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Декабрь 2018




Maria Erokhova On Reduction of Court Penalties
Case Comment on the Judgment of RF SC No. 305-ЭС15-9591, 5 June 2018 The author analyzes the Judgment of the Supreme Court of the Russian Federation which overturned the decision of the court of cassation on refusal to reduce the judicial penalty and forwarded the case for new consideration. The author believes that the Supreme Court spoke in favor of lowering the court penalty, not according to art. 333 of the Civil Code of the Russian Federation as disproportionate to the consequences of non-performance of an obligation, but as disproportionate to something else that the court did not directly name. Most likely there was a view to reducing the judicial penalty as disproportionate to the non-execution of the court’s decision in time. The author expresses an opinion on the possibility of reducing the penalty by applying, by analogy, art. 333 of the Civil Code. The author believes that the lack of a mechanism to reduce the judicial penalty stops judges from awarding large fines that could affect the will of the debtor. In addition, in the Judgment of the Supreme Court of the Russian Federation, a position is expressed on the effect of the decisions of the Plenum in time: it must apply the decision that is valid at the time of the award of the judicial penalty. The author agrees with this position with regard to a court penalty, but believes that it is dangerous for other substantive law issues: people relied on the interpretation of the law as proposed by the decision of the Plenum, but the court can apply another new decision with a different interpretation. This leads to the unpredictability of court decisions.
Keywords: reduction of the court penalty, the effect of the Plenum’s decision in time, court penalty
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Alexander Safonov The Fair Priority of Creditors
Case Comment on the Judgment of RF SC No. 310-ЭС17-20671, 23 July 2018 The commentary analyzes the problem of subordination of the claims of the entities controlling the debtor in bankruptcy by example of a claim to the debtor acquired by its shareholder as a result of subrogation after shareholder’s payment under a guarantee. The author comes to the conclusion that it is necessary to extend the rule on the subordination of the claims of debtor’s shareholders to the entities controlling it. In this case, in order to maintain a balance of the interests of creditors, it is proposed to use the principle of a rebuttable presumption. The claim of a creditor that is the debtor’s controlling entity arising as a result of subrogation in suretyship is subject to subordination unless such creditor proves that the company fell into bankruptcy for reasons beyond its control and that at the time such claim arose there were no reasonable doubts about the debtor’s solvency.
Keywords: entity controlling a debtor, subordination of the claims of creditors, bankruptcy
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Sergey Usoskin Arbitrability of Disputes out of Contracts Concluded According to Special Procurement Procedures (Law No. 223-FZ): A Step Forward and a Jump Back
Case Comment on the Judgment of RF SC No. 305-ЭС17-7240, 11 July 2018 The note discusses the decision of the Supreme Court that confirmed arbitrability of disputes arising out of contracts state-owned companies enter into through regulated procurement procedures. It considers the risks created by the Supreme Court’s finding that an arbitral award may be contrary to the public policy if it is connected with «expenditure» of public funds.
Keywords: international commercial arbitration, domestic arbitration, arbitrability, public policy
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Kirill Nam Routine Pre-contractual Liability and Contracts with Protective Effect for Third Parties
Judgment of the German Supreme Court of 28 January 1976 VII ZR 246/74 with a Comment This decision, also known as Salad Leaf Case, is one of the most important in German law of obligations. Although decided a long time ago, in 1976, it is still relevant today. This is confirmed by the fact that in the beginning of 2000s the authors of the reform of German law of obligations borrowed the conclusions reached in the judgment, as well as its argumentation. The court had to resolve two principal issues related to the doctrines of pre-contractual liability and protection of third parties to a contract. By combining these doctrines, the court awarded compensation to a third party for damage caused before the contract in question was formally concluded. There are at least two reasons explaining why this judgment should be of a great interest to Russian lawyers. First, it shows that pre-contractual liability, which has recently appeared in the Russian Civil Code, could arise in relation to consumer contracts. This makes this type of liability more widespread than one would expect. Secondly, it demonstrates the operation of a legal doctrine which is alien to Russian law and which extends on some third parties protection given to a party to a contract. This doctrine encourages a contractual party to take care of not only the other party’s interest but also of the interest of those related to the other party.
Keywords: pre-contractual liability, compensation of damages, protection of third party, good faith principle
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Sergey Budylin When Both Parties Act in Bad Faith: a Solomonic Decision
A Comment on the Judgment of the Supreme Court of Israel of 22.08.1993 in Eximin SA, a Belgian corporation v. Itel Style Ferarri Textiles and Shoes Ltd, CA 3912/90 In this case, decided by the Supreme Court of Israel in 1993, in dispute was the issue of the seller’s liability before the buyer for the breach of third-party rights by the design of the goods sold. Should the buyer bear the losses caused by the breach, or should the seller compensate the losses of the buyer? The Court decided that in this case both parties should have realized the risk of a breach, but did not wish to discuss the point with the other party in the hope that if things go wrong, the losses will be borne by the other party. In the opinion of the Court, both parties acted with a lack of good faith. In the end, the Court issued a Solomonic judgment, ordering the parties to share the losses equally, although the current legislation made no such provision.
Keywords: good faith, seller’s liability, third-party rights, Israel, intellectual property rights, protection of intellectual property rights
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Gadis Gadzhiev Regulatory Compliance Verification Combined with Tort Lawsuits Is an Effective Way to Protect the Rights of Entrepreneurs
Commentary on the Judgment of the Constitutional Court of the Russian Federation No. 29-П, 6 July 2018 The article contains a commentary on the new legal position of the Constitutional Court of the Russian Federation, the general meaning of which is that the interpretation of the provision of clause 1 of part 3 of article 311 of the Arbitrazh Procedural Code of the Russian Federation made by the Constitutional Court of the Russian Federation in connection with the complaint from Albatros LLC provides additional opportunities to hold public authorities accountable for harm. By skillfully combining ways of protecting the rights of entrepreneurs, one can realize a goal that is implicitly present in the norms of the Civil Code of the Russian Federation dedicated to the tort liability of state bodies, and which consists in constructing the composition of this responsibility as special and more preferential for applicants in relation to a general tort (art. 1064 of the Civil Code of the Russian Federation).
Keywords: tort liability, protection of civil rights, review of judicial acts, principle of stability of legal regulation, challenging bodies
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Vadim Belov Automatic Offset of Mutual Claims: Global Experience and Provisions of the Civil Code of the Russian Federation
It is well known that the rules of art. 410–412 of the Civil Code of the Russian Federation determine the conditions under which an offset may be made at the request of one party. It is generally recognized that, in the absence of even one of these conditions, the offset may be made only by contract. However, the study of the norms of the Civil Code of the Russian Federation testifies to the presence in it of a number of examples of a different kind, namely, cases when mutual claims are set off automatically, also called ipso jure offset (by law). In this article, these norms are identified and analyzed; as a result, it turns out that they are sufficiently numerous and meaningful that by inductively summarizing the provisions they contain, they form a number of regularities and conclusions indicating that we have an ipso jure offset as a special legal institution that is not only completely unexplored, but also, it seems, just now discovered.
Keywords: offset of mutual claims, automatic offset, unilateral offset, contract offset, court offset
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Dmitry Abushenko Agreement on Restitution after Void Contract: Reflections on Procedural Machinery to Implement It
The article discusses issues arising in the analysis of the procedural aspects of the implementation of the institution of restitution agreements provided for by clause 3 of art. 431.1 of the Civil Code of the Russian Federation The author believes that this norm contains a unique mechanism from the point of view of the logic of the judicial procedure, when the issuance of one judicial act related to the consideration of a dispute on the merits is contingent upon the agreement of the parties, while another judicial act (related to the first) within the same legal proceedings has already been rendered by the court. Without questioning the premise of the admissibility of the conclusion of settlement agreements that change the restorative consequences applied by the court in its decision, the article nevertheless defends the idea of a fundamental difference between the settlement agreements themselves and the restitution agreements concluded in accordance with clause 3 of art. 431.1 of the Civil Code. In addition, critical comments are made regarding the mechanisms for procedural implementation of the institution of restitution agreements proposed in the scholarly and practical literature (making a court decision without taking into account the agreement reached by the parties, using the institution of changing the means and the procedure of execution of a court decision, etc.) The applicability of the institution of separate court hearings is analyzed in detail and the conclusion on regulatory obstacles that exclude the operation of this institution for the purposes of implementing restorative agreements is substantiated. In conclusion, the main research areas that could ultimately ensure the mutual harmonization of the institution of restitution agreements with procedural mechanisms (adjustment of the rules governing the institution of separate court hearings, application of conditional transactions and conditional procedural agreements or creation of a completely new procedural mechanism) are highlighted.
Keywords: restitution agreement, settlement agreement, change of the procedure and means of execution of a judicial act, separate court hearing, conditional procedural agreements
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Ainur Shaydullin Decrease in Priority (Subordination) of the Loans of Participants of Legal Entities in Germany and Austria
The article discusses the legislative regulation and judicial practice of Germany and Austria concerning the special legal regulation of loans of participants in legal entities in bankruptcy. The author traces the main historical stages of development of legislation and judicial practice in the mentioned jurisdictions, as well as the modern regulation of certain complex issues. On the basis of foreign experience, the author draws attention to some ambiguous and unresolved issues in the Russian law, namely: in what cases should the loans of legal entities’ participants be decreased in priority (subordinated); how should the concept of an «organization crisis» be interpreted; what is the legal regime for provisions for legal entities’ participants in bankruptcy; in what order should the claims of assignees who have acquired the right of claim on the debtor from the legal entity’s participants be settled; in what cases it is necessary to dispute payments in the pre-bankruptcy period; what are the possible exceptions to the regime of subordination of loans of participants in legal entities, and so on. The author concludes that decisions developed in Germany and Austria on these and other issues can be useful in developing an optimal regulatory model in Russia.
Keywords: decrease in priority (subordination), loan, legal entities’ participants, bankruptcy
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Alexey Ageev Economic Reasons for Concluding Agreements with Suspensive Conditions
Understanding the economic underpinnings of relationships between the parties of a contract is one of the components of effective dispute resolution. Russian courts are wary of conditions that depend on the parties to a contract (potestative conditions), because inter alia it is not obvious to the judges what economic purposes the parties to a contract try to reach by using those «conditional» tools. Economic participants are interested in reducing the costs and risks that inevitably arise when entering into and performing a contract. The suspensive condition is a fairly cheap tool that allows one to realize this interest. Given the reasons for including a suspensive condition in a contract, it is not unusual for one or both parties to influence its occurrence. Moreover, if a contractual obligation depends on a suspensive potestative condition, it is usually beneficial both to the party that can influence its occurrence and to the party that does not have such influence. A serious problem arises when one party has fulfilled its part of the contract, and the condition on which the counter-obligation depends does not occur. The reason for the non-occurrence may be the triggering of a mechanism of cost reduction or risk transfer that was originally incorporated into the contract. However, there are also anomalous causes: a party uses its influence on the realization of a condition in a way not supposed at the conclusion of the contract, or the inherent risk is clearly exceeded. In these situations, to overcome uncertainty of the condition, one needs to analyze the reasons which prevented the condition to occur. In the article, the described issues are examined on the example of common contract reservations such as «I will pay if I get paid», «I will pay if you issue an invoice», or «I will pay if you achieve the result». As a result of the study of the mechanism of reducing costs and risks, as well as the possible reasons for the non-occurrence of the condition, the author formulates rules for resolving disputed cases of performance of an obligation placed under a suspensive potestative condition.
Keywords: potestative condition, suspensive condition, conditioned fulfilment of obligations, conditional contract, transaction costs, contingent transaction
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Ilya Papilin, Maksim Do Review of Judicial Practice in the Application of the New Norms of the Civil Code of the Russian Federation on Options, Option Agreements and Subscription Agreements
This article discusses the practical problems of applying constructions of option for concluding a contract (art. 429.2 of the Civil Code of Russia), option agreements (art. 429.3) and subscription agreements (art. 429.4) that are new to the Civil Code of the Russian Federation. The study of judicial practice allowed us to identify several problems in the regulation of the said agreements: the legal nature of options, the difference in the supply of goods under the option model and delivery by requests, the interrelation of options as derivative financial instruments and options as universal contractual models. In addition, attention is focused on the application by the courts of the rules on subscription agreements, in particular, on how the practice approaches the possibility of collecting a subscription fee in the absence of demand. The authors analyze the most important judicial acts on these issues and comment on the court decisions.
Keywords: option, option agreement, subscription agreement
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