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ARCHIVE FOR 2021    RUSSIAN

Март 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Antitrust Ruling of the Supreme Court
Comments by Yu. Tay, A. Rego, M. Kobanenko, A. Vasin, A. Shastitko, V. Pruzhanskiy, A. Varlamova, N. Voznesenskiy, E. Sokolovskaya, A. Rokhlin, O. Moskvitin, N. Mosunova, A. Ulyanov
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Topic of the issue

V.A. Belov Change of Persons in Obligations: The Legacy of the Russian Empire (Part 1)
The article highlights the state and content of legal regulation of assignment of creditors and debtors in pre-revolutionary Russia and considers the main changes which the draft Civil Code of the Russian Empire proposed to introduce to this regulation. The author draws a number of parallels between the pre-revolutionary situation and the recent reform of the general provisions of the law of obligations contained in the current Russian Civil Code. They make it possible to compare the range of issues subject to legal regulation before and now and to assess the different solutions, former and modern. The author discovers the necessity of evaluating not only the content (quality) and motivation of these solutions, but also their technique. In spite of the extreme poverty of the Civil Laws valid at that time and the extreme brevity and ambiguity of the norms of the Empire Civil Code which was to replace them, the prerevolutionary legal regulation of persons changing their obligations was much more meaningful, professional, rich and vivid than the regulation of the modern Civil Code, even the post-reform one. The author believes that this is because our pre-revolutionary law was the result of equal participation in its creation not only of legislators, but also of practitioners and scholars. This distinguishes it sharply and favorably from the law of today, which is characterised by a maniacal tendency to stipulate in the law everything down to the smallest detail. Without the assistance of scientists it regularly fails to put two and two together, i.e. to solve even simple questions, and misses even the most general, fundamental provisions.
Keywords: assignment of claim, transfer of debt, replacement of creditor, replacement of debtor, change of persons in the obligation, civil laws of the Russian Empire, draft Civil Code of the Russian Empire, Civil Code of the Russian Federation
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A.N. Latyev Perfection of Singular Succession in Obligations: Raising the Problem
The article focuses on (a) the moment when the singular succession in obligations is completed, the legal position of the acquirer of rights is certain, and the previous holder of rights is no more connected with the obligation, and (b) the circumstance that shall be considered as an outward sign of possession of a claim which justifies its acquisition even despite certain defects of acquisition. The author suggests referring to this circumstance as to the perfection of a singular succession. A system of rules determining the moment of perfection of cession is proposed for discussion.
Keywords: right of claim, obligation, assignment, transfer of debt, pledge of rights, singular succession, notice to debtor, registration
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K.M. Mikhailov Contractual Prohibition on Assignment: Сomparison of the Russian Approach and Foreign Experience
Claim rights are subject to active market trading and have long since acquired the qualities of a negotiable object. This raises question as to whether it is worth setting limits on the negotiability of claim rights by allowing for the absolute effect of a contractual prohibition on assignment. Questions about the contractual prohibition on assignment arise from the need to choose one of two basic principles — freedom of contract or freedom of disposition of civil rights objects. In some jurisdictions, claim rights are freely transferable from one person to another, in others the circulation of claim rights may be substantially restricted by the absolute effect of the contractual prohibition on assignment. In the Russian jurisdiction, the question of the consequences of establishing a contractual prohibition on assignment is not conclusively settled.
Keywords: assignment, contractual prohibition on assignment
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E.A. Ostanina Legal Status of a Cedent or Cessionary: How It Affects the Scope of the Right and the Possibility of Cession
The rule that the right passes unchanged does not always work. The article examines the cases when the features of the status of a new creditor give the new creditor additional ways of protection. The problems of the transfer of rights from the consumer to the entrepreneur are also considered, e.g. whether some protection possibilities may be lost during the transfer.
Keywords: assignment, consumer, wages, subordination of claims
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Judicial practice. Comments

D.V. Boreysho Protection of the Debtor’s Interests in Case the Assignment Is Invalid: Judicial Practice
The article analyses the judicial practice on the application of the doctrine of apparent legality, which is set to protect the interests of the debtor in the event of the invalidity of the assignment. The law states that the debtor, who has fulfilled the obligation to the assignee, cannot be forced to re-perform the assignor if the assignment is subsequently declared invalid. Despite the fact that this rule was implied by the Supreme Arbitrazh Court back in 2007, there are many questions of its application. Are there any restrictions on the application of the doctrine of visibility of law? In what cases can the debtor use it? Can the debtor use other methods to protect himself: demand to declare invalidity of an assignment or try to return what was paid to the assignee? The author examines the most important judicial acts on these issues and comments on the decisions proposed by the courts.
Keywords: apparent legality, assignment, invalidity of a transaction
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A.P. Evseev, V.B. Rumak Tatiana’s Day
Russian Constitutional Court ruling on L.V. Tukhta’s complaint — Navalny trial — Rehabilitation of Nazism and prosecution for it — Public Outreach Act — Twitter slowdown — Digital control and digital tax — New tax and antitrust clarifications — UK Supreme Court ruling on Uber
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Press Release

 

Theory and practice

V.V. Starzhenetskiy, V.A. Butyrina, K.S. Kuritsyna Development of the Russian Anti-Sanction Regulation
Nowadays economic sanctions represent one of the most popular mechanism of non- forcible coercion and exercising pressure on states. This phenomenon generates systemic challenges for national sovereignty, economic security, macroeconomic stability and sustainability. The logical response to the sanctions’ constraints is the creation of a protective legal mechanism allowing to minimise negative consequences of sanctions and effectively resist them. The development of the Russian legislation and ongoing experts’ discussions illustrate that such mechanism is now at its active stage of formation. In the present article we make an attempt to systematise different “anti-sanction” measures, consider their nature and analyse possible ways of improvement and further development. To counter threats caused by sanctions, the Russian authorities are pursuing several interrelated goals, including: (1) demotivating and increasing the costs of economic sanctions for sanctioning states, (2) minimisation of the existing negative effect for the Russian economy and business entities, (3) reducing dependence on sanctioning states in critical sectors of the Russian economy, as well as increasing overall resilience to sanctions’ restrictions. Each of these tasks implies implementation of a set of measures that are considered in this article. At the same time, despite the existing positive results, the Russian anti-sanction mechanism has its own drawbacks of systemic nature, namely, the lack of a comprehensive assessment of the effectiveness of the measures taken, significant gaps in the regulation and administration of the “counter-sanctions”, as well as insufficient use of the potential of international law to resist economic sanctions.
Keywords: economic sanctions, anti-sanction legal mechanism, countersanctions, coutermeasures
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B.R. Karabelnikov Lex Arbitri — English and Russian Courts Follow Different Paths
Article considers new cases of Russian State courts concerning determination of law applicable to international arbitration proceedings, and also provides for a brief description of the UK Supreme Court’s case Enka Insaat Ve Sanayi AS (Respondent) v. OOO Insurance Company Chubb (Appellant) ([2020] UKSC 38) also being connected with Russia. Judgments of Russian state courts inconsistently apply legislation on international commercial arbitration, no matter which law is construed by them as lex arbitri.
Keywords: Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb, lex arbitri, violation of legislation on international commercial arbitration in Russia
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N.L. Malkina, A.A. Shastitko Product Market Definition Issues on the Resale Markets
The article focuses on the issue of the product boundaries on the resale markets where buyers are distributors or retailers. One of the key features of such wholesale markets is that the demand on such markets occurs as a result of the demand for the same product on a different market down the distribution chain where buyers are ultimate consumers or manufacturers of the next production level (in the case of production goods). Also, such ultimate consumers and manufacturers usually bear all costs when prices increase on a resale level. It implies, first, that switching of these buyers plays a critical role in switching of resellers. Second, approaches to the product market definition, which are based on a change in price, work differently on the resale markets. However, as far as ultimate consumers and manufacturers are not a party to the resale markets, antitrust authorities may face the question on whether the opinion of such buyers on product substitutability should be taken into account when determining the product boundaries of the resale markets and in what way. Based on the Russian Competition Law, law enforcement practice and economic theory, the article illustrates why the opinion of ultimate consumers or manufacturers (in the case of production goods) on product substitutability should be decisive in the definition of the resale product market boundaries. The first part of the article describes approaches to the product market definition in the Russian Competition Law. The second part is devoted to the peculiarities of the common approaches to the market definition, in particular consumer surveys, in the case of wholesale markets. The third part analyses switching of resellers among goods of the same type, which are not substitutable for ultimate consumers or manufacturers. The final part touches upon the issue of the geographic market boundaries in the case of the resale markets.
Keywords: product market, hypothetical monopolist test, resale market, substitutability, consumer survey
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A.A. Vishnevskiy Financial Product Passport in the Context of the Information Imbalance in Bank — Client Relations
The article offers a short analysis of a recent initiative of the Bank of Russia, namely “passports” of the financial products as a part of the wider campaign on improvement of the informing of the investors and consumers on the banking products. Based on the empirical analysis of the situation in the Russian banking system and taking into consideration the international approaches the author puts forward a number of critical considerations.
Keywords: passport of the financial product, informational assymetry, bank — client relations, consumer protection
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Foreign experience

D.O. Tuzov Common Defects in a Transaction and Conflicts of Interest in Representation under Italian Civil Law (Compared to the Russian Regulation)
This article, being a part of a more extensive study of the representation in Italian civil law, discusses both common defects inherent to representation (lack of legitimation in the transaction, defects of active legal capacity, defects of will and other significant subjective conditions) that have specific characteristics of representation relations, and typical defects inherent to a particular relationship (various types of conflict of interest of the representative and the represented). The main attention is paid to the relevant norms of the Civil Code — this principal source of Italian civil law is given for the first time in the author’s translation, — as well as the most important provisions for their understanding in the Italian civil law doctrine and the positions of jurisprudence in comparison with Russian law. The work does not purport to be exhaustive and is intended to provide only the most general picture of the regulation in Italian law of the relations in question. It can be useful for further comparative study of the institution of representation, a deeper understanding of its problems in domestic law, and improvement of court practice and legislation in this area.
Keywords: Italian Civil Code, Codice civile italiano, representation, rappresentanza, power of attorney, procura, legal incapacity, incapacità legale, natural incapacity, incapacità naturale, defects of will, vizi di volontà, significant subjective states
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