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Сентябрь 2022




Aleksei Basharin On the Consequences of the Difference in Views of Public Law Entities on Urban Development of the Territory
Case Comment on the Judgment of the Chamber for Administrative Disputes of the RF SC No. 66-АПА19-13, 26 February 2020 In the commented judgment, the court resolves a conflict between two public law entities arising from a different vision of the future land use of the territory. The article examines a number of issues that arise in a situation of contradiction between the documents of territorial planning of different levels. The author analyses such a fundamental category of urban planning legislation as ‘objects of regional significance’. In addition, the author considers the consequences of taking into account the previous behavior of public authorities in the process of implementation of urban planning activities.
Keywords: general plan, master plan, comprehensive plan, planning system, estoppel
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Elena Borisova Sequence of Exhaustion of Means of Appeal against Judicial Acts in Arbitration Proceedings
Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 309-ЭС21-17318, 20 January 2022 In the article the problem of judicial interpretation and application by the Supreme Court of the Russian Federation of the legislatively established rule on successive appeal of judicial acts in civil cases is investigated by the example of the decision of the Chamber for economic disputes and explanations of the Plenum of the Supreme Court of the Russian Federation on the application of the rules of the RF Arbitrazh Procedure Code when considering cases in cassation instance arbitrazh court. Attention is paid to theoretical and practical issues of counterclaims, joined complaint, limits of consideration of a case in the court of cassation instance and prohibition of turning to the worse. The author considers that the explanations of the Plenum of the Supreme Court of the Russian Federation concerning cassation proceedings reduce the level of guarantees of persons involved in a case, create uncertainty in realization of the right to cassation appeal of judicial acts, cassation appeal to the Supreme Court of the Russian Federation.
Keywords: exhaustion of legal remedies, means of appeal, sequence of appeal, limits of case consideration, revocation of complaint
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Artem Safyannikov Depersonalised Data: Is There a Future for Russia?
The article examines the concept and legal regime of depersonalised data, i. e., personal data which cannot be attributed to a particular person without additional information. In the first chapter, the author examines the current regulation of depersonalised data in Russian law, revealing its contradictions and legal gaps that hinder the effective flow of such data. The experience of impersonal data regulation in some of the most progressive foreign jurisdictions (EU, USA and others) is analysed in the second and fourth chapters. In the final chapter, the author compares Russian and foreign approaches, and examines existing draft laws on de-identified data, in order to suggest key provisions for future reform, proposing to distinguish between anonymised and pseudonymised data, to update de-identification standards and to clarify the possibility of data depersonalisation by companies.
Keywords: depersonalised data, pseudonymisation, anonymisation, personal data
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Damir Valeev The ‘Second and a Half’ of the Cassation, or An Extraordinary Way to Delay Consideration of the Case
There is an uncertainty in the procedural law as to the nature of an appeal against a Supreme Court judge’s ruling refusing to transfer the case to the Judicial Board of the RF Supreme Court, as well as the regulation of the procedure for considering such an appeal. In the article this uncertainty is analyzed taking into account the literal reading of the current procedural legislation, as well as in terms of the acts of the Constitutional Court of the Russian Federation and through the prism of doctrinal approaches. The author has developed his own approach to the definition of the nature of this phenomenon, based on the symbiosis of doctrinal foundations and legal explanatory acts of the Constitutional Court of the Russian Federation. The author suggests specific measures on the improvement of the procedural legislation (in particular, on the establishment of specific terms for the given extraordinary procedure) as well as separate additions to the other legal acts closely connected with the problem. These amendments should make the procedure of the appeal of such acts clearer and minimise the possibility of different understanding of the nature of the institution of the ‘second and a half’ cassation.
Keywords: arbitration process, civil process, administrative court procedure, Supreme Court, cassation
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Arseniy Bystrov The Aleatoric Nature of Transactions for Difference
The author demonstrates a dogmatic contradiction in the dominant approach to aleatoriness, which prevents the creation of a general theory of aleatoric transactions. This contradiction could be overcome by means of a concept based on the content of Roman sources which solves the problem of identifying the nature of transactions for difference by identifying key characteristics that indicate that a particular contract is attributed to them. The main characteristic of aleator contracts, according to the author, is the conditional commitment of the other party as equivalent to granting at least one of the parties, which solves the problem of breaking the causal link found in the theory of risk allocation. It is proposed that only contracts meeting this criterion can be classed as transactions for difference, a subset of betting, some variants of which are expressly protected by law, and this, among other things, leads to the distinction between transactions for difference and clearing derivatives as a group of contracts separated by economic grounds and without a unified legal essence.
Keywords: aleatoric transactions, betting, derivatives, gambling
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Nikita Rezanov Unilateral Transactions: General Principles of Legal Regulation (Part 1)
This is the first part of the article on unilateral transactions. In this part, the author examines how different jurisdictions regulate this type of transactions. It explores such questions as what is the place of unilateral transactions within the framework of legal concepts in different countries, what techniques are used to reach this goal, to what extent persons are free to execute such transactions and how they should be interpreted. The author offers his vision of future solutions for the Russian legal order. Approaches to regulation of national codifications, DCFR, PECL, PICC, CESL are studied. Although much of the research is based upon comparative law, the author does not advocate blind importation of legislative solutions that are common in foreign jurisdictions. Comparative material is used both to demonstrate possible solutions presented abroad and to further search for one’s own solutions taking into account national peculiarities.
Keywords: unilateral transactions, conditional transactions, secundary rights, invalidity of transactions
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Pavel Praviaschii Security Transfer of Title Not Provided for by Law: A Study of Arbitrazh Court Practice
Security transfer of title is often effected in ways not expressly provided for by law, including through two contracts of sale and purchase, sale and leaseback with buyback, etc. The article contains the results of the research of arbitrazh courts practice available in the ConsultantPlus legal data base as of October 2021. It also analyses the views expressed by the Chamber for Economic Disputes of the Russian Supreme Court regarding the following questions: whether courts recognise legal the security transfer of title if it is executed in a way not provided by law; whether courts consider valid transactions executed as a security transfer of title; in which objects of civil rights the participants of commercial turnover transfer the title with the aim of security; which persons act as creditors and debtors of a security transfer of title; which transactions are used to ensure said security; what rules of law are applied to the transactions in question by the arbitrazh courts; what are the main issues faced by the arbitrazh courts when resolving disputes regarding the security transfer of title? The results obtained lead to the conclusion that the arbitrazh practice on these issues should be changed, with the beginning of such a change having already been made by the Supreme Court of the Russian Federation. The author also proposes a further direction for the development of arbitrazh practice.
Keywords: title security, security transfer of title, security sale, sham transaction, secured loan
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