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Февраль 2020



Chief editor’s column



Interview of the issue

L. Zingales Russia Needs Its Own Case Like Standard Oil
Interview with Professor Luigi ZINGALES, Entrepreneurship and Finance Professor at the Booth School of Business and Director of the Stigler Center at the University of Chicago, co-host of the podcast Capitalisn’t, by Alexander Vereshchagin, Editor-in-Chief of “Zakon” Journal and Alexey Ivanov, Director of the HSE — Skolkovo Institute for Law and Development and of the BRICS Antimonopoly Centre



The Event. Comments of the Experts

Constitutional Amendments and Judicial Independence
Comments by V. Zhuykov, L. Voskobitova, V. Yarkov, T. Andreeva, S. Pashin, E. Alekseevskaya, R. Bevzenko
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Topic of the issue

V.A. Belov So What Is Competition Law?
The author proves that Russian competition law is an area of public law, relatively isolated from other legal subdivisions by its original subject, method and purpose. The subject of competition law is the relations between the state and business entities arising as a result of the latter’s anticompetitive actions; the method is normative prohibitions and individual (administrative) instructions; the aim is to create and maintain (protect) the environment of competition (contest, rivalry, conflict) between business entities. These three factors predetermine the peculiar approach which the article describes as applicable to the legal forms of relations regulated by competition law, to the issues of their subjective composition, origin, protection and defense, and responsibility.
Keywords: competition law, competition, protection of competition, public legal relations, private legal relations, FAS of Russia, FAS powers, subjective rights, interests protected by law
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A.P. Tenishev, M.A. Khamukov New “Cartel Package”: Protection of Public Interests or Myths about Pressure on Businesses
This article analyses the impact of cartels on the socio-economic development of the country and the welfare of its citizens. Having given the examples of the revealed large-scale cartels, the authors conclude that economic collusion has an extremely negative welfare effect, and this requires expeditious government actions. The article discovers the rationale of the legislative initiatives, which were proposed by antitrust authorities, to combat cartels in the current context.
Keywords: cartel, cartelisation, anti-competitive agreements, bid rigging, national economic security, digital economy
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A.E. Pozdnyakova, D.A. Kotova, E.V. Semenova Competition on the Social Network Market
Social networks are a heterogeneous yet dynamic market. Their business model is mostly built around personal data. The authors show how the boundaries of modern antitrust law are changing: personal data is now a commodity and protecting users against anticompetitive practices is part of the antitrust agenda. The first part of the article is devoted to the protection of users’ personal data and personal life, which rights may be violated through abuse of dominance on the social network market. It concludes that protecting users’ personal life and autonomy prevails over the interests of social networks. The second part deals with the most important mergers on the social network market, such as Facebook/WhatsApp, Facebook/ Instagram and Microsoft/LinkedIn, as they have become a catalyst for change in antitrust laws in a number of foreign jurisdictions. This part concludes that mergers on the social media market should be treated by competition authorities with specific approaches different from those applied to concentrations on traditional markets.
Keywords: social networks, antitrust restrictions, personal data protection
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A.Yu. Ivanov Myths of Legal Monopoly, or Why Russia Doesn’t Innovate Despite a Relentless Intellectual Property Protection Regime
The author explores the three myths on which, much like the myth of three whales, the current regime of intellectual property protection in post-Soviet Russia is based, which primarily serves the interests of transnational monopolies to the detriment of Russian economic and human development, especially in the sphere of startup entrepreneurship and innovation. These are the myths of legal monopoly, of great stimulus and of the benevolent foreign investor. The author shows on the basis of numerous economic research and empirical data that the widely accepted in Russian jurisprudence concept of legal monopoly is just a rhetorical method used to deviate from a meaningful discussion about the detriments brought to the Russian economy by the abnormally hefty exemptions for IP rights in Russian competition law; intellectual property protection is not a panacea for incentivising innovation and creativity, and being fully exempted from the competition law it stifles rather than stimulates innovation; and a overly strict regime for intellectual property protection doesn’t make Russia or any other developing country more attractive for direct foreign investors but on the contrary allows global corporations to extract more resources from the Russian consumers without any efforts to bring more production or R&D to the country.
Keywords: legal monopoly, antitrust exemptions for IP rights, intellectual property protection, competition law and policy in Russia, innovation studies, foreign direct investment
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A.N. Vereshchagin, S.V. Glandin Oh, February. Get Ink, Shed Tears!
V.V. Putin’s Fatigue from lawyers — President and Lord God — Attacks on preamble — Judge Aranovskiy and “communist-soviet” system — Double precedent of Sviridenko — Jury trial in V.M. Lebedev figures — The Network case — Sechin sanction toxicity — Qasem Soleimani and international law — Sentence in Germany for sanctions violation — Competition of legitimate interests in Finnish court — Gambia v. Myanmar — Trust bank and Willis’ millions — His Majesty Brexit — Unimpeachable Trump — Dutch court and YUKOS billions
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Discussion Board

V.V. Novikov, Yu.V. Tay Antitrust Law Enforcement: The Views of Court Lawyers
The FAS Russia is an active law enforcement agency with a wide range of stakeholders. This article offers a view on various aspects of antimonopoly enforcement by members of the Association of Antimonopoly and experts of the professional community engaged in antimonopoly enforcement. The study aims to identify some operations of the FAS Russia and domestic courts that are judged by the respondents as “successful” or “requires improvement”.
Keywords: antimonopoly enforcement, FAS Russia, Association of Antimonopoly Experts, GAL Competition Project
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G.A. Esakov Limitations of Civil Law Constructs in Criminal Law
This article is a reply to the article published in the previous issue of this journal and authored by professor Alexander Sergeev. He criticised the criminal legislation and case law in their approaches to some civil law institutions. In reply to his views, the author explains criminal law approaches and tries to justify them following the long chain of cases and theory of criminal law. Three questions are analysed in depth in this article. Firstly, it looks at criminal liability of members of board of directors under Russian criminal law and criminal liability of corporate top managers more broadly. Secondly, it differentiates between corporate executives and public officials, especially in light of the current trend to broaden the definition of the first group. Lastly, it addresses the problem of recovery of damages in criminal proceedings.
Keywords: corporate legislation, criminal liability, special subject, corporate executive, administrative officer, damage
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P.G. Sychev Criminal Justice in the Sphere of Entrepreneurial and Other Economic Activities: Differentiation by Subject Matter or by Subject of Crime?
The State Duma has adopted 16 federal laws and the Russian Federation Supreme Court Plenum passed its Resolution No. 48 of 15 November 2016 to define specific features of criminal proceedings involving crimes in the sphere of entrepreneurial and other economic activities. In fact, these proceedings are differentiated not by subject matter but by subject of crime (crime committer). As the present study shows, there are both theoretical and law enforcement problems; and the question of compliance with the constitutional principle of equality before the law and the court has not been resolved. Therefore, the author concludes that it is impossible for the Code of Criminal Procedure to incorporate a separate chapter on criminal proceedings against entrepreneurs without violating the most important constitutional rights.
Keywords: differentiation, criminal proceedings, economic crimes, entrepreneurial crimes
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Theory and practice

A.S. Selivanovskiy Bonds: An Alternative to Bank Deposits for Individuals?
In the Russian financial market, there is a significant redistribution of individual investment: funds flow from deposits to the securities market as citizens purchase bonds. The two types of investment appear to be similar, but bonds are much more complex and require more attention than deposits. Their comparison reveals that each investment tool has its own advantages and disadvantages, while bonds carry a higher risk of loss.
Keywords: bank deposit, bonds, coupons on bonds, bond defaults, offers on bonds, property tax deduction on bond income
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I.N. Melnikov, N.N. Chernov Practical Challenges to Execution of Shareholders’ Information Rights
This paper addresses main disproportions in Russian case law on shareholders’ information rights stemmed after the 2017 statutory amendments. Based on an analysis of recent court judgments and Russian Central Bank enforcement practice the authors provide actionoriented recommendations for protection of minority shareholders’ rights to information.
Keywords: corporate governance, corporate conflict, right to information, minority shareholders
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A.E. Kirpichev Order Cancellation by Online Store
The article suggests the civil-law qualification of various cases of cancellation of orders in online stores that are encountered in practice. It is concluded that, as a general rule, cancellation of an order should be considered as a withdrawal by a seller, which in the case of a consumer (b2c) contract is permitted only in the instances specified by law. In rare situations, cancellation of an order could mean that the obligation was terminated due to practical impossibility or contract expiration. It is inadmissible to substitute cancellation of the order for the protection of the online store as an erring party to an invalid transaction. Jurisprudence on disputes involving cancelation of orders by online stores shows that achieving a balance of interests of the parties requires proper legal qualification of a particular situation and the application of special legislation on consumer protection only as a special rule in the holistic system of law of obligations.
Keywords: distant sales, consumer protection, consumer relations, withdrawal
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V.A. Kanashevsky The Conflict of Law Issues in the Division of Jointly Acquired Marital Property Located Abroad
The author researches the legal issues of the division of jointly acquired property located abroad, including real estate, cash held in foreign banks, shares of foreign companies, as well as assets belonging to offshore companies and trusts whose beneficiary is one of the spouses. In particular, the article deals with the issues of international jurisdiction, applicable law, as well as qualification of legal concepts of the conflict of law rules.
Keywords: applicable law, spouses, property relations, divorce, division of property, real estate, foreign bank accounts, shares, offshore company, trust, beneficiary, beneficial rights
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Foreign experience

M.V. Agaltsova Ban on Extremist Speech in the USA
In this article, the author demonstrates a transformation of the US Supreme Court approach regarding extremist speech. The prevailing approach in the US today is pro-speech. However, at the beginning of the 20th century the approach was different: criticism of the government was considered dangerous, and thus, open to limitations. Towards midcentury the Supreme Court judges started searching for a more balanced approach between dangerous speech which could lead to undesirable consequences, such as a riot or a coup d’etat, and freedom of speech. The era of McCarthyism (beginning of the 50s), when “red scare” led to numerous unwarranted prosecutions, demonstrated that fear is a bad adviser because it leaves no room for freedom of speech. The freedom is, however, vital for state and social development. At the same time the US witnesses the Civil Rights Movement which resulted in prosecutions for poignant speeches. These prosecutions the US Supreme Court considered undesirable. Therefore, the Court started distancing itself from content censorship. This article also analyses limitations on freedom of speech that are currently present in the US law. In conclusion, an attempt is made to predict how the US courts would have approached prosecutions against Egor Zhukov and Vladislav Sinitsa.
Keywords: extremist speech, limitations on freedom of speech
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