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ARCHIVE FOR 2021    RUSSIAN

Октябрь 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Machine-Readable Law: The Legal Challenge to the Modernity
Comments by R. Yankovskiy, A. Vashkevich, A. Ivanov, V. Naumov, A. Neznamov, D. Schekin
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Topic of the issue

A.Yu. Bushev Digital Securities and Protection of Rights of Their Holders
The paper examines the main stages in the development of securities on the way to giving them a digital form. The author concludes that the regime of blockchain and associated algorithm of distributed registry introduced by the legislator strengthen the traditional properties of securities, such as (i) public verification of information about the right and its ownership, and (ii) the abstract nature of certifiable obligations. The article substantiates the approach that rights of digital securities holders can be protected by substantive law by analogy with the rights of uncertified securities holders.
Keywords: securities, digital securities, vindication, distributed registry, digital right, digital financial assets
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A.A. Makovskaya Certain Problems of Pledge of Securities Arising from Its Nature
The article considers such problems arising in the process of pledging different securities as pledge accounting, pledgee’s transferability and distribution of rights on securities between pledger and pledgee, and, finally, the specifics of satisfying pledgee’s claims at the expense of pledged securities.
Keywords: pledge, securities, transfer of rights from securities, foreclosure
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A.S. Selivanovskiy OTC Derivatives and the Integrity of Market Participants: An Overview of Accumulated Problems
In most OTC derivatives contracts, there is a power imbalance between the parties: the financial institution (the strongest party) has the expertise and experience in futures transactions and submits the contract documentation, while its client (the weakest party) often has no relevant experience and is confronted with such financial instruments for the first time. In some cases, banks impose hedging transactions on their clients. This raises the question of the bona fides of the parties in derivative relationships. The article discusses disputes from Russian arbitrazh (commercial) practice, where the main issue was the good faith of the financial institution while preparing, concluding and executing the contract.
Keywords: derivatives, derivative financial instruments, OTC derivatives, hedging, professional securities market participants, contractual disproportion, procedural disproportion, information disproportion, weak party agreement, misselling
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E.A. Vereshchagina Structured Bond. To Pay, or not to Pay, That Is the Question
With the amendment in April 2018 of the Securities Market Law, it became possible to issue a new type of financial instrument — a structured bond. The return of the nominal value of structural bonds depends on the occurrence or non-occurrence of conditions determined by the issuer. This is the first legislative consolidation of a security, in respect of which the risk of loss of investment is directly established. Previously, credit notes were issued under foreign law with the involvement of foreign companies. Federal Act No. 75 allowed Russian issuers to issue structured products within the Russian legal framework. The article discusses the issue of legal qualification of structured bonds, analyzes the features of the issue and reveals the main gaps in the regulation of a new type of financial instrument.
Keywords: structured bonds, structured notes, derivatives, securities market, special purpose vehicle, issue of structured bonds, protection of investors in structured bonds
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O.N. Kadukova Protection of Shareholder Rights at the European Court of Human Rights
The article presents approaches of the European Court of Human Rights concerning protection of shareholder’s rights to a share as a special type of property, protection of rights from a share and admissibility of shareholder’s complaints in this connection. Admissibility implies that a shareholder may apply to the ECHR if his right is violated and may not if the violation involved a company. In reality, the distinction between a shareholder’s and a company’s rights is sometimes barely discernible and in some cases, e.g. when a company cannot defend itself, is impermissible. In this connection, the ECHR enhances the general rule with exceptions and additional conditions, which are systematised and presented in this article. The recommendations are given for possible correction of the RF Constitutional Court practice on similar issues.
Keywords: shareholders’ rights, protection of shareholders’ rights, ECHR case law
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Т.A. Tereshchenko The Chickens Are Counted in the Autumn
Peculiarities of national counting — Push the button — Good intentions but the wrong way — All sorts of spy passions — Opinions filed vs opinions published - The appeal of the European mantle — Tax green initiatives — Garage honey and fly in the ointment — No to “marijuana law”
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Press Release

 

Theory and practice

А.V. Gabov, T.A. Merebashvili The Rights of Shareholders and Corporate Governance in Joint-Stock Companies during the Pandemic
The pandemic and the subsequent restrictions on the usual form of live/personal communication pushed all countries to the rapid and large-scale introduction of remote interaction technologies (this process is now called digitalisation). This implementation takes place both in the system of public administration, and in terms of the interaction of state bodies and officials with citizens and organisations, and in the management of private organisations, including the interaction of participants (beneficiaries) of such organisations with each other with the management bodies of organisations. The almost total transition to remote interaction creates both new opportunities and significant risks. With regard to the use of remote forms of interaction in the corporate governance system of joint-stock companies, one of the opportunities is to increase the activism of shareholders: participation in corporate meetings now requires practically no expenses, which means that the widest possible number of investors have access to participation. At the same time, we are seeing an increase in the interest of private investors in the capital markets (both in Russia and abroad), which has many economic and technological reasons. However, there are some risks that should be taken into account.
Keywords: corporate governance, share, shareholders’ rights, general meeting of shareholders, civil society, remote interaction, activism of shareholders
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A.V. Basharin, S.V. Strembelev The Value of the Territory Planning Documentation for Granting Building Permits and Legalisation of Unauthorised Constructions
The article analyses the interrelation between the preparation of planning documentation and granting of permits for construction, as well as the questions of unlawfulness of constructions erected in violation of planning documentation. The authors investigate the problem of issuing permits for construction of non-linear objects, when the objects do not comply with the technical and economic indicators established in the territory planning documentation. According to the authors, refusals to issue construction permits in such cases are often unlawful. Public authorities desire to use planning documentation when issuing a construction permit due to the improper incorporation of the institution of urban planning zoning into the Russian legislation on urban planning activities. The authors analyse the problems of qualifying a building as unauthorised if it violates the threshold parameters provided by the documentation for the planning of the territory.
Keywords: permit for building, documentation on territory planning, rules of land tenure and development, technical and economic indices, complex development of territories, town-planning plan of land, invalidity of documentation on territory planning
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A.A. Putintseva Life Insurance as a Will-Substitute: Key Problems of Russian and Foreign Law
The article analyses the hereditary aspect of a life insurance contract in Russian and foreign law, the main question is devoted to the possibility and limits of applying hereditary norms to the right to receive insurance benefits. The life insurance contract is considered a will substitute, that allows, among other things, to circumvent the default statutory provisions of inheritance law. The author draws attention to the fact that in foreign legal systems, a life insurance contract can be used as an alternative to testamentary orders. At the same time, the existing provisions of European inheritance legislation, for example, § 2325 of the German Civil Code, protect heirs who are entitled to a preferential share, even if a different person is specified in the life insurance contract as a beneficiary. Despite the fact that such a right arises by virtue of a life insurance contract and has a binding legal nature, the author concludes that the construction of Article 934 of the Civil Code of the Russian Federation does not allow to completely abandoning the application of the statutory regime in inheritance law.
Keywords: inheritance law, will-substitute, donatio mortis causa, life insurance
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K.P. Savryga Risk Allocation in Long Term Contracts (Using the Case of Currency Clause)
Structuring long-term contracts, parties inevitably face the distribution of the risks of various adverse events (be it an increase in the cost of goods or currency fluctuations). Afterwards, after the risk is realised and the negative consequences fall on one party or another, the parties often try to challenge the risk allocation stipulated by the contract. In this paper, we will try to provide an optimal model for the distribution of risks in long-term contracts, which could be used by the courts when it is necessary to redistribute these risks.
Keywords: economic analysis, contract risk, risk allocation, change of contract due to the change of circumstances, termination of contract due to the change of circumstances
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A.V. Borisenko Risks of Using Competitors’ Trademarks in Contextual Advertising on Search Engines
The article discusses the legal problems that arise when an advertiser uses words (phrases) that are identical or confusingly similar to competitors’ trademarks in contextual advertising in search engines. The author comes to the conclusion that law enforcement practice tends to recognise such use as an act of unfair competition. This, nevertheless, does not deprive the trademark owner of the opportunity to use other legal remedies.
Keywords: contextual advertising, trademarks, unfair competition
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S.D. Pimenova Interim Measures in the Jurisprudence of the European Court of Human Rights (Critical Analysis)
The article examines normative basis and jurisprudence of the European Court of Human Rights on interim measures taken by the Court on the requests of private litigants. The evolution of the ECHR’s approach to interim measures and their binding force is shown. It is noted that despite the exceptional nature of interim measures taken by the Court, these measures have turned into a procedural weapon actively used by it. At the same time, the interim measures jurisprudence of the ECHR raises questions and differs unfavorably from the practice of other international courts. First of all, this concerns the transparency of the consideration of petitions for interim measures received by the Court and the publication of decisions on such petitions. The author concludes that the most famous and authoritative regional court for human rights is at the same time the most closed and unpredictable international court in the world in terms of interim measures.
Keywords: provisional measures, interim measures, European Court of Human Rights, European Convention on Human Rights
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Foreign experience

A.V. Yakhimovich Estoppel and Litigants’ Right to Change Their Case in the Russian Civil Procedure
The current position of the Russian Supreme Court as to the existence of a broad principle of estoppel raises a few doubts. This allows unprincipled court’s discretion for there is no regulation on the estoppel necessary elements. The fallacious understanding of the true kind of the estoppel employed by the Russian Supreme Arbitrazh (Commercial) Court in 2011 has also played its part. Thus, the aim of the article is to reveal those discrepancies in the current use of the estoppel instrument which may result in denying the litigant’s right to justice.
Keywords: estoppel, res judicata, abuse of process, procedural justice, judicial discretion
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