This paper provides an overview of the legal regulation and practice of Russian state arbitrazh (commercial) courts in cases of challenging arbitral awards. The paper specifies legal grounds and procedure for challenging arbitral awards in Russia, the typical arguments of the applicants in contesting such awards. A tendency towards the setting aside by the state courts of the arbitral awards has been identified, the relevant statistical data are provided. Separately, the application by the courts of a public policy clause is analysed. Also, the paper examines the specific examples of the effect of setting aside the arbitral awards in Russia on the possibility of their subsequent enforcement internationally. The author argues for a more consistent recognition by the Russian courts of the importance and value of arbitration as a widely used method for resolving disputes, including those arising in international trade.
This article is a reply on the article published in the previous issue of this journal and authored by professor Alexander Sergeev. He criticized the criminal legislation and case law in their approaches to some civil law institutions. In reply to his views, the author explains criminal law approaches and tries to justify them following the long chain of cases and theory of criminal law. Three questions are analysed in depth in this article. Firstly, criminal liability of members of board of directors under Russian criminal law and more broadly criminal liability of corporate top managers. Secondly, differentiation between public and private officials especially in light of current trend to enlarge a definition of public official. Lastly, the problem of recovery of a damage in criminal procedures.
The article examines the issue of sale of the state-owned (municipal) share in common real estate ownership and its acquisition by the other participants of common ownership without bidding but through the pre-emptive right in compliance with the legislation on privatisation. Therefore, the author analyses the statutory regulation of privatisation of a share in common ownership, and examines the ratio of the norms in civil and privatisation laws. The pre-emptive right is evaluated and its category is recognised by privatisation legislation. The author determines the essence of trading and analyses the requirement to follow the rules of antitrust and privatisation laws. The conflicting decisions and arguments from two courts are reviewed focusing on the necessity of ensuring both public and private interests of those involved. A summary is provided for the points of view of public officials and other courts including the Supreme Court. Finally, the author concludes that it is necessity to use the pre-emptive right of other participants in common real estate ownership in the case of acquisition of a state-owned (municipal) share in it.
This article presents the results of a comprehensive social and legal study on citizens’ involvement in court activities as jurors. It identifies and analyses the reasons why citizens avoid appearing in court if they receive summons as candidates for jurors. As a result, proposals were formulated as to how involve citizens in the administration of justice. The optimal forms of interaction between courts’ offices juror candidates are proposed.
The order of revision of the judicial act based on the regulatory legal act subsequently recognized as court invalid has to be based on the constitutional provisions limiting a possibility of giving to judicial acts of retroactive effect. Recognition by court invalid the regulatory legal act from the moment of its acceptance can be considered as a new circumstance only in exceptional cases, the relations connected with character regulated by the challenged act. At the same time at recognition by court invalid the regulatory legal act from the moment of the introduction in validity of the judgment about it this circumstance can be considered as the basis for revision of the judicial act based on such act only concerning the person who has achieved recognition of the regulatory legal act invalid. Full proofs of these conclusions are provided in article.
This article discusses the rule under which the party must raise all claims before court (arbitration tribunal) as otherwise the party will be precluded from relitigating them in further proceedings (issue estoppel / concertation des moyens). More specifically, it discusses the possibility of application of this doctrine to arbitration in Russia. The Author also addresses the principle of legal certainty under which the award would violate public order if it disposes of claims that could have been raised in the initial arbitral proceedings (RF Supreme Court Ruling 27.09.2018 No. 310-ЭС17-5655). Based on the doctrine and case law analysis, it is concluded that the principle of legal certainty (which is almost identical to the English concept of issue estoppel) may not be treated as an element of Russian public order and thus may not serve as a basis for denial of recognition and enforcement of foreign arbitral awards in Russia.
Using the US experience as a benchmark, the author showы how the compulsory licensing is extensively utilized as a tool for stimulating innovation, as well as an essential balancing element for the efficient intellectual property regime. The paper outlines the questions to be discussed at the session “Promoting competition and innovation through access to non-voluntary licensing: the pharmaceutical industry experience” jointly organized by the Federal Antimonopoly Service of Russia and the HSE — Skolkovo Institute for Law and Development within the framework of the VII St. Petersburg International Legal Forum.
It is the author’s opinion that an attempt to offer a comprehensive definition of the good faith principle in modern legislation is unrealistic. The very nature of the good faith phenomena insists that the answers to this question can be traced only in the course of a detailed examination of the specifics and facts of a particular case. Looking at the findings in foreign banking law is useful in this respect, as far as it helps to define the criteria for identification of the cases where the question of good faith is generally acceptable, as well as to avoid an excessively formal analysis in solving any particular case.
The article (based on inter alia comparative legal considerations) puts forward the three principal foundations of the legal regulation of the bank account pledge, namely priority in rank, identification of the encumbered assets, efficient control of the pledgee over the assets. The author insists that these features are to be stated clearly in the legislation, otherwise they may easily lack its efficiency. Based on the above the author proposes practical solutions to a number of the issues raised in the course of use of this collateral, such as terms and conditions of the pledge agreement, possibility of pledge over already existing bank deposit