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ARCHIVE FOR 2020    RUSSIAN

Май 2020

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

 

IN MEMORIAM

 

The Event. Comments of the Experts

The Pandemic and Legal Business
Comments by S. Pepelyaev, Yu. Tay, A. Goltsblat, D. Arkhipov, A. Kukin, A. Zakharko, I. Ostapets, A. Kostyra, N. Gulyaeva, Zh. Tomashevskaya
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Topic of the issue

S.Yu. Filippova The Coronavirus Has Gone. How Do We Get the Law Back Now?
The article considers how lawmaking amid the spread of coronavirus infection has affected the legal consciousness, legal culture of Russian citizens, and, generally, the private law as a regulator of social interaction. The author proposes to revive the Russian legal system, considers and critically evaluates the possibility to recover from the state losses caused by the adoption of illegal acts limiting business activities.
Keywords: private law, legal consciousness, principles of law, coronavirus, causal connection, recovery of losses
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A.F. Pyankova Legal Grounds for the Introduction of Measures to Prevent the Spread of a New Coronavirus Infection in the Russian Regions
The legal grounds for restricting the rights of citizens in connection with the spread of a new coronavirus infection can be the following: Federal Constitutional Law of May 30, 2001 No. 3-FKZ “On the State of Emergency”, Federal Laws of December 21, 1994 No. 68-FZ “On the Protection of the Population and Territories from Natural and Man-Made Emergencies” and of March 30, 1999 No. 52-FZ “On the Sanitary and Epidemiological Well-Being of the Population”. The author investigates whether these normative acts provide a legal basis for the measures taken by the regions in March — April 2020. It is concluded that the legislation in force at the time when the pandemic had started did not regulate the current situation; the legislator should have amended the Federal Law “On the Sanitary and Epidemiological Well-Being of the Population”, rather than Federal Law “On the Protection of the Population and Territories from Natural and Manmade Emergencies”. The latter is designed for natural and man-made emergencies, and the standards contained therein do not correspond to the essence of the measures taken in connection with the pandemic
Keywords: coronavirus, pandemic, state of emergency, emergency, quarantine, self-isolation, restriction of citizens’ rights
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M.V. Agaltsova, T.V. Imanova Self-Isolation: The Legality and Constitutionality of Antivirus Measures
The authors examine measures restricting the freedom of movement, which took effect in Russian regions in connection with the spread of the new coronavirus infection COVID-19. Having analysed all the norms on “self-isolation” of a healthy population, introduced by regional authorities, the authors ask a question: are they legal? The Federal Law “On Protection of the Population and Territories from Natural and Technogenic Emergencies”, being the basis for them, did not include the possibility of restricting constitutional rights and freedoms of citizens during high alert regime before April 1, 2020. The amendments allowed the regional authorities to introduce any mandatory rules of conduct for citizens. However, these amendments are unconstitutional, since the legislator can delegate the legislative powers to the executive bodies only when the subject of delegation does not belong to the exclusive prerogative of the legislature in accordance with the Constitution. The authors examine similar measures introduced in the UK and France. In the UK, the restriction of freedom of movement was met with disapproval from lawyers, since it was introduced not by the act of Parliament, but delegated legislation in England, Wales, Scotland and Northern Ireland. Delegated legislation, in turn, was based on the Public Health Act, which does not provide for restricting the freedom of movement of healthy people. The reaction of the French legislator was exemplary because it was more coherent: the Emergency Law to combat the COVID-19 pandemic clearly set the parameters of restrictions by establishing a list of possible measures, proportionality requirements and the timing of cancellation.
Keywords: freedom of movement, self-isolation, high alert regime, state of emergency, permit regime, state of health emergency, delegated legislation, pandemic, coronavirus
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V.S. Petrishchev Russian Private Law Response to Coronavirus: First Results
The article is devoted to the reaction of Russian law to the crisis caused by the coronavirus pandemic. The article analyses the application of traditional legal instruments (force majeure, change and dissolution of contract in connection with material change in circumstances), as well as new support measures adopted in 2020. The author’s conclusion is that Russian law is not yet ready for effective and uniform resolution of disputes caused by the pandemic.
Keywords: coronavirus, force majeure, material change in circumstances, rent
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A.N. Latyev Rent Reduction Due to the Inavailability of Real Estate in the COVID-19 Epidemic
The author considers bases and the mechanism of rent reduction in case immovable property cannot be used or conditions of such use are deteriorated. The conformity of such reduction to legal constructions of real and obligatory rent, and the limits of dispositivity of corresponding norms are investigated. The author shows that special legislation, which is adopted in view of the COVID-19 epidemic and aimed at a reduction in rents, is acting as a further development both of general civil rules on rent and court practice that places the risk of accidental deterioration of the conditions of use of the property on the landlord. On the basis of the findings, ways to determine the amount of rent reduction amid anti-epidemic measures are proposed.
Keywords: rent, rent reduction, contract change
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T.R. Suleymanov, V.V. Yurchik, M.A. Morozevich Construction during COVID-19 Outbreak: Is Сhapter 37 of the Russian Civil Code Ready for This Crush-Test?
Based on particular cases, the authors analyse some practical legal issues arising from construction contracts due to COVID-19 outbreak. This crisis demonstrates the ambiguity of some clauses of Chapter 37 of the Russian Civil Code related to risk allocation in extraordinary situations. In relation to the contracts, which were concluded starting from December 2019, possibility to apply the provisions of Article 401 of the Civil Code (force majeure circumstances) or Article 451 of the Civil Code (significant change in circumstances) is doubtful. Furthermore, termination of large-scale contracts in an advanced stage of performance could even lead to more severe consequences than their temporary suspension or slowing down might bring. Consequently, Articles 416 and 417 of the Civil Code (termination due to impossibility to fulfill contract and on the grounds of an act issued by a public authority) are of no help in such circumstances. Authors come to conclusion that possible solutions can hardly be found within four corners of the Civil Code and therefore should be inevitably contractual.
Keywords: construction agreement, construction contract, customer, client, contractor, construction, EPC, suspension of works, work execution periods, epidemic, pandemic, COVID-19
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K.L. Branovitsky, I.G. Rents, V.V. Yarkov Judicial Rule-Making in the Context of Coronavirus Pandemic: Absurdity or Necessity?
The article is devoted to the implementation of the judicial protection’s right in the context of a coronavirus pandemic. The authors examined certain aspects of the organisation of judicial activity on the example of the Russian Federation and the judicial systems of individual states. Largely, the authors positively evaluating the measures taken in the Russian Federation. Meanwhile, the authors emphasise the potential of an analogy of law that allowed the courts to find new forms and methods of procedural communication with participants in the court. At the same time, the authors believe it is extremely important to find a balance between the clearly identified tendency to “de-ceremony” justice and the need to respect fundamental procedural rights and preserve the content of justice through the development of a “digital judicial presence” as one of the options for exercising the right to be heard in court.
Keywords: coronavirus, pandemic, civil procedure, information technology, analogy of law
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G.V. Sevastyanov Pandemic Arbitration and Justice: Towards the Theory of “Procedural Force Majeure”
The limitations of the pandemic have had a significant impact not only on substantive relations, but also on the dispute resolution. Procedural risks arising from the postponement or suspension of civil litigation by state courts and arbitral tribunals during the pandemic can be avoided if various offline and online procedural communication mechanisms are used. The author proposes to use the concept of “procedural force majeure” to possibly adapt state justice and arbitration to circumstances of force majeure. The article also shows that the private procedural specifics of arbitration allows for a more flexible and efficient solution of this problem, as compared to public justice, following the principle that “the rules of arbitration are part of the arbitration agreement”.
Keywords: “procedural force majeure”, force majeure circumstances, arbitration, arbitration proceedings, international commercial arbitration, state proceedings, state justice, procedural risks, dispositive procedural form, access to justice
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O.P. Pleshanova Damned Prosos
Before and after — 300 000 diseased in Moscow — Fight against “coronafakes” — When COVID-19 has really come? — Event 201 — Revelations of famous doctor Roshal — Healthcare optimisation — Deficit of individual protection means and medical equipment — The harmful effects of the Russian Academy of Sciences’ reform — Pharmacology and basic research — Regime of masks — Urban policy — The problem of trust in power — The Russian Guard in Moscow and the increase of regionalisation — Out of self-isolation, rating of the Russian President and amendments to the Constitution — Digital city passes and digital fines — Distance education — Russian and EU drafts on digitalisation — Rule of Corona development and quasi-cash circulation — SPILF-2021
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Press Release

 

Theory and practice

A.V. Gabov Force Majeure, Coronavirus and Government Decisions to Prevent Its Spread
The rapid and ubiquitous spread of coronavirus infection both in Russia and around the world has led to the adoption by the government of various countries of restrictive measures. As a result, a significant number of participants in economic relations were forced to suspend their activities; inter alia, the proper performance of obligations was jeopardised. This situation forced to pay close attention to institutions, designed for extraordinary situations. One of them is the institution of force majeure. The paper shows the main elements of this institution in the Russian legal system; the consequences of both the spread of the coronavirus epidemic and the introduction of restrictive measures by the state are estimated. Suggestions were made about the need to change the institution of force majeure and its fine-tuning for such cases as epidemics like epidemics of the coronavirus.
Keywords: liability, exclusion of liability, release from liability, force majeure, an epidemic, an emergency, quarantine, the obligation, а contract, restriction of civil rights
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A.F. Abdrashitova, D.M. Schekin Revision of International Tax Agreements: Russia’s Response to the Coronacrisis
The article assesses the expediency of Vladimir Putin’s proposal to establish higher tax rates for all payments of dividends and interest to persons registered in so-called suspicious jurisdictions. The authors conclude that these novelties, if they come into force, will affect foreign persons, including investors, rather than help to separate the wheat from the chaff. Instead, it would be worthwhile to improve the legal instruments to counter aggressive international tax planning. For example, the existing instruments could be enhanced by the obligation to obtain a tax rescript, which would ensure the disclosure to the tax authority of all features of the transaction and the status of the income recipient.
Keywords: double taxation avoidance agreements, international tax planning, taxation of income of non-residents, tax rescript, investment protection
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E.A. Borisova Jurisdiction of Civil Cases: Transferring vs Considering
The article investigates the questions about the ways of correction of a miscarriage of justice in the determination of the court empowered to adjudicate civil dispute (jurisdiction, competence) in appeal, cassation, supervisory procedures, suggests the variants of legislative regulation.
Keywords: subject-matter jurisdiction, competence, court powers, appeal, cassation, supervisory review, Supreme Court
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Foreign experience

D.B. Volodarskiy, I.N. Kashkarova Procedural Estoppel in Common Law System
This research describes the doctrine of estoppel which was developed within the framework of the common law legal system. Previous article was dedicated to the methods of comparative analysis and thoroughly explored estoppel by record and abuse of process estoppel. In the second part, the authors continue to explore procedural estoppels in common law and dwell on the following specific types: judicial estoppel, equittable estoppel and waiver. In conclusion the authors briefly address the possibility of the Russian procedural law to adopt the considered doctrines. This article is a part of the comprehensive research on the reception of the procedural estoppel doctrine in the Russian civil and arbitrazh (commercial) procedural legislation.
Keywords: estoppel, abuse of process, inconsistent positions in litigation, judicial estoppel, equitable estoppel, waiver
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