Обеспечительные меры. Как нам обустроить Россию?!

Вестник гражданского процесса. 2020. Т. 10. № 4. С. 89–130.

Tay Y., Будылин С. Л.

Interim measures are intended to ensure the effectiveness of judicial proceedings. However, they are often used inefficiently in practice.
A serious problem in Russian civil and arbitration proceedings is
the balance of interim measures taken. The article discusses the
problem of applying interim measures by Russian courts. The article examines current
legislation, explanations of higher courts, and judicial practice. For
comparison, we analyze the procedural rules of England and the United States on security-
measures, as well as the UNCITRAL arbitration rules. The authors conclude that
there are serious problems with the application of interim measures in Russia and
make some suggestions for correcting the situation. It seems
that the key parameter for deciding on interim measures of protection should be the
probability of the plaintiff winning the claim on the merits. However, this parameter is
not mentioned in the text of the law and explanations of the higher courts. This leads to the fact
that the courts sometimes automatically introduce very burdensome for the defendants
interim measures of protection even in apparently unpromising claims. The
problem of interim measures is particularly acute in cases involving subsidiary liability in
bankruptcy, where the property of defendants is often seized for amounts
several orders of magnitude higher than the size of their personal fortune.

Keywords: банкротство, США, Россия, Russia, USA, bankruptcy, Англия, England, обеспечительные меры, ЮНСИТРАЛ, сбалансированность, UNCITRAL, interim measures, Balance