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Июнь 2023




Radislav Repin, Alina Radova On Price, Hidden Penalties and the Legal Meaning of a Clause Referring to an Act of Authority
Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС22-18408, 26 December 2022 In this commentary, the authors, referring to the doctrine of the basis of obligation (causa of obligation), consider the price terms of a transaction which disguise penalties. The authors believe that private autonomy has its limits, which, among other things, is set by causa. The parties are prevented from calling black (liquidated damages) white (the price). An agreement cannot conflict with the essence of the relationship, the substance of the legal regulation, even if this does not violate the public interest or the rights of individual third parties. The authors also consider the effect which the termination of an act of authority has on a transaction which refers to this act as condition precedent or condition subsequent.
Keywords: the law of obligations, price, penalty, causa, obligation, lease
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Anna Arkhipova Moral Hazard in Insurance: Classification and How to Control It
Insurance aims to reduce risks. However, sometimes an insured who is aware of insurance starts to behave more recklessly. This, to the contrary, increases the level of risk. It is therefore necessary to identify and classify cases of moral hazard in insurance. It is also required to create a system of measures aimed at controlling and reducing moral hazard. There are means to control moral hazard in insurance. They may be classified as ex ante and ex post and include deductibles, insured’s duty to disclose information, precautionary measures etc. Although Russian insurance law does not use the term moral hazard, it has a number of mechanisms that may in fact be used to control moral hazard in insurance. There is no need to regulate moral hazard in Russian law on a statutory level. However, a systematic approach is required to use available means of controlling and reducing moral hazard.
Keywords: insurance, insurable risk, moral hazard, deductible
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Vladimir Kostsov Substance and Procedure in Arbitrability of Disputes and Powers of Arbitrators
The article criticises the tendency of Russian scholarship and practice to analyse the powers of arbitral tribunals based on general concepts such as public interest, justice or the erga omnes nature of the underlying substantive right. The author points out that this tendency is based on an improper comingling of the substantive and procedural issues and is ultimately caused by a distrust towards arbitration. From the procedural perspective, arbitration should be regarded as a full-fledged alternative to state court justice, which implies that the powers of arbitrators (including the power to award relief) should be presumed to be the same as those of state courts (the doctrine of synchronized competence). Exceptions should be based on statutory interpretation on the specific rules dealing with arbitrability of disputes rather than general principles. Rules on non-arbitrable disputes should further be construed in light of their procedural rather than substantive goals, meaning that disputes are to be deemed non-arbitrable because of inherent limitations of arbitral procedure rather than the risk of an improper substantive outcome. As a result, it should be presumed that any dispute dealing with civil remedies is arbitrable even if the underlying substantive right has an erga omnes nature and even if public law rules have to be applied to adjudicate the same. This is, inter alia, because arbitral awards normally have no procedural effect on third parties and because their compliance with the public interest can be verified at the enforcement stage under the public policy exception.
Keywords: arbitration, arbitrability, arbitration procedure, public policy
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Anatoliy Borisov Problems of Restitution after Declaring a Share Purchase Agreement Invalid
This article analyses problematic cases of restitution after an agreement to purchase a share in a limited liability company is declared void. It examines the impact on the restitution of such circumstances as change of value of the purchased company’s assets, encumbrance of the acquired share, change in its stake or nominal value. Based on the research of doctrine and case law, the author analyses various approaches to the availability of the restitution in kind and calculations under these circumstances.
Keywords: corporate law, restitution, vindication, limited liability company, sale and purchase agreement, unjust enrichment
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Anastasiia Karpova The Principle of Free Evidence Assessment and Standards of Proof: The Approaches in German Civil Procedural Law and Judicial Practice and Russian Legal Reality
This article examines how legal doctrine and practice approach evidence assessment and standards of proof in German civil procedure and tries to find the optimal way for the development of the standards of proof that were born in Russian practice. The author considers the historical premises of contemporary view of evidence assessment and standards of proof in German civil procedure and current state of theory and judicial practice. Most German scientists are very conventional about their views of evidence assessment, based on complete conviction of a judge of the truth of a statement of fact. They deny the model of the standard of proof preponderance of evidence, because of risk of abuse of judicial discretion. The discussion about the acceptable model of standards of proof lasts well over 10 years, but these standards have not been officially accepted. The principle of free evidence assessment in pre-revolutionary Russian civil procedure was based historically on the continental law tradition. Therefore, we should revise the approach of the Judicial Chamber for Economic Disputes of the Supreme Court of the Russian Federation to standards of proof and rather think about improvement of specific areas of civil procedure in Russian law.
Keywords: civil procedure, standards of proof, evidence assessment, burden of proof, evidence
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Ilia Shevchenko On the Subordination of Creditors’ Claims Arising after the Initiation of Bankruptcy Proceedings
In order to address the subordination of current payments, the article analyses the concepts of subordination and current payments. The author argues that a better way to understand the rationale of the subordination is to look at it through the idea of friendly relationships. In relation to current payments, the article draws attention to the restricted approach to this category, which is expressed in the fact that the legislator applies only temporal criteria, ignoring the importance of funding of the needs of the bankruptcy estate. At the end of the article, the conclusion is drawn that debts on current payments are not subordinated only if a majority of creditors and a controlling (affiliated) entity have reached an agreement on non-subordination or a surrogate of such agreement.
Keywords: bankruptcy, subordination of creditors’ claims, current payments, bankruptcy rehabilitation procedures
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Ekaterina Yulova Problems of Establishing Criteria of a City-Forming Organization in Bankruptcy Cases
Under current sanctions pressure, it is necessary to ensure the timely implementation of the norms of bankruptcy legislation aimed at protecting city-forming organizations. However, the study of judicial practice shows that such norms often do not apply to organizations that are actually city-forming, or are applied with a significant delay when the possibility of using a number of protective mechanisms has already been missed. The article analyzes the legal problems that lead to such a situation: the problems of determining the number of the working population of a locality, the admissibility of evidence of the debtor’s compliance with the criteria of a city-forming organization, determining the date on which such signs are to be established, the absence of the subject of the obligation to determine the presence of signs of a city-forming organization, as well as the absence of the right of the municipality to provide evidence of their presence. The author notes the inconsistency of the legal positions of arbitration courts on the possibility of depriving the debtor of the status of a city-forming organization in the event of a reduction in the number of employees of the debtor, and a number of others. In order to solve these problems, the author suggests to adjust and unify the terminology of bankruptcy legislation and official statistical accounting. In order to protect public interests, it is proposed to include the debtor’s criteria of a city-forming organization in the circumstances that need to be established by court in the first bankruptcy procedure. It is concluded that a decrease in the number of employees of the debtor during the bankruptcy procedure cannot serve as a basis for depriving him of the status of a city-forming organization.
Keywords: bankruptcy, city-forming organization
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