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Сентябрь 2018





Igor Arkhipov On the Issue of Challenging Court Settlement Agreement as a Preferential Transaction
Case comment on the judgment of RF SC No. 305-ЭС17-19041 (1, 2), 30 March 2018
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Sergey Budylin How One Should not Write Judgments, or A Case of a Common Power Plant
Case comment on the judgment of RF SC No. 60-КГ18-1, 15 May 2018
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Irina Shitkina Modern Corporate Legislation Development and Trends in Law Enforcement Practices
In recent years, Russian corporate law has undergone substantial changes. Most notably, the amendments to the Russian Civil Code made in 2012–2016. Unfortunately, laws on business entities have not yet been fully harmonized with the provisions of the Russian Civil Code. Executive bodies prefer to implement roadmaps approved by the government, where the declared goals often contradict the legislation adopted in accordance with them. The author states the main trends in the development of corporate law and law enforcement practices. Among the newest developments of corporate law, the trend favoring majority shareholders is most notable. Another notable trend is the unjustified extension of the legal framework to include the non-binding provisions of soft law in legal rules. The author also considers the integration of legislation with other systems of legislation, and notes discrepancies in the goals of legislative regulation. In the authors’ view, legal concepts should be defined and maximally adjusted to the relevant sphere of legal regulation to ensure they are applied effectively to specific relations. In her consideration of law enforcement practice trends, the author note the expansion of judicial discretion, and a departure from normativism to teleological interpretations of the law.
Keywords: corporate legislation, judicial discretion, teleological interpretation of law
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Andrey Panov, Mikhail Kalinin Russian Arbitration Reform: Two Years Later. Analysis of Issues Raised in Court Practice
On September 1, 2016, Russian arbitration reform designed to enhance the arbitration landscape came into force. Two years later, the authors examine the key issues raised by court practice, including consequences for arbitral institutions and arbitration clauses, the exhaustive list of non-arbitrable disputes, application of public policy, and interpretation of arbitration agreements. The analysis of court practice shows that the legislator’s attempts to reduce judicial discretion in relation to deeming a particular category of disputes non-arbitrable and limit the uncontrolled application of public policy are not yet successful. Moreover, after November 1, 2017, many bona fide parties whose disputes were to be administered by arbitral institutions which had not yet received permission to administer disputes in Russia, are now facing a difficult choice: either try to renegotiate a new arbitration clause, or pursue litigation under the usual rules of international jurisdiction over their matters (including abroad). However, the overall effects of arbitration reform are still difficult to assess. A relatively certain assessment of what was successful and what was not can only be done in 2 to 3 years.
Keywords: international commercial arbitration, Russian arbitration reform, arbitrability, public policy
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Artem Tolkachev, Mikhail Zhuzhzhalov Cryptocurrency as a Property — Analysis of Current Legal Status
In spite of intense interest of the government towards the development of blockchain technology, Russia may barely count not only on assuming a leading role, but even on such development at all, if the hostile reaction to its central concept, cryptocurrency, remains. This article argues that cryptocurrency has to be legally recognized as transferrable property already in terms of existing law. This is so because cryptocurrency has no exceptional features in comparison to other virtualized property. Moreover, it is the logical completion of virtualization of property under which the authors understand the change in factors determining the legal relationship: from juridical facts to entries in a register. In the last section, the article demonstrates that attempts to extend on cryptocurrency the ban on issuing currency substitutes are erroneous. As the article examines these problems, it makes references to selected provisions of cryptocurrency bills which should make Russian cryptocurrency legislation of minor interest.
Keywords: money, cryptocurrency, blockchain, information technology
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Svetlana Matvienko Practical Application by Arbitrazh Courts of the Ruling of the Plenum of the Supreme Arbitrazh Court of the Russian Federation No. 16 «On Contract Freedom and Its Limits», March 14, 2014
In the article, the author analyzes the judicial practice of the application of the rules from the Ruling of the Plenum of the Supreme Arbitrazh Court of the Russian Federation «Оn Contract Freedom and Its Limits» for the last two and a half years. A particular emphasis is placed on the positions of courts on the qualification of contractual provisions as mandatory and dispositive, analysis of the practice of interpretation by courts of article 782 of the Civil Code of the Russian Federation, countering unfair contract terms using article 428 of the Civil Code of the Russian Federation, and the application of the contra proferentem principle in the interpretation of a contract.
Keywords: freedom of contract, dispositive provisions, mandatory provisions, interpretation of the contract, unequal negotiating opportunities, contra proferentem, unfair contract terms
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Anastasiya Nozdracheva Survey of Court Practice on the Reduction of Contract Termination Fee
This article reviews the practice of the application of article 310, point 3 of the Civil Code of the Russian Federation. The rule in question enables parties to a contract to agree on a payment of a special fee for withdrawal from contractual relations. The courts have recently favoured the freedom of contract principle, at least by supporting contractual provisions that allow unilateral termination of contract on condition of payment of a certain sum. It is not clear, however, if such an amount should be somehow limited. Considering that the law does not offer criteria for its determination, the supreme judicial authorities gave guidelines to courts on the level of the amount that should be regarded as reasonable. But the courts apply unanimously only one criterion: the fee should be proportional to the consequences of termination of contract. Lower courts are not as consistent on whether the necessary conditions for a fee reduction shall include unfair execution by the creditor of the right to claim the payment and the inequality of negotiating powers when entering into a contract. Differences exist also with regard to the allocation of the burden of proof between the parties of such disputes.
Keywords: contract termination fee, compensation, freedom of contract
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