Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС21-10216, 28 August 2021 The article analyses the Judgment of the Chamber for Economic Disputes of the SC RF in relation to the take or pay condition. The author compares the decision with the practice of German courts and the opinion of German doctrine and considers the relation of the take or pay condition to other institutions, including liquidated damages and subscription contracts. In doing so, the author offers his own understanding of the take or pay clause and the legal significance of its proper qualification.

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Keywords: take or pay, subscription contract, subscription fee

Commentary on AA v. Persons Unknown & Ors, Re Bitcoin [2019] EWHC 3556 (Comm.) (13 December 2019) This article discusses an English case involving computer extortion. However, it is not a criminal case, but a civil lawsuit in which a victim of extortionists is trying to recover bitcoins paid to cybercriminals as ransom. The case deals with a number of complex civil law and civil procedure issues specific to disputes over crypto-assets. Including the unusually important issue of the civil law qualification of cryptocurrency: the court recognises that cryptocurrency is ‘property’.

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Keywords: cryptocurrency, bitcoin, computer extortion, provisional measures, England

This article deals with the analysis of situation in which private persons of the same state submit a purely domestic dispute to a foreign arbitration with the seat of arbitration in the territory of a foreign state or the state of incorporation of the disputing parties. It is concluded that there are no insuperable obstacles to choose a foreign forum for resolving purely domestic disputes. In particular, the legislator’s exclusion of a foreign seat of arbitration from the criteria for determining the international nature of a dispute does not affect the opportunity to submit a domestic dispute to a foreign arbitration. The article provides for the first time a detailed analysis of the practice of foreign countries on this issue as well as overview of the actual jurisprudence of commercial courts of the Russian Federation after the entry into force of Federal Law ‘On Arbitration (Arbitration Proceedings) in the Russian Federation’.

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Keywords: purely domestic dispute, foreign arbitration, seat of arbitration, international commercial arbitration

The article discusses the reasons why the recovery of losses from a defective debtor has not yet become a popular instrument of civil law, despite the legislative changes, which in their idea have greatly facilitated the use of this instrument. It is shown that the reason for this is the judicial interpretations of these legislative amendments which dilute their idea. These interpretations are primarily driven by dogmatic thinking of judges who place an unfairly high burden of proof on the plaintiff (the creditor). This dogmatic thinking is supported and encouraged by the objectives towards which the courts focus in losses proceedings. It is these objectives that create barriers to a creditor (plaintiff) obtaining just compensation for his or her losses and they must be changed. Then, perhaps, the basic ideas behind the changes to the law on damages can be effectively implemented and Russian civil law will finally have a normal fair process for losses which will be demanded by the market.

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Keywords: liability in civil law, damages, unlawful action in civil law, burden of proof

Analysis of the legal consequences of the insolvency of the estate allows us to prove that the principle of relativity of obligations and judgments does not exclude the phenomenon of the opposability of these legal facts to the debtor’s creditors. If the material or procedural actions of the debtor harm his creditors, the legal effect of these facts can be challenged by the unified concept of actio Pauliana. Avoidance of judgments, as well as transactions, can in a process initiated by a separate claim, which can be explained by the theory of the relative effect of challenging. During the process of allowance of creditors’ claims confirmed by judgments creditors have the right to file an objection about the harm caused to them by the procedural actions of the participants of the process. Proving all the conditions of actio Pauliana leads to the fact that the claim will not be regarded as confirmed by a judgment.

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Keywords: bankruptcy, allowance of claims, actio Pauliana, opposability, judgment

In this paper, after a brief justification of the existence of the institute of acquisitive prescription (adverse possession in common law) and its economic role, the legal nature of the adverse possessor`s position is considered regarding the question whether he has a legal interest in the possessed property and, if he does, whether this interest can be qualified as a property right. Having established that the adverse possessor has an interest in relation to the property, the ownership of which he wants to acquire by acquisitive prescription, a mathematical formula is proposed, which allows to compare the interests of the owner and the adverse possessor and to determine the final compensation for each of them. When calculating the amount of compensation to the adverse possessor, the period during which he owned the property, as well as the fact of whether he made all the necessary expenses for the maintenance of the property are taken into account.

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Keywords: acquisitive prescription, adverse possession, right in rem, right of ownership, damages, legal interest