Журнал ЗАКОН

Interview with Reinhard Zimmermann, a director of the Max Planck Institute for Comparative and International Private Law, by Alexander Vereshchagin, Editor-in- Chief of “Zakon” Journal

Comments by V. Yarkov, E. Kudryavtseva, D. Maleshin, D. Tumanov, A. Smola, D. Volodarskiy, N. Sutormin, I. Kondrashov, V. Biryukov, R. Bevzenko, V. Avilkin, I. Fast, A. Molchanov

This article (for the first time in domestic literature) attempts to collect, analyse and systematise all cases under the Civil Code of the Russian Federation that involve the rights to unilateral termination of contracts/obligations, repudiation and unilateral modification. The evidence collected along with the conclusions reached by the author during his study could be used as a basis for a general doctrine on unilateral actions allowing for modification and termination of legal relationships. In particular, the author establishes and proves one indispensable condition for the admissibility of such declarations of will ― their recognition should not affect anyone’s private rights and legitimate interests, and their discharge should be a remedy for restoring the rights as well as the interests.

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Keywords: obligation, contract, unilateral termination of obligation, unilateral termination of contract, unilateral modification of obligation, unilateral modification of contract

This paper explores the choice between estoppel, waiver of right of withdrawal and reasonable time from the perspective of Article 450.1 (5) of the Civil Code, German legal doctrine and case law. The author believes that the right choice is necessary for the application of Article 450.1 (5) and determination of its place in the system of law. The author also considers cases where these civil law provisions may apply, and proposes approaches to solving related issues.

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Keywords: estoppel, reasonable time, right of withdrawal

This article is devoted to the question whether it is possible to exclude by parties’ agreement the customer’s right to ungrounded unilateral termination of the commercial services contract. Having analysed Article 782 (1) of the Russian Civil Code on the basis of tests proposed in the SAC Plenary Resolution “On Freedom of Contract and its Limits”, the author concludes that domestic literature and judicial practice have found only one convincing argument in favour of the imperative nature of the rule in question in relations between entrepreneurs: the services provided are connected with the personality of the customer. At the same time, relying on C. Schmitt’s concept of a normal situation the author demonstrates that Article 782 (1) applies imperatively only to the services which relate to the customer’s personality and do not go beyond its limits. In view of the above, the author concludes that the abstractness of the legal norm limited by the “normal situation” criterion requires determining either the dispositive or imperative nature of this norm each time and in respect of each specific case based on clearly defined standards.

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Keywords: commercial services contract, unilateral termination, imperative nature of legal norm, dispositive nature of legal norm

This paper reviews the scope of application of Article 310 (3) of the Civil Code of the Russian Federation (which provides for a fee for unilateral termination). As a result of his assessment, the author concludes that the imperative rules of Russian civil law are the main obstacle to developing the practice of changing the fee for unilateral termination.

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Keywords: fee for unilateral termination, compensation

Rallies in Moscow. — Changes in legislation on forensic activities. — Prohibition of anonymous wallets. — Law on crowdfunding. — Implementation plan of the “regulatory guillotine”. — Adoption of the Convention on the Recognition and Enforcement of Foreign Judgments. — New Plenary resolutions of the Supreme Court (cassation review of criminal cases, “Moscow’s assistant” and abuse in fixing administrative offences, liberalisation in the field of private international law, transitional provisions of procedural reform). — Law on class actions. — Changes in notarial laws. — Tamara E. Abova and Olga S. Khokhryakova pass away. — 5 years after the liquidation of the Supreme Arbitrazh Court

This article deals with the reform of the courts of general jurisdiction, assesses prospects for the new courts, analyses access to justice issues, and predicts the effects of changes in procedural rules.

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Keywords: cassation, appeal, court of cassation, court of appeal, access to justice

Players on the legal services market are keenly feeling the need to develop self-regulation. Standards are required which would provide a single approach to the entire market and exert ‘soft power’ in relation to all its participants. Such standards should principally rely on the best practices for interaction. At the same time, they essentially function as common practices on the market. These existing common practices of the market must be identified, summarised and formalised. In this paper, the author touches upon the attempt made by the professional community to devise such standards. This attempt is to end up with a Code of Business Practice in the sphere of legal services. Devising a Code of Practice, like other professional standards for lawyers’ conduct, is not aimed at ‘muzzling’ market participants. On the contrary, this is necessary to ensure that the legal profession stays independent.

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Keywords: Code of Business Practice, legal profession, legal services, bad-faith competition, success fee

This article illustrates the key results of the recent arbitration reform in Russia with regard to both legislative changes and jurisdictional trends. The main trajectories in the development of arbitration in Russia are identified based on international practices and global challenges.

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Keywords: arbitration, justice, international law, investment climate

The author reviews the current status of criminal liability for competition- restricting agreements under Russian criminal legislation. The review begins with discussion of elements of this corpus delicti under Russian criminal law. The author explains that even though there are many cases of competition-restricting agreements decided by the national antitrust agency each year, there are no criminal convictions because of strict substantive provisions of the criminal legislation. The prosecution should prove much more elements of corpus delicti related to the effects of competition-restricting agreements, the dolus, and the person who shall bear the responsibility. The most problematic points here are actual anticompetitive effects that need to be demonstrated (as distinguished from per se prohibitions under the antitrust law) and transfer from the level of a corporation (that shall bear the liability under the antitrust law) to criminal liability of a natural person inside the corporation. The concluding part of this article dwells on criminal law amendments proposed by the Russian Federal Antimonopoly Service. The author criticises their approaches to the definition of corpus delicti for several reasons. The main reason is unacceptable simplification of corpus delicti elements to a blanket violation of antitrust legislation. In this case, there will be serious procedural and substantive issues and conflicts in law enforcement. Finally, the topic of proposed punishment is analysed and the conclusion is reached that proposed harsh punishments will not be enforceable.

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Keywords: restriction of competition, corpus delicti, actus reus, mens rea, cartel, punishment

In this article the author analyses the question, who has to prove good faith acquisition of title when a vindication claim is submitted. Is the good faith acquisition the objection of the defendant or does proving to the contrary constitute an element of proof for the property rights of the plaintiff? The article is based on the analysis of judicial and legislative changes of the Russian law. The author maintains that Article 223 (2) of the Russian Civil Code makes a bona fide purchaser for value the new owner — by virtue of the law — of a thing which has been alienated from the owner at his own will, so the plaintiff seeking vindication has to prove the right of ownership; therefore, it is the plaintiff who must prove the absence of the good faith acquisition. The author explains how to obtain evidence of gratuitous acquisition and/or bad faith on the part of the defendant, and admits that in disputes over the rights to real estate one can refer to a registration case as a source of evidence, while titles to movable property are registered in no single source so proving the plaintiff’s right to it is extremely difficult.

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Keywords: possession, vindication, protection of bona fide purchaser, change of burden of proof

Under the rules of article 1152 of the Civil Code of the Russian Federation to acquire inheritance an heir shall accept it (para 1) and the acceptance of a portion of inheritance by an heir means acceptance of the whole inheritance due to him/her, whatever the nature and the whereabouts thereof (para 2). But if an inheritance is located in more than one state and Russia is one of them and heirs accept a portion of the inheritance outside of Russian borders, the question arises if the heirs should also be deemed to have accepted the portion of the inheritance located in Russia? This question arises frequently in the practice of Russian notaries. Its importance increases even more where the heirs have failed to comply with the six-month term for acceptance of inheritance in Russia. Both the doctrine and the Federal Notary Chamber answer in the negative. The author critically reviews doctrinal and Chamber’s opinions on the matter. He comes to the conclusion that the rules of article 1152 of the Civil Code of the Russian Federation being understood literally as well as international law governing the scope of states’ jurisdiction, as it stands, make it possible to answer the question in the affirmative. The approach to the interpretation of Russian legislation suggested by the author could allow notaries to heed the heirs’ interests in the situation described above without violating Russian law.

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Keywords: international inheritance, acceptance of inheritance, conflict of laws in inheritance matters, jurisdiction of state, term for acceptance of inheritance, extraterritorial effect of acceptance of inheritance

This article outlines the prospects for developing domestic rules governing beneficial ownership (the actual right to income) on the basis of preventive disclosure of tax information. To achieve this goal, the authors analyse the main elements of an effective tax disclosure regime under Action 12 of the BEPS plan and EU Directive DAC6 and describe the current beneficial ownership rules in Russian tax legislation. The research findings indicate a low level of legal certainty in the application of the concept of actual right to income in Russian tax practice, which entails the risk of additional tax assessment. At the same time, there is still a significant possibility of raising tax revenues from the application of this concept. As a result, in order to achieve both goals, the authors propose a reasonable recommendation to create a regime of mandatory disclosure of “potentially aggressive” transactions using the concept of beneficial ownership.

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Keywords: BEPS plan, DAC6, beneficial owner, mandatory disclosure rules, double tax treaty