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Март 2023




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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Eduard Bershitskiy Limitations on the Transfer of Creditor’s Rights in Obligations Based on Value Judgments: in Search of Criteria (Part 2)
The second part of the article analyses the limitations on the transfer of creditor’s rights which are based on concerns related to debtor’s and public interest, as well as those claims which, in the author’s opinion, should not be subject to any limitations (clauses 2.3–2.5 of chapter 2).
Keywords: the law of obligations, assignment of rights, singular succession, value judgment
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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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