ARCHIVE FOR 2018 RUSSIAN
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Март 2018
CONTENT
Sergey Budylin When the Knowledge of the Director is Imputed to the Company, or A Purely English Bribe A Commentary to the Case Jafari-Fini v. Skillglass Ltd & Ors [2007] EWCA Civ. 261
(30 March 2007)
This was the case of a bribe in relation to a loan facility agreement that came to the Court of
Appeal of England and Wales. One of the questions related to the applicable standard to prove
the existence of commercial bribery (i.e. a major default). The Court applied the civil standard of
the balance of probabilities, though in a slightly more demanding manner. It was also considered
whether the knowledge (of the bribe) of a director of the borrowing company could be attributed to the
company itself as a default under the terms of the loan agreement. In this and in many other cases,
the Court found that the knowledge of the director could be imputed to the company.
Keywords:
England, commercial bribery, standard of proof, imputed knowledge
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Elena Ostanina Pre-Contractual Liability if the Contract Requires Notarial Certification The article analyses a case on pre-contractual liability decided by the German Supreme Court. In
this case the seller changed the price that was previously orally agreed by the parties, and the buyer,
who had already received a loan for the originally specified amount, demanded compensation. The
Federal Court of Justice of Germany concluded that pre-contractual liability should not be used as a
way to force the other party into a contract which should be certified by a notary. The question arises:
should Russian civil law also use a differentiated approach to pre-contractual liability for transactions
requiring and not requiring notarization?
Keywords:
pre-contractual liability, contract of sale, real estate
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FREE TRIBUNE
Vsevolod Baibak, Anton Ilyin, Artem Karapetov, Andrey Pavlov, Sergey Sarbash A Сommentary on the SC RF Plenary Ruling of 21 December 2017 No. 54 «On Certain Issues in the Application of RF Civil Code Chapter 24 on Contractual Assignment of Rights and Debts under an Obligation» The second part of the commentary on the Ruling of the Russian Supreme Court’s Plenum of
21 December 2017 No. 54 «On Certain Issues in the Application of RF Civil Code Chapter 24 on
Contractual Assignment of Rights and Debts under an Obligation». It examines and evaluates the
Supreme Court’s clarifications regarding notification of the debtor of rights transfer, the debtor’s
objections, debt assignment, contract assignment, and procedural aspects of substitution of parties.
Keywords:
assignment, cession, transfer of debt
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Mikhail Galperin Civil Liability in Enforcement Proceedings This article looks at the problems of civil liability in enforcement proceedings and reveals a new
judicial approach to state liability limits in cases of unlawful acts (omissions) by court bailiffs. It is
suggested that any attempts at adaptation of civil liability standards to enforcement proceedings
with the intent of ensuring their «fair» application to respective matters result in an unreasonable
reallocation of non-performance risks and a departure from the economic rationale for enforcement,
and finally will lead to unfulfilled expectations of both creditor and debtor.
Keywords:
enforcement proceedings, damages, state liability
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Sergey Ivanov Challenging of Arbitral Awards on the Grounds of Absence of Competence for Dispute Resolution or Beyond Such Competence. Perspectives of Appealing against Arbitral Preliminary Rulings This article considers practice of circuit (cassation) arbitrazh courts on challenging of arbitral awards
that are given in disputes not covered by arbitral agreement or beyond limits of such an agreement
or in the absence of any arbitral agreement. It also analyses how arbitrazh courts check preliminary
rulings given by arbitration tribunals on the question of their competence to resolve a dispute. Based
on this analysis, the author proposes criteria to determine the competence of arbitration tribunals.
He also criticises arbitrazh courts’ approach that they cannot reverse preliminary arbitral rulings,
including those that confirm tribunal’s competence to consider the dispute. The author suggests that
this results from wrong interpretation of the new rules that give arbitrazh courts the right to control
preliminary arbitral rulings.
Keywords:
arbitration tribunal, arbitral clause, challenging of arbitral awards, preliminary rulings of arbitration courts, arbitral competence
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Guillermo G. Valdecasas Publiciana in rem Actio in Our Contemporary Legal System The prominent Spanish civil law scholar offers in his article an unparalleled theoretical analysis of
Publiciana in rem Actio, a concept which originated in the Roman law. This concept provides the
person in possession who can acquire ownership by acquisitive prescription with protection similar
to that of the owner but does not furnish a shield from the owner (аrticle 234(2) of the Russian Civil
Code). The author looks at the literature of several legal systems that opted for a lower standard of
proof and the «best title» defence. And the conclusion is that Publiciana in rem Actio is in not great
demand in our current legal order.
Keywords:
vindication, acquisitive prescription, long-continued possession, presumption, fiction, proof of title
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