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Декабрь 2020





Evgeniy Fokin Old Problems of the Updated Competence Regulation of Arbitrazh Courts
Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС20-4513, 16 September 2020 In this judgment, the Supreme Court of the Russian Federation once again had to solve the problem of determining the court competent to consider the dispute. This time the question concerned the subjectmatter jurisdiction to solve the claim brought by a homeowners’ association to protect its business reputation. The Judicial Chamber of the SC RF not only identified and corrected the miscarriage of justice but also gave somehow broader comments on the essential features of the economic disputes in order to provide courts with more specific guidelines for determining jurisdiction disputes. One cannot ignore the fact that the case considered in the article is the first in which the SC RF has formulated a legal position taking into account the new provisions of procedural law on the competence of arbitrazh courts. Can it be argued that the 2019 reform has set new trends in judicial practice? The article argues that, generally speaking, the development of procedural legislation is similar to running on the spot: changes to the rules on subject-matter jurisdiction do not meet the demands that exist in judicial practice. The legal positions of the Supreme Court do not make any fundamental changes either: having corrected certain judicial errors of lower courts, the highest judicial instance has so far been unable, for objective reasons, to propose conceptually new approach.
Keywords: jurisdiction, competence of arbitrazh courts, procedural reform
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Anton Ivanov Stability of the Contract (Pacta Sunt Servanda) and Its Invalidity
The article analyses the relationship between the principle of the stability of contracts (pacta sunt servanda), which is generally accepted in the doctrine, and the civil law provisions of the current Civil Code. The denial of this principle in Soviet law, which was politically justified by the ideologists of the Communist Party, was reflected in the rules on the invalidity of transactions. Since the fundamental norms relating to invalidity remain in Russian law, the article concludes that the principle of the firmness of contracts does not exist in it. The author analyses these fundamental rules and also examines in detail the recent amendments to the Civil Code which partially compensate for the absence of the principle under discussion.
Keywords: pacta sunt servanda, invalidity of transactions, civil law principles, stability of contract
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Gadis Gadzhiev Golden Rules for the Application of Civil Law (Rules on Rules)
In the process of increasing the complexity of the civil law methodology, the method of proportionality was introduced along with the ‘all or nothing’ method. The article investigates the gnoseological foundations of this method and, using examples from Russian court practice, its operationality. It is proposed to use the method of distinguishing between abstract and nominalised notions of civil law as one of the golden rules in the law enforcement process. The methodology of weighing equal rights in civil law, which has penetrated into civil law doctrine, is based on the idea of balancing, which means that the best way to coordinate equal subjective civil rights is to interpret them in such a way that new ideas about one of them do not radically weaken but, on the contrary, strengthen the regulatory effect of another right, or weaken it minimally if there was a situational ‘exaltation’ of one of the equal rights during the balancing process. Using the method of nominating abstract civil law concepts, the author evaluates certain provisions of draft Federal Law No. 47518-6/5 ‘On Amendments to Part One of the Civil Code of the Russian Federation’.
Keywords: proportionality principle, subjective right, conflicting rules, interpretation of law
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Gennady Esakov Cartel Agreement and Formal Participation in Tenders
This article reviews the current approaches to wide-spread practice of formal participation in tenders. Prevailing view in administrative practice and case law treats this practice as unlawful and prohibited under general provisions on cartel agreements. The article argues that this view is erroneous, especially in cases of so-called family cartels, because it leads to strange economic effects. There are different types of formal participation in tenders. It is submitted that a formal participation shall be unlawful only in cases of deliberate influence on tender’s result. Cases of family cartels and similar to them should be lawful not only because treating them as unlawful has strange economic effects and leads to a conflict between tax and antimonopoly legislation but also, and mainly, because such cases cannot be punished either as administrative offences or crimes for formal reasons. The article proposes some approaches for courts to decide such cases.
Keywords: antitrust law, competition, cartel, tenders, offence
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Tatiana Dragunova Concurrent Liability in Contract and in Tort in Commercial Disputes
The article analyses how, and on the basis of which principles, the approach to concurrent liability in contract and in tort has formed in the classic European legal systems and in Russian civil law. Author analyses whether, and to what extent, the law permits the choice between liability in contract and in tort in France, England, Germany and Russia. The article covers both historical development of the problem and its current state in these jurisdictions.
Keywords: concurrent liability, civil liability, liability in contract, liability in tort, damages
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Ayk Kerselyan Some Controversial Issues in Property Law: A Critical Review of the Russian Civil Code Reform
A new draft amendments on property law — the final stage of the global reform of the Russian Civil Code — were presented to the legal community for evaluation last December. The draft based on the previous documents offers a number of new fundamental changes. The author critically analyzes three vital issues of this reform, namely the status of the land plot and construction on it, unauthorized construction and numerus clausus of property rights. Based on dogmatic, political and legal analysis, the author argues that the solutions proposed in the bill are incorrect and inappropriate.
Keywords: property law, land plot, unauthorised construction, numerus clausus
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Vladimir Efremov, Sergey Zavyalov Economic Measures to Counteract Legalisation Issues of Law Enforcement and Judicial Practice
The article is devoted to the issues of law enforcement and legal qualification of anti-legalisation measures applied by banks in relation to their customers. The arguments for and against contractual ways to counteract legalisation are presented. Based on the study of judicial practice on the legality of charging a high protective commission by banks, the authors conclude that the judicial system has not yet developed a unified approach to determining the legal nature of such a commission.
Keywords: protective commission, money legalisation, banks, financial law
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