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ARCHIVE FOR 2020    RUSSIAN

Апрель 2020

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

KIRILL V. NAM ESTOPPEL IN THE CONTEXT OF GOOD FAITH PRINCIPLE
The author analyses the estoppel rule relying on the principle of good faith. The article concludes that contradictory, inconsistent behaviour is lawful in itself. Interpreting Russian estoppels in the context of the principle of good faith should enable application of estoppel only if required to do so by good faith, or if specific circumstances indicate that formally lawful conduct contradicts regulatory objectives and causes significant damage to the rights and interests of the other party. Restrictions on the principles of autonomy of will and the freedom of contract along with rules on voidable and voidable transactions etc. should be imposed in accordance with the principle of good faith, in exceptional justifying circumstances.
Keywords: principle of good faith, estoppel, inadmissibility of contradictory behavior
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DANIIL O. TUZOV THE INADMISSIBILITY OF “VENIRE CONTRA FACTUM PROPRIUM” IN CONNECTION WITH THE RULE OF IRRELEVANCE OF A DECLARATION OF INVALIDITY: LEGAL MAXIM OR PRINCIPLE?
The article addresses methodological problems, which exist in Russian civil doctrine, regarding the interpretation of the idea of inadmissible contradictory behavior and of Art. 166(5) and 432(3) of the Russian Civil Code on irrelevance of the statement of invalidity of a juristic act. It shows the continental history and the romanist roots of the said idea, inefficiency of correlation of the corresponding provisions of the Russian Civil Code with the estoppel in common law legal systems, and also substantiates the view that this idea, not being a principle of civil law, has always been and remains nothing more than a legal maxim (aphorism) contributing to the interpretation of the requirement of good faith in individual cases.
Keywords: consistent conduct, “venire contra factum proprium”, estoppel, invalidity of juristic acts
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DMITRY V. FEDOROV ESTOPPEL IN LEASE AND OTHER CONTINUING CONTRACTS
The article explores application of estoppel in situations where the parties have been fulfilling for a long time the continuing contract on conditions different from those stipulated in the contract. When a creditor does not exercise his right for a relatively long period of time, the debtor may believe that the right will not be exercised in the future or it does not exist at all. It is concluded that the debtor’s expectations may be justified if he does not know about the creditor’s right or if the creditor also gains some benefits.
Keywords: estoppel, continuing contracts, lease
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ANNA S. VLASOVA, MARINA V. KLEPONOSOVA, NATALIA M. UDALOVA ESTOPPEL IN CORPORATE DISPUTES
The evolving concept of good faith has led to the emergence of estoppel in the Russian legal system. Despite repeated references to the indicated prohibition of contradictory behavior in judicial practice, the question of the limits and specifics of its use in various social settings, including corporate relations, is quite critical. This article contains characteristic features of application of estoppel in resolving corporate disputes, as well as some explanations regarding its possible applicability.
Keywords: estoppel, good faith, approval of transaction, responsibility of head of legal entity
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ARINA S. VOROZHEVICH ESTOPPEL: GROUNDS AND APPLICATION IN PATENT LAW
The author considers the estoppel as an effective mechanism for resolving complex patent disputes and preventing unfair conduct by patent holders and their opponents. The article discusses the essence of prosecution history estoppel, patent equitable estoppel doctrine, collateral estoppel and IPR Estoppel.
Keywords: estoppel, copyright holder, invention, patent infringement, invalidation of patent
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NIKITA S. LASHKOV THE EMERGENCE OF REAL RIGHTS BYPASSING FORMALITIES: PROPRIETARY ESTOPPEL IN RUSSIA AND ENGLAND
This article explores differences and similarities between Russian and English case law on the proprietary estoppel. It first describes the origins of proprietary estoppel in English law and shows that they are quite distinct from Russian case law. The article argues that while no sui generis proprietary estoppel doctrine exists in Russian law, domestic courts have applied similar rules to prevent a party from resiling from an assurance where it would be unconscionable to do so, even if such assurance has been given in relation to immovable property.
Keywords: real rights, good faith, estoppel, English law
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ALEKSEI V. BASHARIN NONCONFORMING USES AS A MECHANISM FOR PROTECTING PREVIOUSLY ACQUIRED RIGHTS IN CHANGING URBAN ZONING
The research area of this article is the concept of nonconforming use, which is intended to protect the previous rights of landowners when changing urban zoning. The author identifies public and private interests affected by the application of this concept. It is also demonstrated that its existence stems from the constitutional legal principle of maintaining the trust of companies and individuals in government actions. The article also pays attention to the regulation of nonconforming uses in the United States, the jurisdiction where this concept was originally developed. Finally, conclusions are drawn and recommendations are provided with regard to changes in existing legislation.
Keywords: nonconforming use, urban zoning, amortisation, zoning estoppel
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YULIY V. TAY, SERGEY L. BUDYLIN LAW IN TIME OF PLAGUE
Foreword — Challenges for legal system — Grounds for restricting civil rights in Russia in emergency situations — First anti-crisis package, or Workers not working: economic and legal oxymoron — State aid to businesses, or Cherchez les petchenegi et polovtsy — From high-alert regime to emergency there is but one step… — Changes in court operations — SPILF Cancellation and Rule of Corona — Administrative fines and first cases — Fake on face — Kotov case and virtual rallies — SC RF’S Overview on application of anti-virus legislation — News from abroad — In lieu of conclusion
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Press Release

 

Theory and practice

SOFIA YU. FILIPPOVA, IRINA S. SHITKINA MODEL CHARTERS: LEGAL NATURE AND PURPOSE
The article deals with the legal nature and purpose of model charters. The authors conclude that model charters form part of by-laws optional regulation, standardised rules regulating the activity of a limited liability company in different ways, based on independent regulation options offered by the Federal Law on LLCs. The article analyses the decision-making procedure for transferring a limited liability company to the model charter both at its establishment and in the course of its activity.
Keywords: model charter, limited liability company, optional regulation, dispositive regulation
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PETR A. SKOBLIKOV REVISED RUSSIAN SUPREME COURT PLENARY RESOLUTION ON CORRUPTION CASE LAW: GAPS, CONTRADICTIONS AND WAYS TO REMOVE THEM
This article presents a critical analysis of a few important yet ambiguous provisions of the Supreme Court Plenary Resolution dated July 9, 2013, No. 24 “On Judicial Practice in Cases of Bribery and Other Corruption Crimes” which has got its new edition since December 24, 2019. The author comments on a number of newly introduced as well as unchanged provisions, and justifies certain proposals for correcting gaps, inaccuracies and conflicts of laws in this Resolution.
Keywords: corruption crimes, bribery, subject of bribery, subject of commercial bribery, consent to bribery mediation, fraud, public danger of act
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OLGA G. LOMIDZE, EDUARD YU. LOMIDZE LIMITATION ON OBLIGATION FROM UNJUST ENRICHMENT
The article deals with the application of § 2 Art. 200(2) of the Civil Code of the Russian Federation both in the wording in force until September 1, 2013, and in the current version. The said norm was amended by the Federal Law dated May 7, 2013, No. 100-FZ, and the authors, having discussed practical effect of this legislative decision, conclude that the special rules regarding the beginning of the limitation period do not contradict the general rule (“the limitation period begins from the day when the person has learned or should have learned about the violation of his right”) and are to be interpreted taking it into account. According to the position presented in the article, the criterion of the knowledge of a person whose right has been infringed that this violation has occurred must always be considered when interpreting the legal provisions on the time limit for protection of the infringed right. The article discovers the circumstances which are essential for the correct application of § 2 Art. 200(2) to obligations from unjust enrichment.
Keywords: unjust enrichment, limitation period, calculation of limitation period, violation of creditor’s rights
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ALEXANDER А. KOSTIN THE RULE OF ISSUE ESTOPPEL AND INTERNATIONAL COMMERCIAL ARBITRATION
This article discusses the rule under which the party must raise all claims before court (arbitration tribunal) as otherwise the party will be precluded from relitigating them in further proceedings (issue estoppel / concertation des moyens). More specifically, it discusses the possibility of application of this doctrine to arbitration in Russia. The Author also addresses the principle of legal certainty under which the award would violate public order if it disposes of claims that could have been raised in the initial arbitral proceedings (RF Supreme Court Ruling 27.09.2018 No. 310-ЭС17-5655). Based on the doctrine and case law analysis, it is concluded that the principle of legal certainty (which is almost identical to the English concept of issue estoppel) may not be treated as an element of Russian public order and thus may not serve as a basis for denial of recognition and enforcement of foreign arbitral awards in Russia.
Keywords: issue estoppel, principle of legal certainty, international commercial arbitration
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DANIIL B. VOLODARSKIY, IRINA N. KASHKAROVA PROCEDURAL ESTOPPEL IN COMMON LAW SYSTEM
This article describes the doctrine of estoppel which has developed within the framework of the common law system. Procedural aspects of the mentioned doctrine are at the spotlight. At the same time the article forms part of a more comprehensive research on the reception of the procedural estoppel doctrine in Russian civil and arbitrazh (commercial) procedural legislation. The authors present the methods of comparative analysis and thoroughly explore estoppel by record and abuse of process estoppel.
Keywords: estoppel, waiver, abuse of process, inconsistent positions in litigation
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