Legal Ground of Choice of Law Agreement Permissibility in International Commercial Arbitration

2020 ◽  
Vol 7 ◽  
pp. 23-30
Author(s):  
T. V. Novikova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Ad Hoc ◽  
Civil Code ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
International Commercial Arbitration ◽  
The Supreme Court ◽  
Research Goal ◽  
The Russian Federation

Problem statement. Specific nature of international commercial arbitration raises an issue whether in this case lex fori is capable to be the ground of choice of law agreement permissibility. Topicality of the issue is determined by the Supreme Court of the Russian Federation explanation of 09 July 2019 to courts referring issues of choice of law permissibility to lex fori. Goals and tasks of the research. Goal – research of legal ground of choice of law permissibility in international commercial arbitration. Tasks: to study the ICAC approaches to choice of law acknowledgement; to advance a hypothesis on the influence of explanation by the Supreme Court of the Russian Federation in respect of article 1210 of the Russian Federation Civil Code to the ICAC practice and to draw a conclusion on the international commercial arbitration «procedural documents» provisions as the ground for it to acknowledge choice of law agreement. Methods. Methods of formal logic play a key role: analysis of the ICAC practice permitted to distinguish three approaches to choice of law agreement permissibility grounding; induction of ratio decidendi of the ICAC separate decisions – to draw a conclusion on the article 1210 of the Russian Federation Civil Code influence to the ICAC practice in general and on this basis to advance a hypothesis on possible influence of explanations by the Supreme Court of the Russian Federation in this respect; comparison of the international commercial arbitration rules – to draw a conclusion that these provisions are the ground of choice of law acknowledgement by the tribunal. Results, brief conclusion. Firstly, three approaches of the ICAC to the choice of law agreement permissibility grounding have been revealed and in each them the ICAC relies on the article 1210 of the Russian Federation Civil Code. As far as the article 1210 has an impact on choice of law permissibility grounding within the ICAC, explanations by the Supreme Court of the Russian Federation in respect of this article are capable to have a possible impact on the ICAC practice. Secondly, within the international commercial arbitration the choice of law agreement permissibility grounding should be based on provisions of its «procedural documents», e. g. national law on international commercial arbitration, rules of institutional arbitration or ad hoc arbitral tribunal, – these rules (but not conflict of laws addressed to courts of the state of the arbitration seat) could be considered as its peculiar lex fori.

Identification by the Сourt of Choice of Law Agreement Permissibility and Validity (in the Light of the Supreme Court of the Russian Federation Plenum Explanation of 9 July 2019)

2020 ◽  
Vol 3 ◽  
pp. 5-13
Author(s):  
T. V. Novikova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Civil Code ◽  
Theoretical Research ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
The Supreme Court ◽  
The Russian Federation ◽  
General Provision

Problem statement. Standard of choice of law by the parties to international contractual relations is set by article 1210 of the Russian Federation Civil Code, which nevertheless does not cover issues of choice of law agreement permissibility and validity. Goals and tasks of the research. Goal – analysis of legal foundation for the court to identify choice of law agreement permissibility and validity – in the light of the Supreme Court of the Russian Federation plenum explanation of 09 July 2019. Tasks: review of approaches to identify choice of law agreement validity and criticism towards some of them; substantiation of delimitation made by the Supreme Court of the Russian Federation between issues of choice of law agreement permissibility and validity; substantial analysis of identification by Russian courts of choice of law agreement permissibility. Methods. Methods of theoretical research are tools of formal logic, which include: analysis of the court procedure to approve the choice of applicable law, enabling to distinguish in its frames issues of permissibility and validity of such choice; deduction of basic conflict of laws logic to the court acknowledgement of choice of law agreement permissibility – on the ground of national conflict of laws rule. Methods of empirical study are based on identification and comparison of judicial acts of arbitration and regular courts – in respect of legal ground to identify choice of law agreement permissibility. Results, brief conclusion. Three basic options of legal ground to identify choice of law agreement permissibility and validity have been elaborated by jurisprudence: law of the court (lex fori); law chosen by the agreement of parties (lex voluntatis); law applicable to the substance of relation due to the conflict of laws rule (lex voluntatis). The Supreme Court of the Russian Federation formed a combined approach making delimitation between issues of choice of law agreement permissibility and validity as well as referring the first to lex fori and the second – to lex voluntatis. Identification of choice of law agreement permissibility by Russian courts on the basis of national conflict of laws rule (article 1210 of the Russian Federation Civil Code in combination with the general provision of its article 1186) corresponds in full extent to the settled judicial practice, complies with the basic conflict of laws logic and seems to be effective.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

scholarly journals Assignment of a Claim Under an Obligation in Which the Identity of the Obligee Is Essential for the Obligor

2020 ◽  
Vol 17 (4) ◽  
pp. 455-464
Author(s):  
A. A. Martsun
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Scientific Literature ◽  
Civil Code ◽  
Essential Value ◽  
A Value ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The Plenum of the Supreme Court of the Russian Federation adopted a resolution of December 21, 2017 No. 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction", which sets out important clarifications regarding the application standards contained in this chapter. At the same time, not all issues related to the assignment of the claim were resolved by the above resolution. One of these issues is the definition of the term “essential value of the identity of the creditor” or approximate criteria for such a value in the context of the need to obtain the latter’s consent to the assignment of rights. The presence of this problem is rightly indicated in the scientific literature [3, p. 549–655, 688–713]. The Author examines the Model Rules of European Private Law and the UNIDROIT principles in order to find a solution to the problem. Attention is drawn to the problem of determining the essential value of the creditor for the debtor in the case of assignment of the right of claim, as well as to the consequences of making the assignment without the consent of the debtor under an obligation in which the identity of the creditor was essential.In the Author's opinion, the identity of the creditor is recognized as essential for the debtor when the connection between the debtor and the creditor arose as a result of the conclusion of a transaction that has a personallyconfidential nature, or if the connection arose during the conclusion of other transactions in the case when the connection was broken during the execution assignment of rights entails or may entail a significant deprivation for the debtor of what he had the right to count on when concluding a transaction with the creditor.In addition, situations are considered that are an exception to the presumption of the absence of a significant value of the creditor's personality for the assignment of claims for monetary obligations. The author also points out that the consequence of the transaction on the assignment of rights without the consent of the debtor in the context of paragraph 2 of Art. 388 of the Civil Code of the Russian Federation is the nullity of the transaction on the basis of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation.

scholarly journals Implementation of the Doctrine of Good Faith (Bona Fides) in Corporate Legal Relations

2020 ◽  
Vol 1 (12) ◽  
pp. 70-80
Author(s):  
Yu. V. Brisov
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Civil Code ◽  
Good Faith ◽  
Corporate Ethics ◽  
The Supreme Court ◽  
The Usa ◽  
The Russian Federation ◽  
The Law

Good faith (bona fides) is presented in the Civil Code of the Russian Federation as a general principle and presumption. In resolving corporate disputes, the courts are governed by general principles of good faith. However, corporate relations have a specificity due to, inter alia, the variety of corporate forms. It can be assumed that the application of good faith provisions should also vary taking into account the characteristics of corporate patterns, the types and forms of corporate relations, subjective internal corporate circumstances. Common law countries have developed a system of good faith elements and special tests to apply the required requirement of good faith according to the context. A special place is given to fiduciary relations as a product of bona fides. The author has carried out a comparative analysis of the provisions of the Plenums of the Supreme Court of the Russian Federation, the Supreme Court of the Russian Federation and the law enforcement practice of Germany, the USA, Great Britain and Canada on the issues of good faith in the consideration of corporate disputes. Special attention is paid to the interrelation between corporate ethics and law. Examining a number of key cases from the law-enforcement practice of the courts of the Anglo-American system of law, the author substantiates the possibility of applying special tests, namely, objective and subjective good faith tests, to regulate matters related to the application of the rules of good faith from the Civil Code and special laws in dealing with corporate disputes. Special attention is paid to the role of courts and permissible discretion in the formation of standards of enforcement of blanket norms and general principles of law in corporate relations.

Codification of Rules of Corporate Legislation on Liability of Managers for Damages Caused to Legal Entities

10.12737/1812 ◽  
2013 ◽  
Vol 2 (1) ◽  
pp. 32-40
Author(s):  
Олег Гутников ◽  
Olyeg Gutnikov
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Civil Code ◽  
Corporate Law ◽  
Legal Entity ◽  
Plenary Meeting ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Corporate Legislation ◽  
Legal Entities

The article covers various matters relating to liability of managers for damages. It contains analysis of particular corporate law rules in question with specific focus on the decree of Plenary meeting of the Supreme Court of the Russian Federation of July 30, 2013 N 62 “Certain Matters Connected with Compensation of Damages by Members of Management in Legal Entities”. The author comes to the conclusion that the rules of liability should be uniform irrespectively of the particular type of legal entity. There are also justifying arguments in support of introduction and codification of general provisions regarding liability of managers into the Russian Civil Code.

Determination of the Law Applicable to Foreign Economic Transactions under the Principle of the Closest Connection

10.12737/4828 ◽  
2014 ◽  
Vol 2 (7) ◽  
pp. 95-103
Author(s):  
Юлия Блинова ◽  
Yuliya Blinova
Keyword(s):  
Foreign Trade ◽  
Present Article ◽  
Russian Federation ◽  
Civil Code ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Applicable Law ◽  
Chamber Of Commerce ◽  
The Russian Federation

The present article focuses on questions of qualification of applicable law to foreign trade transactions on the basis of the principle of most significant connection if the applicable law has not been chosen by the parts. The meaning of the principle of most significant connection is made study of in national law, the meaning of the term “characteristic performance for the contract meaning” is defined by analyzing of different legal sources. Herewith attention is paid to the problems connected with the using of article 1211 of the Civil Code of the Russian Federation and precedents of the International Commercial Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation are analyzed.

scholarly journals REVIEW OF LEGAL POSITIONS OF THE SUPREME COURT OF THE RUSSIAN FEDERATION FOR 2015-2020 ON THE APPLICATION OF THE PROVISIONS OF THE CIVIL CODE OF THE RUSSIAN FEDERATION ON THE INVALIDITY OF TRANSACTIONS AND ON THE PROHIBITION OF ABUSE OF RIGHTS

2020 ◽  
pp. 7-15
Author(s):  
Ольга Георгиевна Барткова
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Russian Federation ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right ◽  
Relationship Of ◽  
The Relationship

В статье исследуется содержание положений основных Постановлений Пленума Верховного Суда РФ, а также обзоров судебной практики, утверждённых Президиумом Верховного Суда РФ, которые относятся к порядку применения ст. 168 во взаимосвязи со ст. 10 ГК РФ. Обосновывается вывод о том, что злоупотребление правом отнесено законом к числу самостоятельных оснований для признания сделки недействительной. Приведены и проанализированы примеры споров, иллюстрирующие взаимосвязь норм о недействительных (ничтожных) сделках с институтом «пределы осуществления гражданских прав», с основными началами гражданского законодательства. The article examines the content of the provisions of the main Resolutions of the Plenums of the Supreme Court of the Russian Federation, as well as reviews of judicial practice, approved by the Presidium of the Supreme Court of the Russian Federation, which relate to the procedure for applying Art. 168, Art. 170 of the Civil Code of the Russian Federation in conjunction with Art. 10 of the Civil Code of the Russian Federation. The conclusion is substantiated that abuse of the right is attributed by law to the number of independent grounds for recognizing the transaction as invalid. The examples of disputes are presented and analyzed, illustrating the relationship of the norms on invalid (void) transactions with the institution of «limits of the exercise of civil rights», with the basic principles of civil legislation.

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