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ARCHIVE FOR 2021    RUSSIAN

Февраль 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Alexey Navalny v. Russia Case and the ECHR Interim Measures
Comments by A. Kovler, M. Agaltsova, A. Ispolinov, L. Golovko, S. Pimenova
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Topic of the issue

M.Z. Shvarts Regulation of Procedural Forms of Protection of Group Interests: Imperative and Dispositive Aspects
The author proves that the group protection of subjective rights should not inevitably depend on a desire of members of the group to join a suit. If the disputed legal relation involves a plurality of entitled persons, and the decision on the claim will objectively determine the legal position of them all, such a claim should be considered according to the rules of the class action, even if the claim was declared as an individual one and none of the group members has expressed the will to join it. The law should provide for both dispositive (at the discretion of group members) and peremptory (based on the nature of the substantive legal relationship between members of the group) form of settlement of class action.
Keywords: class action, single legal relationship, court’s decision, legal status of group members
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V.V. Dolganichev Class Action: Comparative Analysis of the Regulatory Models of the Arbitrazh Procedure Code, Civil Procedure Code and Administrative Procedure Code
The article discusses issues related to different procedural regulations for the consideration of class action in civil, arbitrazh (commercial) and administrative proceedings. In the introduction, the author points out the fact that the rules on class action in the Arbitrazh Procedure Code, Civil Procedure Code and the Administrative Procedure Code appeared at different times in different legal realities, which led to different approaches to legal regulation. Comparison of the relevant models of a class action is carried out on the basis of criteria, which include: conditions for filing a class action, specifics of stages of class action, etc. The study revealed both significant and insignificant differences in the regulation of group proceedings. Based on the results of the study, it is concluded that it is necessary to further unify the norms on the consideration of class actions, while it is also important to consolidate the features of this institution, depending on the type of legal proceedings.
Keywords: class action, group proceedings, group certification, civil and arbitrazh procedure, administrative judicial procedure
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E.V. Kudryavtseva, I.O. Vtorushin Class Actions in Foreign Countries: History and Modernity
The use of protection mechanisms for multiple groups is gaining in popularity every year. However, class actions have a centuriesold history. The historical development of the Institute began in common law countries. The authors analyse the main stages of the development of class actions in England, the US, as well as in the continental legal system. The focus is on the position of the European Union vis-à-vis the Institute and the experience of introducing and operating class actions in Sweden, France and Germany. As a result of the study, the authors propose future directions for the development of the institute, such as the possibilities of using information technology in forming the group. It is also concluded that the class action model of a number of European countries has a limited scope of use, which hampers the efficient operation of the mechanism.
Keywords: group actions, representative actions, group proceeding, class actions, collective actions, adequate representation, opt-in, opt-out
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D.A. Tumanov Class Actions and Public Interest Litigation (Certain Issues)
The article demonstrates that class actions are merely a judicial form which enables immediate protection of public interests. Personal interests are also often protected within the relevant judicial procedure. Anyway, the existence of such a form providing for the protection of various interests is important for the society. The article highlights some problems arising in the world practice of considering class actions, gives examples of cases where public interest becomes the direct object of protection. The author offers his approach to solving some of the pressing problems, including the conclusion of class action settlements. The recommendations given in the article can be taken into account by the legislator and judicial practice.
Keywords: class actions, public interest, public interest advocacy, settlement agreements
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I.M. Shevchenko The Concepts of Derivative Actions and Class Actions in Bankruptcy Cases
The author concludes, that in bankruptcy cases the ideas of a derivative action and of a class action find their way. The first is typical for the bankruptcy initiation stage and the second — for separate disputes on bringing to subsidiary liability and challenging of transactions. In the context of the chosen problematics the question of creating a mechanism of collective funding of bankruptcy procedures is put up.
Keywords: class action, derivative action, challenging transactions in bankruptcy, subsidiary liability
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Discussion Board

A.A. Dzhagaryan Friendly Constitutional Court — for Friendly Law: On the Role of the Amicus Curiae
The present article discusses the value-based aspects of the “friend of the court” (amicus curiae) institution in connection with the problems of the dialogue development between constitutional justice and civil society in the new (post-reform) political and legal realities. The harsh expert criticism of this institution and the subsequent exclusion of the norms on initiative scientific opinions from the Rules of the Constitutional Court of the Russian Federation demonstrate the need to return to the issues of consistent interpretation of constitutional justice as a factor in democratisation of society.
Keywords: constitutional reform, constitutional justice, civil dialogue, amicus curiae
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O.P. Pleshanova Not to Measure by Common “Arshin”
“Arshin” and “Housing and communal services” — Aftermath of protest — Navalny’s case and ECHR — Russia and the EU — Parallel civil law — Vaccination and social cards — Russian Constitutional Court and amicus curiae — Salaries in scientific and educational areas — Accessibility of mass sports and CAS award — Internet censorship — Exhaustion
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Press Release

 

Theory and practice

A.Ye. Golodnikova, A.A. Yefremov, D.B. Tsygankov Under Sign of “Regulatory Guillotine”: How to Brake Vicious Circle of Deregulation and Reregulation?
This paper discusses one of the instruments of deregulation — “regulatory guillotine”. The “guillotine” implementation within Russia is observed in the context of international experience and limited institutional opportunities for reforms in the modern Russian Federation. The article shows that the initial ambivalent design of the reform put Russian leadership in the beginning of 2021 in a position where they had to complete it without achieving economically significant results, or to recognise the need to pursue the reform on the long way (until 2024–2025). It is proposed to consider steps to encourage regulators and stakeholders to promote an evidencebased lawmaking and introduce the systematic training for current and future public officials.
Keywords: deregulation, reregulation, regulatory guillotine, evidencebased regulatory policy, legislation, inspection, self-regulation
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A.N. Kozyrin From Electronic to Digital Customs: The Development of Customs Legal Regulation in the Russian Federation
The rapid development of IT is forcing the Russian customs service to accelerate the formation of an electronic customs system that will provide for international cooperation, exports, and attractive investment climate in Russia. The E-Customs have already got impressive results: more than a third of all customs declarations are registered, and more than a quarter of all low-risk declarations are released automatically; the average release time is about 5 minutes. The creation of E-Customs is a part of the digitalisation of the Russian economy. Customs operations are being automated, using modern IT, which makes significant savings in both time and money. The article discusses new technologies used in the work of electronic customs — risk management system, personal account of a foreign trade participant, a single personal account, a customs card, etc. It acknowledges the transition from electronic customs to digital ones, and identifies main difficulties of digitalisation of customs operations: the unpreparedness of certain Russian organisations to take advantage of the digitalisation, the different speed of digitalisation in the EEU states, etc.
Keywords: electronic customs, electronic declaration, electronic declaration center, personal account of person engaged in foreign economic activities, single account, digital customs
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A.I. Schukin Improving Russian Legal Proceedings in Condition of Economic Sanctions: Non-Execution of the Jurisdictional Agreement and Anti-Suit Injunction (Part 2)
The current version of the Russian Arbitrazh Procedure Code allows the addressee of sanctions to apply to the Russian arbitrazh (state commercial) court for an injunction to consider a dispute abroad (anti-suit injunction). In case of non-compliance with such injunction, liability is provided for: the Russian arbitrazh court has the right to award the interested party a sum of money to be collected from the person against whom the anti-suit injunction has been issued. Article 248.1 (4) of the Russian Arbitrazh Procedure Code gives the Russian state arbitrazh courts the exclusive jurisdiction to hear a case when the jurisdictional clauses is unenforceable due to the sanctions against one of its parties. The article provides a legal analysis and assessment of the adopted changes in the Arbitrazh Procedure Code in the Russian Federation.
Keywords: economic sanctions, restrictive measures, access to justice, international arbitration, non-execution of the jurisdictional agreement (clauses), anti-suit injunction
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E.A. Ostanina The Institute of Dispositive Incapacity in Regard to Protection of Civil Turnover Stability
The article raises the question of whether the rules recognising the transactions made by legally incapable persons as invalid, regardless of the good faith of the counterparty, are outdated and whether the increase of the responsibility of legal representatives and reduction of the risks for the turnover are required. It is concluded that it is necessary to protect the bona fide counterparty. Further differentiation of dispositive incapacity and its affect on the civil turnover are discussed: what would happen if the court recognises citizens as partially incapacitated and appoints them trustees for the largest transactions only?
Keywords: dispositive incapacity of citizens, restriction of a citizen’s legal capacity, invalidity of a transaction
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D.D. Dzhumagulov Silence: Its Legal Nature and Its Role in Digital Products Acquisition
Despite transactional silence is increasingly used in economic deals, especially for the acquisition of digital products, it is not given proper attention by scholars. The author concludes that silence is not a legal fact and it does not lead to legal consequences. The latter come due to the lapse of time in the absence of any other expression of will from the person who has the right to break the silence. It follows that silence is not an expression of will and cannot be invalidated on the grounds provided for transactions. The author applies these basic provisions to the purchase of digital products by silence. The article also proposes to protect the rights of consumers of digital products by sending them notices of impending debits from their accounts and creating a register of adhesion contracts.
Keywords: silence, transaction, form of transaction, digital product
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