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Май 2020




Mikhail Galperin From Singapore to Helsinki via Kemerovo, or Which Arbitration should be Considered Foreign?
Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 304-ЭС19-20506, 12 March 2020 The commentary analyses the current approach of the Supreme Court in opposing attempts to circumvent the new legislation on arbitration by artificially creating the appearance of the foreign nature of arbitration. After analysing and evaluating the Court’s arguments, the author demonstrates that by using the concept of abuse of law to refuse enforcement or cancel an arbitral award the court could openly express suspicions that the arbitration institution did not act in good faith. This approach, however, requires clear identification of the abuser and the victim of the abuse. The analysis of the judgment of the Supreme Court is also used to demonstrate the original meaning of the legal provisions ensuring recognition and enforcement of foreign arbitral awards in Russia.
Keywords: arbitration proceedings, circumvention of law, abuse of law, recognition and enforcement of arbitral awards
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Ekaterina Papchenkova Banning a Representative from Making a Deal with Himself
Case Comment on the Judgment of the Chamber for Civil Cases of the SC RF No. 10-КГ19-5, 2-1287/2018, 19 November 2020 The commentary discusses the new approach of the Supreme Court to transactions that a representative executes ‘in relation to himself’ which are void under Russian Civil Code (paragraph 2, point 3 of article 182). How does this apply when the representative secures his own obligations by pledge or guarantee given by those whom he represents? Previously, the courts used a broad interpretation of this rule as covering all cases of conflict of interest. However, a different position has been taken in this case. The author questions this change in the vector of jurisprudence as increasing the risks associated with the issuing of a power of attorney.
Keywords: representation, representative’s transaction in respect of himself, consent to the transaction
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Artur Starikov Civil Law Means of Protection against Antitrust Law Violations (Part 1)
The purpose of the article is to assess the role of private individuals in the antitrust regulation of the United States and Russia through the available monetary means of protection. Recovery of losses is a universal and most appropriate way to protect violated rights of market participants and end consumers. Compensation of losses, including exemplary damages in the U.S., performs two functions simultaneously: compensation and deterrent. The potential threat of deprivation of all income derived from a violation of antitrust legislation, as well as the threat of paying exemplary damages are a deterrent measure for possible violators of the antitrust legislation. Recovery of losses, including in the amount of all income received by the offender from the committed act, should become an inevitable consequence of the committed tort in the field of antimonopoly regulation. When addressing the issue of recovery of losses, one should be guided not only by the formal requirements for recovery of damages, but also by the impact of the violation on the market, competition and end consumers.
Keywords: losses, antimonopoly regulation, antitrust, disgorgement of profits
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Dmitry Lorents Information Intermediaries (Providers) in Russia and Foreign Countries: Nature, Essence and Typology
In the norms of art. 1253.1 of the Civil Code of the Russian Federation there is a fine line between the nature (attributes), the essence (functions) of information intermediary in an information and telecommunication network and the conditions for exemption of the intermediary from liability for violation of intellectual rights in such a network. Based on the American (DMCA, 1998), European (E-Commerce Directive 2000/31/EC) and Chinese (RNDI, 2006) experience of legal regulation through the prism of providers’ functions in the network and conditions of their exemption from indirect liability, specific types and attributes of information intermediaries’ activity in Russia have been determined. Besides, for these purposes the court positions in different jurisdictions and scientific discussions in foreign and domestic legal doctrine are analysed. Information intermediaries of the first type are telecom operators that provide communication services under the relevant license. The second type of intermediary is formed by hosting providers, which provide third parties with a technological opportunity to place material and necessary information on the appropriate resource. The third type includes site owners who provide technological possibility of access to third parties’ materials. Based on global trends, operators of search engines that provide users with hyperlinks to the location of material posted by third parties may become information intermediaries of the fourth type in the course of the reform of the civil legislation of the Russian Federation. The latter type of activity includes, among other things, the ‘sale’ by search engine operators of non-visual keywords in order to promote contextual advertising of website owners. Intermediate activity in the information and telecommunication network should be qualified by the following attributes: 1) technical nature of the provider’s service; 2) neutrality and passive character of the service in relation to the content; 3) technological ability to prevent or suppress violations by third parties by removing illegal (‘pirated’) content and (or) termination of access to it or to the network (suspensive preventive activity). Direct financial benefit of the provider from the user’s violation of intellectual and other rights in the network is not a qualifying sign of special activity. Such benefit may be recognized as one of the conditions for an information intermediary to leave the ‘safe harbor’, i.e. a set of factors forming the provider’s security zone that ensures that the provider is not held liable (in good faith and taking necessary and sufficient response measures).
Keywords: information intermediary, hosting, domain name, site owner, search engine, copyright
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Aleksey Borisenko Options for Creditor Behavior in Voluntary Liquidation of the Debtor. Court Practice Analysis
The article describes the actions of the creditor, which he needs to make in the process of voluntary liquidation of a legal entity. The article analyses the Russian judicial practice in which courts by interpreting current legislation determine legal consequences of specific actions (inaction) of creditors and liquidation commission during voluntary liquidation of a legal entity. The author notes the lack of uniformity in judicial practice on most issues that are not directly regulated in the law, arising during the participation of the creditor in the process of voluntary liquidation of a legal entity. The main conclusion reached by the author is that the position of the creditor in the process of voluntary liquidation of a legal entity should be active, the passivity of the creditor may lead to adverse consequences, including the complete loss of the legal claim against the debtor.
Keywords: liquidation, liquidation commission
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Daniil Boreysho, Ilya Papillin Review of the Practice of Application of the Article 434.1 of the Civil Code of the Russian Federation
The article analyzes court practice on the issues of application of article 434.1 of the Russian Civil Code on responsibility for unfair negotiations — the institute which is new to domestic codification. The study of court practice allowed the authors to identify a number of the most important issues: whether the good faith of the person referring to the counterparty’s bad faith in negotiations is important; what are the features of bringing to pre-contractual liability when entering into a contract at an auction; whether the qualification of withdrawal from negotiations as bad faith depends on the stage at which it is carried out, and others. The authors consider the most important judicial acts on these issues and comment on the decisions proposed by the courts.
Keywords: pre-contractual liability, contract, conclusion of a contract at an auction
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