ARCHIVE FOR 2023 RUSSIAN
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Март 2023
CONTENT
Mikhail Galperin Does an Arbitral Tribunal Need Objective Impartiality? Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF
No. 304-ЭС22-6536, 21 November 2022
The article traces the evolution of state justice approaches to the practice of so-called ‘corporate’ arbitration courts.
Despite the fact that in the commented ruling the Supreme Court leveled the concept of objective impartiality that
had existed since the time of the Supreme Arbitrazh Court of the Russian Federation and took a pro-arbitration
position regarding the competence of an arbitration institution affiliated with one of the parties to the dispute, in
general, the problem of counteracting ‘pocket’ arbitration remains relevant and requires a decision in the statute
law, and not in court practice. Otherwise, the balance between arbitration and state courts restored as a result of
the latest arbitration reform may again be disrupted. The author also draws attention to the undiscovered potential
of art. 46 of the Law on Arbitration, which already allows the courts to assess whether there is a conflict of interest
in the activities of an arbitration institution.
Keywords:
commercial arbitration, arbitration agreement, independence, impartiality, legal policy
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Pavel Praviaschii Leasing Agreement as a Method of Title Security (Part 1) The jurisprudence on the leasing contract is actively evolving. It is impossible to assess it and predict the direction
of its further development without perceiving the agreement as a lending instrument secured by a retention (or
transfer) of ownership. The author analyses various problems associated with the leasing contract. In particular,
based on the achievements of foreign laws and regulations examines the purpose of the lease and the related
problem of re-characterisation of the contract, compares it with related contractual structures. The article analyses
the structure of the relationship between the parties of the leasing transaction, its financial and security parts, as
well as their legal relations. The subject structure of the contract, including participation of a natural person in it,
is considered. The author suggests looking at the subject of the agreement in the light of the idea of leasing as a
form of title security: objects of civil rights, the transfer of which is unthinkable, could be the subject of the lease.
Special attention in the first part of the article is devoted to the rules of public disclosure of the conclusion of the
contract. The author refers to the experience of foreign countries and supranational codifications and provides a
detailed analysis of the two modes of disclosure adopted by the domestic legislator: voluntary and mandatory.
To conclude the first part of the article, a characterisation of the lessor’s title is given.
Keywords:
title security, finance lease, collateral loan, ownership, bankruptcy
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Victor Domshenko Class Action Certification Conditions The article analyses the conditions for certification of a class action under Russian law. The author identifies two
types of class action that have distinctive features. A possible change in the regulation in relation to a class action, the
subject of which is the common rights (interests) of members of the group, is proposed. Based on foreign experience,
the author considers what the homogeneity of the rights (interests) of group members means. The article also
considers the number of the group members as a criterion of admissibility of a class action: what is its significance
and the consequences of non-fulfilling this criterion.
Keywords:
class action, certification, common rights, homogeneous rights
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Anna Inozemtseva The Problem of the Autonomous Meaning of the Institution of Circumvention of the Law (Part 1) The article attempts to answer the question of whether the concept of ‘circumvention of the law’ has an independent
content. For this purpose, the institution of circumvention of the law is compared with other civil law institutions
which seem to be able to solve similar legal problems. Part I gives a brief survey of the role of circumvention in
Roman private law and in German civil law. It concludes that, from the point of view of both these legal systems,
there is some reason to view the circumvention phenomenon as a problem of expansive interpretation. On the
basis of the comparative analysis of the institutes of circumvention of law and (1) sham transactions and (2) the
transaction made with the purpose, contrary to legal order or morality, the author concludes that the phenomenon
of circumvention of law cannot be reduced to either of these institutes.
Keywords:
circumvention of law, fraus legis, interpretation of law, sham transactions
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Raul Sayfullin The Scope of Application of Provisions on Property Immunity: Controversial Issues of Theory and Practice In the law enforcement practice, there are increasing attempts to use property immunity as a defense not only to
claims based on obligations but also to other claims to a person’s property which are traditionally considered as
firm and not subject to a personal defense (including claims to protect property rights, to reverse void transactions,
to confiscate property, etc.). It is argued that this approach is rooted in the complex regulation of the phenomenon
in question relating to different branches of legislation. On the one hand, main provisions on the immunity are set
out in the procedural law (art. 446 of the Code of Civil Procedure of the Russian Federation); on the other hand,
these rules aim to develop the principle of property liability of a citizen (art. 24 of the Civil Code of the Russian
Federation), which is regulated by substantive law. The article consistently argues that property immunity belongs
to the domain of the law of obligations and is effective only in respect to the property that belongs to the debtor.
Keywords:
the law of obligations, property immunity, enforcement of a judicial act
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