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ARCHIVE FOR 2019    RUSSIAN

Июнь 2019

CONTENT

 

 

Sergey Gromov Preliminary Contract Violation and Abstract Damages
Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС18-12143, 18 December 2018 If, in violation of a preliminary contract, one of parties evades the conclusion of a main contract, can the other party claim damages in the amount of its positive interest? And if it can, is it entitled to use an abstract method of determining the amount of damages? Almost a century and a half ago, the Civil Cassation Department of the Governing Senate essentially gave positive answers to both questions. Last year, the Supreme Court of the Russian Federation left them without explanation and instructed lower instances to sort out the issues of the application of substantive law. A positive answer to these questions is based on pragmatic arguments: there is no reason to force the aggrieved party to seek coercion to conclude the main contract for the purpose of subsequent recovery of contractual damages, thereby complicating the creditor’s protection of its violated interests and increasing the infringing counterparty’s chance to come off clear. A negative answer is based on a number of dogmatic arguments: there is the need to differentiate the regulation of preliminary and main contracts (since these are two different institutions) through differences in the consequences of their violation, which should be determined according to views of the parties on the role of both transactions in the development of their economic relations.
Keywords: preliminary contract, damages, abstract method
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Ilia Ishchuk, Maxim Buzin Market Analysis: Correlation of Legal Form and Economic Content
Case Comment on the Judgments of the Chamber for Commercial Disputes of the SC RF No. 305-КГ18-5239 and No. 305-ЭС18-5242, 10 October 2018 The article provides an analysis of how courts define commodity markets in antitrust cases. Market analysis is an integral element of antitrust investigations, but the choice of methods and format for such research is not always obvious, in particular, due to the conflict of formal legal and economic approaches. An example of such contradiction is a situation in which the activity of a natural monopoly entity can be viewed both within the formal boundaries of a market that is in a state of monopoly and within the wider competitive market in which this company actually operates. The authors agree with the position of the Presidium of the Supreme Court of the Russian Federation, which, on the example of two specific cases, recalled the priority of analyzing the real economic relations of economic entities.
Keywords: antitrust violation, commodity market, natural monopoly, dominant position, market analysis
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Andrey Gromov Content of a Sublessee’s Right to Enter Into a Contract Directly with a Lessor
Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС18-13454, 20 December 2018 When a lease is cancelled before expiration of its term sublessee is allowed to require the landlord to enter into direct lease agreement for the remainder of the term of the original lease. In the recent judgment, the Supreme Court of Russia considered this right of the sublessee and its content. The comment focuses on the issue of whether the sublessee has sufficient legal remedies to ensure that he will be able to use the leased property until the end of the entire term of the sublease.
Keywords: sublease, compulsory conclusion of the contract, preemptive right
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Kirill Nam Absence of Intellectual Property Rights, or When Can the Good Faith Principle Help?
Decision of the Supreme Court of Germany I ZR 65/53 Dated December 14, 1954, and Comments Thereto The following decision of the Supreme Court of Germany, although it was rendered more than 50 years ago, may be of great interest to Russian lawyers — both theorists and practitioners. Issues of copyright and legal regulation of contractual relations between parties were considered in this case, taking into account the principle of good faith. In terms of copyright, the court decided on the possible legal protection of a clothing design intended not for high fashion, but for mass production. When considering the contractual relations of the parties and interpreting the will of the parties, the court, taking into account the principle of good faith, justified the additional obligations for the defendants to take into account the rights and interests of the plaintiff.
Keywords: copyright, principle of good faith, additional protective obligations
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FREE TRIBUNE

Roman Bevzenko Trade Registration and Trade Registers: History and Theory
The article deals with legal issues of registration of legal entities and individual entrepreneurs. Theoretical bases for the development of trade registers are considered. Principles of trade registration (principle of entry, opposability, legality, openness), procedures for challenging false records, and issues of responsibility of the entity maintaining the trade register are analyzed.
Keywords: registration of legal entities, registration of individual entrepreneurs, register of legal entities, public credibility
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Dmitry Abushenko The Procedural and Legal Consequences of an Unapproved Settlement Agreement in the Lawsuit: Experience of Analysis under the Laws of the Russian Federation
This article deals with the problems of procedural and legal consequences of settlement agreements not approved by the court; examines the fundamentally different underlying models, based on which the legislative regulation with regard to signed, but not approved by the court, settlement agreements, could be exercised. An attempt is made to identify some specific features of the specific properties of the legal validity of the judicial ruling on the refusal to approve the settlement agreement. Special approaches to resolve certain particular issues arising in the allocation of court costs are substantiated.
Keywords: settlement agreement, judicial estoppel, court costs
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Konstantin Savryga Agency Problem in Russian Corporate Sector: Superconcentration, Conglomerates and State Control
The article deals with the agency problem in the Russian corporate sector, which arises as a result of separation of ownership and control (vertical agency problem) or any cooperation (horizontal agency problem). The first part of the article explores the nature and causes of the agency problem. The second part analyzes the agency costs arising in the Russian context, in particular, in the framework of superconcentration, diversified holding companies and state-owned enterprises (SOE) and statecontrolled enterprises (SCE). The article also analyzes the issue of agency costs of debt financing. And although there is a widespread view that only a horizontal agency problem is relevant for Russian corporations, the author comes to the conclusion that, according to the empirical data, the vertical agency problem is still strong, especially in conglomerates and holdings with a complex ownership structure, as well as in SOE and SCE. The third part of the article is devoted to institutions that are designed to mitigate agency costs and their effectiveness in the Russian legal and institutional environment.
Keywords: agency problem, agency costs, separation of ownership and control, corporate law, conglomerates, state-owned enterprises, state controlled enterprises, economic analysis of law
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Roman Taradanov Tax Nature of the Rent Paid for the Use of the Publicly Owned Land by the Owners of Buildings on It
The article argues that the rent payable under lease of publicly owned land with privately owned buildings and constructions on it lacks completely contractual character. Having proved that, the article proceeds to enumerate defining features of tax payments that are, it is suggested, also characteristic to the rent for the abovementioned publicly owned land. The article then describes certain important consequences that will follow if courts or the Parliament support the conclusion argued for.
Keywords: land tax, rent, payment for the use of land, freedom of contract, features of a tax payment
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Andrei Timoshin The Moment of Creation of a Pledge by a Property Freeze Order
The article deals with two systems of determining the moment of origin of the sui generis pledge: according to the date of entry into force of the court judgment (Paragraph 5 of Article 334 of the Russian Civil Code) and according to the date of attachment or entry in the state register of the attachment (Paragraph 94 of the Resolution No. 25 of the Plenum of the Supreme Court of the Russian Federation, dated 23 June 2015). Using various methods of interpretation and fundamental theoretical research in the field of civil law, the author demonstrates the advantages and disadvantages of each of the existing systems, providing them with numerous practical examples. The author proposes a temporary solution that allows, on the one hand, to cover most cases of the origin of pledge created by a property freeze order and, on the other hand, to reconcile the existing systems with each other in the way which does not require to change legislation and its official interpretation.
Keywords: pledge created by a property freeze order, attachment, priority of charges, security
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Evgenii Voronin Practice of Applying Institution of Representations According to Article 431.2 of the Civil Code of Russia
The article focuses on the analysis of practice in the application of the institution of representations by domestic courts. The author attempts to identify what exactly courts understand by representations and regarding which circumstances parties can provide them. In determining the circle of persons with the right to judicial protection, the problem of improper interpretation by courts of the main function of the institution under study was identified, and it is noted that holding the parties to an excessive standard of diligence in order to reverify the information provided by them cannot solve it.
Keywords: article 431.2 CC RF, representations, damages, good faith, diligence
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