Журнал ЗАКОН

Case comment on the judgment of RF SC No. 306-ЭС16-5941, 8 August 2017

Case comment on the judgment of RF SC No. 18-КГ17-164, 10 October 2017

Commentary to the Case Pell Frischmann Engineering Ltd v. Bow Valley Iran Ltd [2009] UKPC 45 Damages are usually calculated by representing in economic terms the aggrieved party’s loss due to a breach of contract by the other party. But what if the breach is non-material, breach of a confidentiality provision in particular? In that case the Privy Council laid down clear guidance on how to assess damages: by reference to a «hypothetical negotiation» whereby reasonable parties would agree to allow for breach of the relevant contractual provision entailing compensation. And the fact that the parties would never have reached a deal in reality is irrelevant as it merely demonstrates that both parties are not acting reasonably.

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Keywords: England, Jersey, confidentiality agreement, damages, injunction, international sanctions, Wrotham Park

In its ruling, the Supreme Court answered the questions of whether interest can accrue under article 395 of the Russian Federation Civil Code on the annual interest recovered earlier under the same article (no, it cannot) and on the awarded costs (yes, it can) for a period between the pronouncement of the court order and actual payment. The article examines the Supreme Court’s arguments. Based on the annual interest ratio analysis under article 395 of the Civil Code, the indexation of court awards and the legal nature of litigation costs, the author argues that the Supreme Court’s conclusion allowing interest to be calculated de lege lata under article 395 on litigation costs, which are satisfied yet unpaid or not paid in due time, is not correct. It can be supported, however, from the constitutional perspective. The author shares the view that the article 395 interest accrued on the annual interest that was recovered earlier by the court under the said article due to untimely execution should be treated as compound interest.

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Keywords: compound interest, litigation costs, execution of court order, indexation

In November 2017, Russian Federal Antimonopoly Service (FAS) again came out with a legislative initiative to extend antimonopoly regulation to the use of intellectual property. The author of this paper proves that implementation of such initiative will lead to destructive consequences for innovation market. The functions of exclusive (IP) rights must be taken into account when assessing rightholder’s conduct. In the patent sphere these functions are referred to as inducing inventions, investments in their commercialization and providing consumers with high-tech products. In some markets (for example, pharmaceutical), the implementation of such functions is impossible without maintaining the exclusive dominance of patent holders over their invention. In others (digital markets, telecommunications) it requires the interchange of inventions among different entities through licensing agreements. Such agreements may contain various restrictive conditions, tying arrangements. Antimonopoly regulation, with its emphasis on prices and increasing number of competing entities, cannot be sufficiently sensitive to such needs of innovation turnover. There is a risk that most of the licensing agreements will be declared illegal by the Russian FAS. The author defines civil law instruments (exhaustion, patent misuse, compulsory licensing) which help suppress various unfair strategies of patent holders, without resorting to antitrust laws. Furthermore, she proves that the FAS assertion that antimonopoly legislation is widely applied to the sphere of IP rights in foreign jurisdictions is not correct.

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Keywords: exclusive right, antitrust, FAS Russia, competition, license agreements

The article analyses foreseeability (the foreseeability rule) as a method of limiting contractual damages. It gives a comparative overview of foreseeability rule in different jurisdictions (France, England, Germany) and also considers CISG as an example of international regulation. It is demonstrated that the main trend is the recognition of parties’ will as a key factor for determination of foreseeability. In accordance with the will centered approach, the court, through contract interpretation, must find direct or indirect acceptance by the debtor of the liability for extraordinary consequences resulting from a breach of contract. If debtor’s will to expand its contractual liability is absent or impossible to establish, the risk of extraordinary losses is born by the creditor. The article explores the reasons for the foreseeability rule: idea of justice, law and economics arguments, will of the parties. The author finds the first two reasons unconvincing and believes that the latter is not a justification for foreseeability rule but an alternative to it. Author also analyses relation between foreseeability, fault and causation as well as proposes criteria for distinguishing these concepts.

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Keywords: limitation of contractual damages, foreseeability, fault, causation

The present article overviews the ambush marketing phenomenon as exemplified by sporting events. The author studies various ways of protection against it alongside the correlation between ambush marketing, unfair competition and violation of intellectual property rights. In conclusion, the author gives practical recommendations for counteracting this phenomenon.

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Keywords: ambush marketing, intellectual property rights, unfair competition, false advertising

The subject-matter of this review are conclusions that were reached by arbitrazh courts of the cassation instance in cases where the issue of bringing persons controlling the limited liability company to subsidiary liability was at dispute. The review reflects the specifics of courts’ understanding of the grounds sufficient to establish the fact of controlling persons’ guilt in company’s bankruptcy. Court practice indicates that bringing controlling persons on the basis of the aforementioned ground is quite a challenge for a claimant. One should assemble rather solid evidence in order to prove the casual link between actions of controlling persons and negative consequences that led to the company’s bankruptcy. It is important to make a reservation that the author did not aim to consider cases concerning special presumptions of guilt which are set out in the Russian Federation Law on Insolvency (Bankruptcy).

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Keywords: bankruptcy, subsidiary liability, casual link