"Антивирусная" договорная стратегия: есть ли альтернатива ссылкам на непреодолимую силу, невозможность исполнения обязательств и существенное изменение обстоятельств?
This article analyzes the pros and cons of choosing a “negative” or “positive” contractual strategy in a crisis environment.
The authors draw attention to the difficulty of making an appropriate decision and the need to take into account many factors. In particular, on the basis of the provisions of legislation and judicial practice, it is concluded that in order to apply to the court with any requirement (terminate the contract, seek of penalties, establish the impossibility to perform obligation or a substantial change in circumstances), evidence of pre-trial settlement, manifestations of cooperation and good faith will be required. Otherwise, there is a high probability of either a refusal to consider the claim or a refusal to satisfy the claim on the merits.
In addition, a refusal to discuss concessions can be used to justify in court a counterparty’s dishonesty and abuse of the situation, a court decision may be not enforceable, and the debtor may go into bankruptcy. Force majeure is not a panacea and only in exceptional cases relieves from liability for non-fulfillment of an obligation, but not from fulfillment of an obligation itself. In any case, it is necessary to collect in advance the evidence base of the extraordinary and unavoidable impact on specific obligations of restrictive quarantine measures and evidence that the parties have taken all possible actions to reduce losses.
Therefore, according to the authors, in some casesa maintaining the old relationship on the changed terms is more profitable than looking for a new counterparty, since the conclusion of a new contract during the crisis and after it means taking on higher risks of its unfulfillability.
The monograph focuses on the present and future of the multilateral trading system (MTS) and the Global Trading System as a whole. During the post-war period, MTS achieved great success, the peak of which was the creation of the WTO in 1994. However, in the XXI century the WTO was in a state of deep crisis, the causes of which were not only accumulated over the years such problems as regionalism, protectionism, failure of the consensus mechanism in decision-making etc., but also new challenges: the US – China trade war, the Covid-19 pandemic, the global technological fracture. Despite all the negative consequences for the global economy and trade of these new challenges, the World remains firmly convinced that the WTO should maintain its central position in the regulation of World trade in the future. However, this requires serious measures to reform the WTO, to maintain the MTS, as well as urgent actions to avoid a scenario in which the system will be fragmented. Worst-case scenarios could lead to disruption of global trade and a world that splits into major trading blocs and where trade relations are largely based on relative strength rather than rules. In a time of global crisis, it is more important than ever to preserve the aspiration and ability for international cooperation, for multilateral negotiations, and for preserving trade rules. The history of the XXth century provides clear examples of how, in times of crisis, States have shown the determination and ability to strengthen institutions and rules. This allows us to hope to overcome the consequences of the Covid-19 pandemic, as well as to cope with other new challenges to the global economy, which gives us a chance to maintain the existing rules-based system.
This paper analyses the impact of governor’s tenure and his/her local ties on restriction of competition in the allocation of public procurement contracts. Basing on existing literature, we proposed that (1) tenure’s impact on competition in public procurement is non-linear and (2) it depends on governor’s pre-existing work experience in the region before he/she was elected/appointed. To test these hypotheses we employ contract-level data for the whole population of public contracts on road constructions in Russian regions during 2011-2014, and governor’s biographical information. Analysis showed that during first two terms of new governor in office the procurement competition increases and then starts to decrease. Such non-linear effect is especially prominent for governors-outsiders – the ones without pre-existing local ties. At the same time, this effect is not observable for the governors who came from the regional elite. Moreover, previous work experience in the region leads to higher procurement competition on average. We also showed that restriction of competition for governors-outsiders could not be explained by the increase of contract execution quality: execution delays increase linearly and the probability of execution terminating is not decreasing with the increase of governor’s tenure.
The article is devoted to the analysis of terms «condition» and «contingent transaction», some problems of counter-performance and applying of suspensive and resolutive conditions in the contract of guarantee. This article provides probable solutions and criterion of distinction between contingent transaction and force majeure circumstances.
On April 21, 2020, the Presidium of the Supreme Court of the Russian Federation issued an “Overview of selected issues of judicial practice, related to the application of legislation and measures to stop the spread of the coronavirus infection (COVID-19) on the territory of the Russian Federation No. 1” (the “Overview”).
This Overview sets out a number of important clarifications on the practical application of recent legislative developments as well as recent COVID-19 related measures to dispute resolution, contract performance, creditors’ rights, the imposition of criminal liability for spreading fake news on COVID-19 and on administrative liability for the violation of sanitary rules and protective measures. We set forth herein a number of clarifications affecting contract performance and dispute resolution.
It is sociologically significant that the pandemic showed a widespread crisis of the legal system, and at the same time, changes in the concepts of normal and emergency situations. The system of international law was not ready for a pandemic, although what was happening was global. Along with the crisis of international law, the universal criteria of legality disappeared. It is the legality of many measures in various countries that can be called into question, albeit some of them were nearer to the ideal of procedural purity than other.
The situation with coronavirus infection has dealt a big impact to a number of public institutions. It now seems clear that this pandemic - and the crisis it will entail - will affect the most deprived students the most. Pupils of small rural schools (more often remote ones), from disadvantaged families and with low results will suffer the most, since for them the period of long quarantine will be the most severe blow compared to those who have sufficient opportunities to switch to remote forms of work. In the current situation, the family is again beginning to play a dominant role in the education of the child; the school system is unlikely to be able to do anything to help those who simply do not have the opportunity to attend classes. Children with special needs are deprived of the help of specialists, whom parents cannot replace. Students from families with a low level of education, without the help of teachers, run the risk of significantly falling behind and not cope with the program. This applies even more to children from socially disadvantaged families who do not have conditions for distant learning activities at home. The aim of the work is to obtain data in a municipality case and compare it with data at the level of the Russian Federation.
The personal role of sub-national rulers is crucial for regional development in countries with weak institutions. This paper studies the impact of regional governors’ tenure in ofﬁce and their local ties on procurement performance in Russia. To identify the causal effect, we construct instruments for governor’s tenure by exploiting the regional vote share of ruling party in past parliament elections. We ﬁnd the evidence that governors who do not have pre-governing local ties in the region (outsiders) demonstrate predatory behaviour, compared to governors with local ties (insiders). Namely, governors-outsiders restrict the competition at awarding stage signiﬁcantly more than governors-insiders. Moreover, for governors-outsiders this restriction becomes stronger with tenure in ofﬁce, while governors-insiders do not demonstrate such negative tenure effect. We argue that this restriction of competition by governors-outsiders cannot be explained by the intention of better contracts execution: the delays in execution and the probability of contract termination either increase or keep stable with tenure for governors-outsiders and these outcomes decrease with tenure for governors-insiders.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/