand
the essence of court powers exercisable in recognition
and enforcement of the vacated award. In particular, it is
analysed whether the court has discretion in the issuance
of exequatur or this rule is mandatory and leaves the court
with no choice but to refuse recognition and enforcement
of the set aside arbitration award.
Keywords:
arbitration, vacation of the award, recognition of the vacated awards, the New York Convention, enforcement of the arbitration award
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