ARCHIVE FOR 2022 RUSSIAN
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Август 2022
CONTENT
Aleksei Basharin The Absence of Planning Documentation as a Basis for Refusing to Issue a Land Development Plan Case Comment on the Сassation Judgment of the Chamber for Administrative Disputes of the RF SC
No. 43-КА19-31, 4 December 2019
The article analyses the Judgment of the Chamber for Administrative Disputes of the RF SC No. 43-КА19-31,
4 December 2019. The question is whether public authorities could refuse to issue a land development plan in
the absence of planning documentation. The author argues that the absence of such documentation, in which
red lines are established, should not entail a refusal to issue a land development plan. The author also draws
attention to the need to improve existing legislation in this area in order to reduce the degree of discretion of public
authorities.
Keywords:
land development plan, planning documentation, red lines, planning element, road network
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Yuliy Tay, Sergey Budylin What is Written in Pen Is Corrected by the Court. Contract Rectification Case Commentary on the Judgment of the Court of Appeal for England and Wales of 31 July 2019
in FSHC Group Holdings Ltd v. Glas Trust Corporation Ltd (Rev. 1) [2019] EWCA Civ. 1361
The article discusses an English Court of Appeal case that resolved one of the most puzzling issues in English
contract law. The issue relates to the rules of application of the doctrine of rectification. Rectification is the correction
of a written contract which contains an error, i. e. which does not correspond to the intentions of the parties when
entering into it. In practice, the convoluted rule formulated by the court made it somewhat more difficult to prove
the existence of such an error and also narrowed the possibilities of appealing against the decision of the court of
first instance in such cases.
Keywords:
English law, rectification, error, contract law, good faith
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Vadim Belov Classifications of Legal Facts: A High-Level Problem Reviewing the classifications of legal facts known in our literature (according to the volitional criterion, legal effect,
external form, etc.), the author comes to a conclusion that they are not sufficient to comprehensively characterize
the numerous facts with which modern law associates legal consequences, and then offers a number of new
classifications, based on criteria that are new for our science, and thereby to some extent filling and correcting the current taxonomical deficiency. The final classification of the facts which is based on spatial-temporal
coordinates individualising them is especially interesting and unusual. The article is of both scientific and practical
interest as it not only makes a contribution to the development of doctrine of juridical facts but draws attention to
their characteristics which should be taken into account by the lawyers participating in the contractual and claimlitigation
work.
Keywords:
legal facts, classification, types of legal facts
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Ivan Alyamkin The Problem of Accessio and Recovery of an Attached Part of a Thing in Russian Jurisprudence The article is devoted to the institute of increment and related controversial issues arising in the practice of Russian
courts, primarily the problem of qualification of the attached part of the thing and the possibility of its separate
reclamation. The article compares the regulation which exists in foreign jurisdictions with that developed in Russian
jurisprudence, noting a difference in approach but at the same time drawing a conclusion that there are no significant
practical consequences arising from this difference. The article suggests criteria of separability of the joined thing
and the alternative ways of protection of the former proprietor of such a thing when its recovery is impossible.
Keywords:
property law, thing, indivisible thing, composite thing, additions, vindicatio
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Vasiliy Laptev Settlement Agreement with the Only Condition on Mutual Waiver of the Claim: Legal Nature and Procedural Consequences The possibility of ending a litigation by a settlement agreement which is subsequently approved by the court is
an important right of participants in public relations on the path to the development of legal culture. This article
analyses the legal nature of the settlement agreement which contains the only condition — of the mutual waiver
of the claims brought by the parties. It provides an overview of the existing approaches of courts to the legal
qualification of these transactions and their consequences, as well as the possibility of appealing against them.
Possible ways of developing judicial practice on the issues under consideration are explored.
Keywords:
settlement agreement, arbitrazh procedure, waiver of a claim
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Alexey Akuzhinov Overcompensation and Contravention of Public Policy as Grounds for Refusal of Enforcement of Arbitral Awards and Foreign Judgments in Russian and European Law The article examines how Russian and a number of other European legal systems restrict the recognition and
enforcement of arbitral awards and foreign super compensation awards with reference to their conflict with public
policy. The author begins by setting the context of the study by conceptualising public policy as a secondary rule in
H. L. A. Hart’s conception. The author shows that the public policy clause does not establish an explicit prescription,
but merely opens up space for judicial law-making in the field of recognition and enforcement of foreign judgments
and arbitral awards. These rules, the author insists, are formulated by judges on the basis of their own ethical
considerations. The author then describes corrective justice as an ethical constraint on the application of supercompensatory
remedies which the courts use as the foundation of the rules they create on the basis of the public
policy clause. Using examples from the European and English legal systems, as well as international instruments,
the reality of the inclusion of remedial justice in the notion of public policy is demonstrated. In the third part of
the paper the author first reveals the content of public policy in Russian law and then describes the attitude
of the Russian legal order to overcompensation remedies and analyses how Russian courts apply the public
policy clause when deciding the issue of exequatur of overcompensation awards. The conclusion of the study
summarises the findings.
Keywords:
non-compensatory damages, exemplary damages, punitive damages, gain-based remedy, disgorgement of profits
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Tariel Sargsyan Loss of Objection by the Debtor: Review of the Courts’ Application of the New Wording of Article 386 of the Civil Code This work is the result of the generalisation of arbitrazh practice related to the application of the new wording of
art. 386 of the Civil Code of the Russian Federation. In the first part, the author notes the new rule is questionable.
The legislator’s approach is evaluated and criticised from the standpoint of doctrinal, political and legal and
comparative analysis. The author points out that it is inconsistent with the fundamental principle of the law of
assignment concerning the prohibition of worsening of the debtor’s situation upon the assignment. The second
part of the paper is devoted to the analysis of court practice. The analysis reveals a number of practical problems
such as: the operation of the novelty in time; courts’ understanding of the logical scope of the ‘objection’ category
for the purposes of application of the new wording of art. 386 of the Civil Code; etc.
Keywords:
law of obligations, assignment
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