Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 304-ЭС24-2799, 26 July 2024 The article, devoted to the fresh ruling of the Russian Supreme Court, examines the question whether a nationality of the international arbitrator affects the legal force of the award granted in a dispute between private parties. Using a seemingly ordinary commercial case, not even directly related to sanctions, the Supreme Court established a presumption of bias in relation to the attitude towards the Russian side of any arbitrator with a passport of an ‘unfriendly’ state, which caused a resonance in the professional community not only in Russia but worldwide. The author is trying to figure out what consequences such a position can lead to, can it become a precedent, is it justified from the view of national interests, the modern attitude towards Russian arbitration awards abroad, the legal nature of not only international commercial arbitration but justice itself?

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Keywords: international commercial arbitration, judicial independence and impartiality, public policy, conflict of interest

The article deals with the question of whether a person may possess not one, but two or more estates. It is noted that this situation is considered to be quite routine in German civil law, but in Russia, with the development of the institution of inheritance insolvency, courts have also often encountered the situation of isolation of two property masses belonging or conditionally belonging to one citizen. The same group of situations includes the community of agricultural property and, with reservations, the community of property of spouses.

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Keywords: property isolation, legal representative, bankruptcy of inheritance, peasant farming economy

The article discusses the emergence of ownership of things that are the subject of a commission agreement. It analyses the unified and dualistic regulation of the proprietary effect under a commission agreement in foreign legal orders and compares them with the model that has been enshrined in Russian law. The author covers national regulation in historical perspective and argues that a unified approach has taken hold in the Russian legal order. A number of practical issues are examined that are directly related to the proprietary effect: bankruptcy of a commission agent; restitution in case of invalidity of a sale contract concluded by the commission agent; execution of transactions with registered objects within the framework of a commission agreement.

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Keywords: law of obligations, property law, commission agreement, unjust enrichment

The article critically examines part 1.1 of article 16 of the Arbitrazh Procedure Code of the Russian Federation (APC) which gives the Intellectual Property Court (IPC) the exclusive power to send inquiries to scientists on questions of law. Judicial practice shows that ordinary courts refuse to apply part 1.1 of article 16 of the APC, referring to non-specialisation. The author argues that it is unreasonable to treat specialisation as a basis for granting the IPC the right to officially refer to legal experts when solving complex legal issues. The article then argues in favour of expanding part. 1.1 of article 16 of the APC and granting the authority in question to the ordinary arbitrazh courts, taking into account the domestic legal context. In the author’s opinion, this will lead to an increase in the quality of legal positions of Russian courts and improvement of the legal system.

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Keywords: arbitrazh procedure, specialised court, legal opinion, legal doctrine, request for the opinion of legal scholars

The topic of legal costs in bankruptcy cases in general and in separate disputes in particular is one of the least studied. Those general principles of reimbursement of legal costs that work in ordinary legal proceedings sometimes lead to inadequate results in bankruptcy disputes or do not provide any solution at all. This also applies to separate disputes in bankruptcy concerning the recovery of legal costs. A clear confirmation of this thesis is the issued Judgement of the Constitutional Court of the Russian Federation dated March 19, 2024 No. 11-П. In this study, we consider the issue related to the recovery of legal costs by parties in the event of termination of a bankruptcy case both in general and in individual separate disputes.

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Keywords: bankruptcy, termination of a bankruptcy case, legal costs

The article verifies the universality of the position of the Supreme Court of the Russian Federation on the inadmissibility of payments in case of unilateral cancellation of the agreement through the fault of the refusing party. As a model example for the analysis it uses the conditions of concession agreements, standard for Russian and world practice, on payment of compensation to the concessionaire in case of early termination of the agreement regardless of the fault of the latter in such termination are used. At the same time it is shown that the arguments formed in the course of the study of the model example are also valid for more widespread constructions of sale and construction contracts.

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Keywords: unilateral withdrawal from the agreement, concession agreements, termination of concession agreement, payment in case of unilateral withdrawal from the agreement

The article is devoted to the political, legal and economic analysis of various approaches to the allocation of the burden of proof of intent in the application of a clause limiting contractual liability (section 4 of article 401 of the Civil Code of the Russian Federation). The paper is divided into four parts. Essential to the future framework for limiting contractual liability is the determination of which party should bear the burden of proving intent when seeking to impose contractual liability (1). The article then examines the current approach proposed by the Supreme Court of the Russian Federation, which establishes a presumption of intent on the part of the offender when imposing contractual liability (2). Special attention is paid to the concept of intent in the context of limitation of contractual liability, which also affects the application of section 4 of article 401 of the Civil Code of the Russian Federation (3). Finally, the article discusses two approaches regarding the possible allocation of the burden of proof of intent, which may be chosen as an alternative to the solution proposed by the Supreme Court of the Russian Federation: (a) placing the burden of proof of intent on the plaintiff and (b) differentiating the presumption depending on the specific circumstances (4).

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Keywords: law of obligations, contractual liability, limitation of liability, burden of proof, intent

The author makes a transaction costs analysis approach to making and performing concessions and publicprivate partnership agreements for a period exceeding the term of approved budget. In such cases the executive branch encroaches legislative power by predetermining budget expenditures, which, however, may not receive legislative approval. This article reveals the political and legal confrontation between legislatures and executive branch regarding PPP budget expenditures. The author argues that more effective configuration of checks and balances leads to more sustainable equilibrium between social and commercial interests in budget expenditures for infrastructure development.

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Keywords: transaction costs, public-private partnership, concession agreement, separation of powers

The article is devoted to the political and comparative legal (Russia and England) analysis of the application of disgorgement of profits to cases of breach of fiduciary duties by a director of a legal entity. The article is divided into six parts. Here I compare the English and Russian rules on the recovery of profits received by persons who participated in the director’s breach of fiduciary duties [IV.Б]. In English law, recovery of proceeds under the more lenient rules for the defendant is possible for subjectively dishonest receipt of property (knowing receipt) and dishonest assistance (dishonest assistance) [IV.Б (i) (a)]. In Russian law, it is also possible to claim proceeds for dishonest benefit under the rules on indirect enrichment and for dishonest aiding and abetting under the rules on tort liability [IV.Б (i) (б)]. In English law, as a general rule, a disloyal director and a co-conspirator in breach of fiduciary duty are liable personally for the income received by each of them, but there are a few exceptions to this rule where they are jointly and severally liable [IV.Б (ii) (a)]. I argue that in Russian law the disloyal director and his co-director must also be personally liable for the income received and only as an exception can they be jointly and severally liable [IV.Б (ii) (б)]. In the penultimate part of the article, I show how the competition between revenue recovery and criminal confiscation for commercial bribery is resolved and insist on the priority of revenue recovery over confiscation [V]. I conclude by summarising the conclusions of all parts of the article [VI].

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Keywords: account of profits, constructive trust, disgorgement of profits, reclamation of profits, lost profits, fiduciary duties, intervention, accessory liability, indirect enrichment, joint and several liability, confiscation, commercial bribery