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Ноябрь 2017




Chief editor’s column


Interview of the issue


The Event. Comments of the Experts


Topic of the issue

Yu.V. Tay Accepting the inevitable: Legal services market reform
This paper looks at reform directions for the legal services sector focusing on advocacy monopoly over representing clients in courts, practice standardisation and quality improvement. The author analyses the size and other characteristics of the Russian legal services market to demonstrate the need for a comprehensive set of measures in order to achieve the goals and significantly improve the quality of legal services. One specific mechanism is being proposed to secure litigation privilege, improve access to legal advice and ensure its high quality by raising professional standards and introducing professional regulations for legal service providers.
Keywords: advocacy monopoly, legal services market reform, litigation privilege, legal aid system
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A.N. Latyev Commercial forms of professional legal services
The draft Concept Paper regulating the market of professional legal services addresses complex issues involving the effective use of forms of legal business organisation. The current regulation imposes many restrictions which render lawyer associations less competitive. In particular, it requires personally signing a contract with the client, and disallows division of management functions, legal operations, profit distribution, advocate’s work under employment contracts and so forth. The author draws the conclusion that these restrictions can be eased without undermining the essence of advocacy and basic guarantees of its independence.
Keywords: reform of the legal profession, bar association, advocacy, lawyer association, forms of legal business organisation, special capacity
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E.N. Moiseeva Reforming the legal services market in Russia: a sociological analysis
The paper presents a sociological view on the reform of the legal services market in Russia. Using empirical data, the author provides an assessment of the two draft pieces of legislation proposed by the Association of Russian Lawyers and by the Justice Ministry. The author discusses the feasibility of the proposed measures and whether they will help improve the quality of legal services for citizens, which is the key reform objective set out by the government. The central discussion points are whether it is necessary to establish entry barriers for all legal representatives and what kind of barriers; and whether the Bar, in its current state, can unite all judicial representatives and how it will adjust to market needs. The author concludes that introducing a requirement of compulsory legal education for all legal representatives will not improve the quality of legal services, while the implementation of the measures proposed by the Justice Ministry will have a positive effect on the legal services market. In particular, it will help equalise market opportunities for advocates and legal businesses. However, it is difficult to predict what will be the impact of these measures on quality in legal aid as it depends on disciplinary and enforcement actions within the legal community.
Keywords: legal services market in Russia, reform of legal services market, advocates’ monopoly, legal education, legal representation, quality of legal aid
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G.M. Davidyan, T. McDonald Is it a high price for the public interest?
This article explores the reformation of the profession of lawyers that provide legal services. There is no special legal regulation in Russia. The authors conclude that the public interest in improved quality of legal assistance can only be achieved by bringing together all legal advisers in one professional community with established rules of professional conduct and effective mechanisms of legal advisers’ responsibilities to clients. However, the single requirement of legal education for representation in court will not solve the problems facing the Russian legal services market today.
Keywords: lawyer, advocate, legal services, reformation of the legal profession
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R.A. Taradanov Lawyer’s cartel // Review and translation of Richard Posner’s essay “The material basis of jurisprudence” in the context of the planned legislation of a professional monopoly on representation in court in the Russian Federation
Richard A. Posner in 1993 compared the modern legal profession with the medieval cartel. He compared the legal profession with a cartel and a factory and expressed a number of curious conclusions about the causes and consequences of creating a cartel in the field of legal services. Since such a monopoly in United States is most prominent, the conclusions made by one of the honoured American lawyers can be interesting.
Keywords: lawyer’s monopoly, legal services, competition
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A.V. Vasin, J.V. Zagonek Admission of foreign lawyers to national legal services markets: overseas experience and its relevance in light of future legal reforms in Russia
The article examines the experience of jurisdictions such as the USA, England, France, Germany, India, China and Singapore in addressing the issue of permitting foreign lawyers to provide legal services in their respective markets. The authors assess the applicability of relevant foreign solutions to the Russian legal environment and make certain suggestions with respect to the future regulation of the legal profession in Russia.
Keywords: foreign lawyer, legal practice, chambers, bar association, authorization, law degree, disbarment
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T.S. Nikiforova, K.M. Smirnova Will robots replace lawyers?
This article looks at trends affecting the legal profession globally and in Russia. It analyses how high technology changes the legal employment market and the delivery of legal services. The authors use the example of lawyer’s role in court to demonstrate the possibilities and pitfalls of automation in US and Russian litigation, including the practical aspects of smart contract applications. Infrastructure constraints might reduce automation in practice. The article also estimates the Russian legal services market size and compares it against foreign markets. It is suggested that innovation will improve access to legal services and increase their amount in the business sector rather than reduce the number of lawyers in the market.
Keywords: legal tech, legal services market, advocates’ monopoly, automation of legal services, smart contracts, artificial intelligence, legal bots, robot lawyers
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Discussion Board

Yu.E. Monastyrsky Unlawfulness as the basis for awarding damages
The publication provides a substantiation of the notion “unlawfulness” in the civil law sense as the final characteristic of conduct. It opens the possibility to resort to adequate means of judicial protection. Considering the legal category of “lawfulness” as being a mere compliance of actions to the law is still quite applicable in the fields of criminal and administrative legal regulation, but the author believes it to be obsolete and hindering the implementation of the principle “Everything that is not forbidden is permitted” which lies at the very heart of the colossal modern codification of civil law in the RF. When considering claims on the recovery of damages courts are guided by the Soviet concept. They put proving unlawfulness as a preliminary condition, whereas its establishment must be their prerogative function. Such suits dependent on judicial discretion are frequently dissmissed with appropriate reasoning. This approach does not encourage the use of the most important legal remedies protection by commercial turnover participants.
Keywords: wrongfulness, guilt, damages, misconduct, legal basis for liability


S.Yu. Filippova Russian private law: consistency principle and sociocultural context
This paper reviews the purpose of regulation of private relations. It needs to be clarified to make the regulation consistent. The author critically evaluates an excessive reliance over foreign practices and models, which may lead to a dilution of national identity of the Russian legal system.
Keywords: civil law, civil legislation, civil code, private law, Russian legal system
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S.P. Stepkin Regulatory impact assessment as a tool at the stage of legislative initiative submission to the state duma
The paper analyses the problem with the quality of Russian legislation and the prospects for its improvement at the stage of receiving legislative initiatives in the Federal Assembly of the Russian Federation. The author considers Regulatory Impact Assessment (RIA) to be an important tool which needs to be made mandatory as part of the legislative process stage. The existing RIA procedure is focused on a narrow range of legislative initiatives, is conducted by the Russian Ministry of Economic Development, and is directed to the federal regulatory decision-making and practice. The author emphasises the importance of regulatory impact assessment by independent and disinterested experts, including relying on international experience.
Keywords: regulatory impact assessment (RIA), civic engagement, legislative initiative, lawmaking, legal monitoring, draft law
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News of the community


Press Release


Theory and practice

S.V. Bakhin, I.Yu. Eremenko Unilateral economic “sanctions” and international law
Unilateral coercive measures are being treated as sanctions unfoundedly. Such measures are applied for political or economic pressure, derogation of sovereignty or profit making. This practice is inconsistent with the general principles of international law, interferes with the world trading system and violates human rights. International integrative groups use the same unilateral coercive measures which are illegal as well. Only the measures established by the UN Security Council under Chapter VII of the UN Charter and warranted with the special procedure, which disallows such measures for unilateral benefits, constitute sanctions. These guarantees are absent when unilateral “sanctions” are applicable. However, in accordance with the GATT and the GATS unilateral measures can be adopted when any Member determines any kind of situation as a national security threat. Nowadays international relations need codification of international rules which would regulate unilateral economic measures, their scope and procedure.
Keywords: economic “sanctions”, countermeasures (counter-sanctions), economic measures, retaliatory measures, coercive economic measures, coercive measures, retortions, reprisals, unilateral “sanctions”, embargo
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A.A. Vishnevskiy Statements of circumstances: their efficiency
The paper considers the efficiency of the statement of circumstances in the light of its purpose in contractual relations. The author insists that it cannot be efficient in its current form under the Civil Code.
Keywords: statement of circumstances, misrepresentation
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R.M. Yankovskiy Convertible loan: deal structure and regulatory issues
Convertible loans have long been under consideration in the context of legislative efforts to support innovation. However, so far none of the proposals has been enacted into federal law. The legislation proposed by the Internet Initiatives Development Fund has been finally submitted to the State Duma this year. Therefore, the author finds it necessary to recall the practical problems with convertible loans and challenges facing the legislature.
Keywords: convertible loan, shareholders agreement, stock option, substitute decision
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A.I. Frolov Derivative obligations in civil law
This paper deals with the notion of derivative obligations, which is proposed to be introduced into legal science and business practice. Derivative obligation’s purpose and value are determined by its functional bond with another (underlying) obligation. The importance and characteristics of this bond are explained. The derivative nature of indemnities, pre-contractual obligations, options, representations and warranties, break-up fees, and l’astreinte also feature in the analysis. Correlation is considered between the derivative obligation, the accessory obligation and nonprofit legal relationships in civil law.
Keywords: obligation, derivative obligation, accessory obligation, nonprofit legal relationships, option, pre-contractual obligation
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M.F. Zenkova Limitations on the transferability of interest in an LLC in insolvency proceedings
The paper discusses certain issues regarding the application of the provisions of the Limited Liability Companies Law which relate to the limitations on the sale of shares in an LLC during the course of insolvency proceedings. In particular, it discusses the way in which shareholders should exercise their pre-emptive right to buy out shares in the event of another shareholder’s insolvency. The article also analyses whether a prohibition on the sale of shares to third parties in a company’s articles of association is effective in the event of a shareholder’s insolvency and whether, following a sale of an insolvent shareholder’s shares to a third party, approval is needed from the other shareholders to transfer these shares to the third party.
Keywords: limited liability company, interest in an LLC, transferability of interest, insolvency of an LLC member, buy-out of shares in insolvency proceedings
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G.I. Melikov Indemnity and liquidated damages in commercial transactions: a comparative overview
This paper is dedicated to the evolving institution of indemnity in its correlation with the “indemnity” under Anglo-Saxon law. The paper reveals the legal nature and function of indemnity and presents a comparative analysis of indemnities and liquidated damages. It also describes the functional similarities and differences deriving from the legal nature of indemnity.
Keywords: indemnity, contractual indemnity, hold harmless, penalty, liquidated damages
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N.N. Ostroumov Modern legal regime of montreal convention for international carriage by air has entered in force for Russia
In light of Russia’s accession to the Montreal Convention for the Unification of Certain Rules for International Carriage by Air and its implementation in the Russian legal system, this article provides a brief but in-depth analysis of the Montreal Convention in comparison with the Warsaw Convention 1929 for the Unification of Certain Rules for International Carriage by Air and the Russian legislation. The author (i) provides the scientific and theoretical evaluation of the legal mechanisms created by the Montreal Convention in order to facilitate their correct use and application, (ii) identifies the fundamentals and the advantages of the new set of rules for international carriage by air, and (iii) analyses the legal and socio-economic consequences of Russia’s accession to the Montreal Convention along with the strategic goals of the Russian case law. The article focuses on issues such as the carrier’s liability towards passengers for death and personal injury, cargo and baggage claims, late delivery, recovery of damages. It also covers the issue of claims against the carrier. The article concludes that the Montreal Convention can still be applicable in Russia despite some conflicting rules of the national legislation, which require further improvement.
Keywords: air carriage, liabilities, passenger, cargo, Montreal Convention, Warsaw Convention
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Foreign experience

N.S. Shatikhina, N.N. Mosunova Criminal Finances Act 2017, or new risks for russian citizens
This article provides an overview of the new UK legislative framework against money laundering. The newly adopted legislation may pose more risks to Russians that have their assests in the UK because of an extended use of unexplained wealth orders. These orders can now be obtained out of court to secure subsequent injunctions over contested assets.
Keywords: Criminal Finances Act 2017, money laundering legislation, recovery of criminal proceeds, extraterritorial application of the criminal law, English law
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