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Regular version of the site
Of all publications in the section: 74
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Working paper
Postylyakov S. Law. LAW. Высшая школа экономики, 2015. No. WP BRP 55/LAW/2015.
The article deals with relevant problems of determination of the objective limits of the prejudgment using the prejudgment of the particular types of court rulings as an example. The author concludes that the concept of «circumstances» should be defined as facts and established on their basis legal relations. The author considers that the court orders, the judgments in absentia, the judgments of dismissal due to the approval of the settlement as well as the higher court rulings that verify legality of previous judgments not verifying validity should be excluded from the objective limits of the prejudgment. The author analyzes rules of the draft of the Civil Procedure Code of the Russian Federation of 2000 and comes to the conclusion that Article 61 of the current Civil Procedure Code of the Russian Federation requires to be amended
Added: Oct 8, 2015
Working paper
Makarov A. Law. LAW. Высшая школа экономики, 2016. No. WP BRP 67/LAW/2016 .
This paper analyses antitrust enforcement practice in Russia (2008–2012), in the area of competition-restricting agreements (horizontal and vertical). The analysis is based on a court decision database of litigation with the Russian competition authority (FAS). The database contains 400 cases, including 236 horizontal agreements (HA), 164 other agreements (vertical agreements (VA), conglomerate and mixed agreements). On the basis of this database important features of the interpretation and implementation of the competition law in Russian practice and the priority areas of the enforcement were identified. Antitrust policy was analysed taking into account the risks of type 1 and 2 errors, including the problem of the flexibility of prohibitions (per se vs rule of reason (ROR)), standards of proof, the problem of consistency of enforcement
Added: Jul 27, 2016
Working paper
Ялбулганов А. А. Law. LAW. Высшая школа экономики, 2014. № 35.
The creation of the EurAsEC Customs Union and Russia’s ascension into the WTO has led to a radical change in Russia’s anti-dumping legislation. Anti-dumping regulation ceased to fall under national jurisdiction and was transferred to the Eurasian Economic Commission, a supranational regulator. This article analyzes the new anti-dumping legislation of the EurAsEC Customs Union, anti-dumping procedures, their principles, participants, an main stages, as well as the legal treatment of inform ation used in the anti-dumping regulation.
Added: Apr 21, 2014
Working paper
Poldnikov D. Law. LAW. Высшая школа экономики, 2013. No. 16/LAW/2013.
  The paper suggests several ways to rediscover the legacy of early modern and classical natural law of the 18th century in contemporary legal thought through the joint efforts of legal history and legal theory with particular reference to the domain of contract law. Additionally, the paper justifies the revival of the research in the domain of natural law in connection with legal argumentation.   
Added: May 2, 2013
Working paper
Maslennikova S. Law. LAW. Высшая школа экономики, 2013. No. 14/LAW/2013.
The author analyzes the different forms of relationships between businesses and bodies of state power in Russia: private and public partnership, the delegation of public powers and property, self-regulation, the transfer of government authority to the private organizations, self-regulation, and how public power is influenced including by specialists. The experience of foreign countries and the legal view on the social responsibility of business are provided. The political-legal traditions of the relationships between private organizations and bodies of state power are analyzed. This has predetermined the current legislation.  The informal and relatively new mechanisms of protection of the rights of businesses are described.
Added: Apr 27, 2013
Working paper
Totyev K. Y. Law. LAW. Высшая школа экономики, 2016. No. 2.
This paper explores business transactions in the context of the principle of legality. It will be argued that Article 168 of the Russian Civil Code, as a meta-rule, contains three types of rules: 1) rules dealing with the priority of special rule and exceptions (exclusive rules); 2) rules dealing with the interpretation of general, special and exclusive rules as well as with the requirements of statutes or other legal acts violated by a transaction and established outside Article 168 of the Civil Code; 3) rules dealing with the admissibility of special rule and exceptions, as well as with the conditions of admissibility of these rules. With regard to the first group of the rules, the legislature and commercial courts consider Article 168 of the Civil Code a common base with respect to other grounds in the Civil Code and in certain other statutes for declaring transactions invalid. According to the second group of rules, the subject-matter (object) of legal interpretation consists of two elements: а) the text of Article 168 of the Civil Code; and b) the texts of legal acts, described by the generic term “statute or other legal act.” Article 168 of the Civil Code provides instructions not only for rules as objects of application of the article, but also for the methods of interpreting violated requirements. The rules of admissibility for special rule and exceptions, as well as the conditions of admissibility for these standards, are aimed at the numerous cases in which the legislature, in the Civil Code or in other legal acts, expressly establishes nullity (voidness), voidability and other legal consequences for illegal transactions. The paper also answers questions regarding the impact of recent amendments to the Russian Civil Code on using rules for business transaction invalidity in commercial courts.
Added: Feb 27, 2016
Working paper
Brazhnik T. Law. LAW. Высшая школа экономики, 2015. No. WP BRP 57/LAW/2015.
The present article is motivated by the growing interest in the problem of trademark usage on the Internet and comparatively low interest in the problem of legal protection of other objects having factual distinctiveness. Despite the fact that differences in regulation of on-line and off-line trademark utilization have been recognized for a long period of time, there is still no harmonization in the field of other means of individualization among numerous Russian laws. Although recent research works are numerous, lawmakers haven’t still decided on how Internet has influenced on exclusive rights granted with the Chapter 76 of the Civil Code of Russian Federation. The issue at hand is affected by the significant growth of the Internet and electronic commerce. Moreover, problem discussed in present paper comes from the fundamental question of limits on the exercise of subjective civil rights. The aim of this paper is to analyze different types of means of individualization under Russian legislation; to show key aspects of usage and protection of the means of individualization on-line; to reveal the doctrinal theories stipulating emergence of new distinctive objects; to describe the current and potential pitfalls of legislative framework; and to demonstrate modern legal trends in the field. In addition, the paper suggests different steps and models of further regulatory development. 
Added: Oct 5, 2015
Working paper
Баширов М. А. Law. LAW. Высшая школа экономики, 2013. No. WP BRP 29/LAW/2013.
Сloud computing is treated by most of the experts as one of the main trends of information technologies development for forthcoming years. In present article we focus on general overview of the main aspects of cloud computing services legal regime in Russia. Such aspects include, inter alia, intellectual property and contract law matters, taxation issues, execution of the agreements, warranties and representations under cloud computing agreements and personal data regulations.
Added: Jan 24, 2014
Working paper
Fogelson Y. B. Law. LAW. Высшая школа экономики, 2013. No. WP BRP 23/LAW/2013.
This work is an attempt to offer to qualify contracts for the benefit of a third party not by the presence in the text of contract of a right of the third party to enforce the contract, but on the basis of the parties' intention to provide the benefit of a third party as a goal of the contract. The right of a third party to enforce the contract for receive this benefit will be derived from this qualification.
Added: May 6, 2013
Working paper
Savelyev A. Law. LAW. Высшая школа экономики, 2016
The paper analyzes legal issues associated with application of existing contract law provisions to  so-called Smart contracts, defined in the paper as “agreements existing in the form of software  code implemented on the Blockchain platform, which ensures autonomy and self-executive  nature of Smart contract terms based on predetermined set of factors”. The paper consists of  several sections. In the first section, the paper outlines peculiarities of Blockchain technology as  currently implemented in Bitcoin cryptocurrency and which forms the core of Smart contracts. In  the second section, the main characteristic features of Smart contracts are described. Finally, the  paper outlines key tensions between classic contract law and Smart contracts.. The conclusion  section sets the core question for analysis of the perspectives of implementation of this  technology by governments: “How to align the powers of the government with Blockchain if  there is no central authority but only distributed technologies”. The author suggests two  solutions, which are not optimal: 1) providing the state authorities with the status of a Superuser  with extra powers and 2) relying on traditional remedies and enforcement practices, by pursuing  specific individuals – parties to Smart contract - in offline mode. It is emphasized that those  jurisdictions, which have the most Blockchain-friendly regulations will have competitive  advantage in attraction of new innovative business models and companies willing to exploit  them in a legal way.
Added: Dec 22, 2016
Working paper
Chekhovskaya S. A. Law. LAW. Высшая школа экономики, 2015. No. WP BRP 58/LAW/2015.
This paper aims to add to literature on the connection between corporate governance and corporate law development. “Corporate governance” came into vogue in the 1970s in the United States. It had become the subject of debate worldwide by scholars, regulators, investors etc. This paper considers the nature and extent of corporate law`s contribution to the development of corporate governance and vice versa. In recent years, Russia and most continental countries (Germany, France, Italy) have enacted significant corporate law reforms. In Europe these reforms aim to strengthen the mechanisms of internal governance, empower shareholders, enhance disclosure requirements, and toughen public enforcement, which are the most effective tools for countering abuses by dominant shareholders. It is widely discussed among legal professionals in Russia that there is now an urgent need for a comprehensive review and modernization of corporate law and governance. However, in the last two years the Russian Civil Code and Federal Law “On Joint Stock Companies” have been changed deeply. Under the new Civil Code, all legal entities (both commercial and non-commercial) are divided into corporate and unitary entities.
Added: Dec 28, 2015
Working paper
Kashanin A. Law. LAW. Высшая школа экономики, 2014. No. WP BRP 32/LAW/2014.
In codifying intellectual property rights, Russian legislators have left what standards of originality and creativity can be considered criteria of copyrightability a moot point. Nevertheless, it is crucial for answering questions about where the lower boundary of copyrightability lies and, consequently, what intellectual products that have an insignificant creative component, but are of high economic importance – such as databases, computer software, advertisement slogans or design work – should be copyrightable. This article addresses the problem of identifying criteria for copyrightability and non-copyrightability in the Russian legal literature by modeling various types of demarcation criteria and analyzing their strong and weak points. Analyzing debates in the legal literature warrant the conclusion that there is a trend to set looser standards for originality and creativity and grant copyright protection to works of low authorship.
Added: Feb 14, 2014
Working paper
Tretyakov S. V. Law. LAW. Высшая школа экономики, 2013. No. 11/LAW/2013.
In the present working paper we have hypothesized an explanation for the fact that the evaluation of the social impact of law is modeled predominantly by the economic efficiency concept. Considering the early stages of the concept’s development, we try to make it more intelligible to the European lawyers.
Added: Mar 14, 2013
Working paper
Belkovich R. Law. LAW. Высшая школа экономики, 2013
Traditional ideas sometimes turn into revolutionary ones because of changing circumstances in which they continue to exist. Their revolutionary appearance, however, might be intentionally accentuated by the new followers of these ideas. Consequently, a legitimate and respectable tradition of thought becomes marginal and ridiculed. It is an aim of the history of political thought then to reveal the true origins of these ideas. This paper focuses on one such case, namely, the equitable commerce theory of the first American anarchist Josiah Warren. The study seeks to show that the novel character of this theory is overestimated and that an essentially conservative idea of just price lies in the foundation of the whole American anarchist movement.
Added: May 14, 2013
Working paper
Antonov M. Law. LAW. Высшая школа экономики, 2014. No. 33.
In this article, the author examines the socio-legal conception of Eugen Ehrlich and its relation to state law and judicial law enforcement. The attention is focused on the practical implications of this conception on the functioning of judicial systems. Analyzing the criticism raised against Ehrlich’s conception, the author emphasizes that this thinker stood on a scientific platform which did not necessitate any strict distinction between the factual and the normative — between Is and Ought — considering any attempt to draw a net distinction between societal phenomena as pointless. Ehrlich sought to enlarge the province of jurisprudence through the application of sociological methods to the factual material from which arise social institutions. These institutions crystallize social practices into rules of behaviour, but this crystallization does not happen automatically. It requires an intellectual reconstruction of these practices by the actors acting in the legal order. A scientific examination of law implies that all these components (social facts, institutions, mental constructions, rules and norms) are taken into consideration. Ehrlich critically assesses both the state-centrist ideology of the doctrinal law and the metaphysic speculations about law, arguing that correct law enforcement needs to rely on sociological analysis. The judge should take advantage of methods of sociological research, which allows stating the actual trends of justice in society and comparing these trends with those existing at the time the applicable legal rules were adopted. This comparison leads to a correct balancing of the conflicting interests with a view to the values protected by the legal order. At the same time, the sociological data just help the judge to reveal the will of the lawmaker who would protect the conflicting interests in the same manner as those which were protected when the lawmaker adopted the legal rules in question.
Added: Feb 24, 2014
Working paper
Antonov M. Law. LAW. Высшая школа экономики, 2012. No. 07.
The author examines the theoretical difficulties of implementing decisions and awards of foreign courts in Russia.  Along with the normative conditions of recognizing and enforcing foreign decisions, the author draws attention to the educational background of legal professionals  – especially judges  –  in Russia.  It is suggested that the statist conception of law inherited from Soviet legal science  implicitly leads the contemporary Russian legal doctrine of negating the obligatory force of decisions from foreign courts. In the opinion of the author, the core of this conception resides in the traditional concept of sovereignty, which excludes the direct effect of legal acts made by foreign states, private arbitrations, and international organizations. Nevertheless, some signs of changes in the attitude of the Russian judiciary can be marked in several precedential rulings of the commercial courts. The  author concludes that there are tendencies that are symptomatic of a different concept of law developing in the mentality of legal professionals in Russia.
Added: Jan 17, 2013
Working paper
Nesterov A. Law. LAW. Высшая школа экономики, 2012. No. 06.
This paper considers the main theoretical, regulatory, and practical problems of expertics. It describes a new scientific direction in the field of juridical sciences, specifically in the study of the legal and juridical attributes of expertise and expert activity. Expertics is defined to be a combination of science, practice, and scholarly study. The necessity of studying expertics pertains not only to lawyers, but also to lay individuals whose work concerns various institutions of expertise.
Added: Dec 26, 2012
Working paper
Mikhail S. Zhuravlev. Law. LAW. Высшая школа экономики, 2014. No. 39/LAW/2014.
This paper deals with the issues of competition law and IP law interaction. Current Russian legislation provides absolute immunity from extending the antitrust prohibitions over the exercise of exclusive IP-rights. The idea of the article is that this approach needs to be revised. Russian court practice, legal doctrine and economic theory necessitate more flexible antitrust regulation in the area of IP. The analysis of US, EU, and Japanese models of legal regulation has revealed different approaches to the issues of antitrust policy in this field of social relations. Therefore, this paper suggests a different concept of regulation¬ – keep the general immunity from the application of antitrust prohibitions to rightholders, but make it conditional. At the same time, in order to ensure the optimal balance between private and public interests and to maintain the incentives for innovative activity, antitrust legislation should provide a system of guarantees for rightholders.
Added: Sep 19, 2014
Working paper
Ivanov E. A. Law. LAW. Высшая школа экономики, 2012. No. 08.
In this article we  analyses threats to international security posed by  international terrorist organisations and main approaches to combating their criminal activities at the national and international levels. We offer  own concept of responsibility of international terrorist organisations under international criminal law and establishment of an International Tribunal on Crimes of International Terrorist Organisations as a possible solution.
Added: Jan 17, 2013
Working paper
Selivanovskiy A. Law. LAW. Высшая школа экономики, 2016
This Working Paper is dedicated to the new system of legal regulation of credit rating agency (hereinafter “CRA”) activity in Russia. The main focus of the new rules is administrative regulation and rigid control of procedural issues by the Russian mega-regulator for financial markets. The author criticizes current legislation and argues that such rules will obstruct CRA activity and adversely affect protection of investors’ and creditors’ rights, and will ultimately lead to an increase in transaction costs. It is necessary to continue work on CRA regulation in order to develop effective mechanisms to ensure a balance of interests among parties to the credit rating contract, and ensure that investors and the regulator take into account not only legal, but also economic, managerial, organizational and a number of other issues. Regulation of CRA focused only on rigid control of procedural issues by the Bank of Russia will not lead to the desired result. CRA regulation should instead be "delicate and fine."
Added: Apr 1, 2016