ARCHIVE FOR 2019 RUSSIAN
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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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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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