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Принципы УНИДРУА, касающиеся применения положений о компенсации за прекращение (Principes d’UNIDROIT concernant l’applicabilité des clauses de résiliation-compensation), и их значение для правового регулирования рынка деривативов
The Principles on the Operation of Close-Out Netting Provisions were developed by the International Institute for the Unification of Private Law (UNIDROIT) and published in 2013 (“UNIDROIT Principles on Close-Out Netting”). This act lays the foundation for improving national legal regulation with respect to the early termination of international derivatives transactions in bankruptcy and the respective compensation arrangements (known as “netting”).
The relevance of the Principles relates to the fact that about 80 countries recently enacted legislation on netting. The foreign academic community has expressed broad support for the Principles, noting the high level of the document, its balanced content and the progressive approach of the developers who proposed an act of a recommendatory nature instead of the format of an international treaty. It is important to note that Russian experts also took part in the preparation of the Principles, and the working group relied, among other sources, on the financial market legislation in the Russian Federation. Despite the above, the UNIDROIT Principles on Close-Out Netting are poorly represented in the domestic legal literature, they remain little known in the Russian legal doctrine. The purpose of the article is the authors’ endeavour to partially fill this gap.
Using the specific-historical method, the authors investigate the reasons for the adoption of the above act, largely related to the financial crisis of the second half of the 2000s. The paper then describes the nature of the UNIDROIT document under consideration, showing that it is a soft law act designed to regulate private legal relations, which reflects the tendencies of harmonisation and unification. The formal-dogmatic method in conjunction with the comparative legal strategy made it possible to analyse the content of the Principles, as well as to assess their correlation with other – private-law and public-law – regulators in the derivatives market. It was revealed that the UNIDROIT Principles on Close-Out Netting are to be applied exclusively in commercial relations, and mainly between financial organisations. Particular legal means and techniques to achieve the relevant result include uniform terminology, functional approach, general terms of netting, exclusive grounds for application of moratorium, mandatory judicial protection, etc.
The authors proceed with the analysis of the role of the Principles in the legal regulation of cross-border counterparty relations in the derivatives market. The paper concludes, on the one hand, on the fruitfulness of this document, which has become a source of norms of national legislation for economically significant jurisdictions. On the other hand, it is noted that the UNIDROIT Principles on Close-Out Netting are of decisive importance as a legal benchmark for developing states that have just embarked on the path of creating stable financial markets and are planning measures, including law-making, to attract foreign investors.