Журнал ЗАКОН

Case Comment on the Judgment of the Chamber for Civil Cases of the SC RF No. 78-КГ20-18, 18 May 2020 The judgment considers to what extent and in what circumstances the possessor of a source of increased danger should be found guilty in the loss of possession due to third parties’ unlawful conduct. The comment argues that in this situation, as well as in a number of other decisions of the higher courts, the causal requirements are weakened so that to allow tort liability of persons who have merely occasioned harm. Furthermore, the paper describes some approaches to determine who is the possessor of a source of increased danger, since it is the possessor who is defined as the person that may be held responsible for the fault in loss of a source of increased danger caused by third parties’ unlawful conduct under paragraph 2 of article 1079 of the Russian Civil Code.

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Keywords: tort, source of increased danger, causation, novus actus interveniens

Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC No. 307-ЭС20-11335, 26 February 2021 The judgment of the Supreme Court answers two conceptual questions in the field of legal costs. First, whether legal costs in the form of remuneration for legal representation and case management in an arbitrazh court can be considered incurred by granting (by way of assignment) the person who provided the plaintiff these services the right to reimburse these legal costs from the opponent (yes, they can). Second, whether the assignee can enter into the proceedings for the recovery of court costs as the legal successor of the assignor, who has ceded to him the right to reimbursement of legal costs before the court considers this issue (yes, she can). In the article, the conclusions of the judicial chamber of the Supreme Court are placed in a broad procedural context. To prove the incurring of legal costs, the author proposes to consider it sufficient to establish that a) a person has an obligation to pay, and b) she has irreversibly and adequately expressed her will to perform this obligation, sufficient to fulfill it. The proof of this provision makes it possible to substantiate the broader interpretation of the concept of ‘incurred legal costs’ that the judges gave in this case, as well as the correctness and progressiveness of their conclusions regarding the possibility of transferring the right to reimbursement of legal costs at the time of the assignment.

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Keywords: legal expenses, assignment, succession

The most basic and simple way for shareholders and creditors to protect their interests in a reorganisation is to recover damages from the company and from the directors of the reorganised companies. This article deals with the specific issues that arise in recovering damages in a company reorganisation situation. The article includes a study of foreign doctrine on the issue under discussion and an analysis of Russian law.

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Keywords: company law, reorganisation of companies, protection of shareholders and creditors

The second part of the article attempts to analyse the relationship between landlord, tenant and subtenant in case of an early termination of a lease. What opportunities do the landlord, the tenant and the subtenant have in the liquidation stage of the lease relationship? What are the conditions for the subtenant to exercise his right to require the landlord to enter into a contract directly? In answering these questions, the possible solutions are evaluated in terms of the effectiveness of both the principle of relativity and the rules aimed at giving legal meaning to the contractual chain.

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Keywords: contract law, lease, sublease, contractual chain

There is a rule in the foreign exchange legislation obliging resident individuals to carry out foreign exchange transactions with non-residents on the territory of the Russian Federation using a bank account. However, neither legislation nor the practice of its enforcement have provided a clear answer whether this rule means only foreign currency or Russian rubles alike. The article argues that the relevant restrictions should apply only to foreign currency.

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Keywords: currency transaction, non-resident

Under Russian law, no less than 40 years can elapse between the creation of a real estate object and the granting of the legal regime of a cultural heritage object. Before this age, immovable things are not available to the specific preservation mechanisms provided for by cultural heritage protection legislation. On the one hand, this imperative rule threatens the existence of culturally significant but ‘young’ objects, and on the other hand, this same rule creates a guarantee for the rightholders that their objects will be free from ‘monument conservation’ public restrictions for at least 40 years. The article suggests a revision of the provisions of the Russian law based on the analysis of the criteria for including the objects of cultural heritage in the legislation and law enforcement practice in Italy, Britain and Germany.

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Keywords: object of cultural heritage, real estate, Unified State Register of Real Property

Today, despite the increased interest in investment arbitration, doctrinal and practical aspects of interim measures granted by tribunals in investor-state arbitration are much less known in the doctrine than the corresponding practice of international courts. Modern investment arbitration is decentralised, meaning that disputes can be resolved at the choice of the parties by various arbitration institutions in accordance with various rules of procedure developed initially for international commercial arbitration (UNCITRAL Arbitration Rules) or on the basis of borrowing key provisions from it (ICSID Arbitration Rules). At the same time, the tendency for the last two decades has been to indicate in international treaties the powers of the tribunals to order interim measures in investment disputes, to limit the types of such measures, as well as to decide whether they are binding. On the other hand, in cases where the tribunals are faced with the silence of an international treaty (for instance, the Washington Convention) regarding the criteria for the application of interim measures or their binding force, the tribunals have to resolve these issues on their own. It is noteworthy that ICSID tribunals which resolve the vast majority of emerging investment disputes use as a guidance the relevant jurisprudence of the International Court of Justice, rather than the decisions of arbitral tribunals. In particular, the ICJ decision in the LaGrand case served as a basis for ICSID tribunals to declare the binding force of interim measures granted by them. Such practice has not raised any objections from the respondent states in the disputes or from other states-parties to the Convention, which gave rise to the announcement of a tacit change of the relevant provisions of the Convention. This has led to the word ‘recommend’ as used in the Convention to be perceived as to ‘prescribe’ interim measures.

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Keywords: provisional measures, interim measures, investment arbitration, UNCITRAL, ICSID

The new rules of the Civil Code that ban assignment of rights acquired from contracts concluded at an auction (article 448 of the Civil Code of the Russian Federation) come into conflict with land legislation (article 22 of the Land Code of the Russian Federation). In this regard, the article examines various options that have been proposed in case law to resolve this conflict. The authors submit that it is irrational to extend this prohibition to lease contracts of land and forest plots owned by state or municipalities concluded at an auction. In this regard, various options for overcoming the existing conflict are proposed, the best of which is amendment of the Land Code.

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Keywords: land plots, forest plots, lease, conflict of laws