Arbitrazh Courts Research Articles

К вопросу о судебной неустойке в административном судопроизводстве

The article is devoted to the problem of enforceability of judicial acts on public-law disputes, including those related to the imposition upon an administrative body or an official of the duty to exercise discretionary power. The author refers to the origins of this problem and comes to the conclusion that the measure of compulsion of administrative defendants to execute judicial acts should be indirect. Based on the analysis of available public law mechanisms of indirect coercion to the execution of a judicial act, the author points out that they either cannot be characterised as effective, or are disproportionate to the goal, and proposes a solution to the problem by introducing the mechanism of judicial forfeiture in the Code of Administrative Proceedings. The author notes that initially the legislator did not intend to extend it to cases of non-fulfillment of judicial acts on public law disputes, but the approach developed later in judicial practice, which allows the award of judicial forfeiture on certain public law disputes considered by arbitrazh courts, dictates the need to expand the scope of application of judicial forfeiture to cases of failure to fulfil any judicial decision on disputes arising from public legal relations, since there are no objective differences between them.

Судебная экономическая экспертиза в делах о банкротстве

This work is devoted to the study of problems related to the conduct of judicial economic examinations in bankruptcy cases. The article discusses general theoretical issues related to the use of special knowledge in the arbitrazh process, as well as the legal aspects of the use of forensic examinations and their evidentiary value. A special part of the study is devoted to bankruptcy issues. Particular attention is paid to the problems related to the classification and regulatory consolidation of the methods of financial examinations conducted within this category of cases. The paper also provides a detailed study of all available judicial practice of arbitrazh courts of the first, appellate and cassation instances in bankruptcy cases for the period from 2020 to 2023.

Application of the Institute of Private Rulings of Arbitrazh Courts

A private ruling as a procedural institution aimed at eliminating identified violations of the rule of law in the course of justice and preventing their recurrence is well known to civil proceedings and is actively used by courts of general jurisdiction. At the same time, there has always been an ambiguous attitude in the legal community towards private rulings in the arbitrazh process, which found their legislative consolidation back in the Arbitrazh Procedure Code of the Russian Federation in 1992, due to the divergence of views on their purpose and legal essence, fragmented legal regulation, as well as multidirectionally developing judicial practice. In addition, for a fairly long period of time, the institution of private rulings was generally excluded from the arbitrazh process, which negatively affected its importance and relevance on the part of the judicial system. Currently, private rulings form an important procedural tool used by arbitrazh courts both to strengthen the rule of law and to prevent offenses in the field of entrepreneurial and other economic activities also for the purpose of informing the bodies of inquiry or preliminary investigation about the signs of a crime discovered while dealing with the case. However, the differences in the legal regulation of private rulings in the arbitrazh process compared with regulation in civil or administrative proceedings, significant features and significantly different approaches in the practice of their application by arbitrazh courts represent private rulings as a contradictory and conflicting legal institution, which leads to a decrease in its effectiveness and applicability in the work of courts.

The Injunction to Pay under a Bank Guarantee as a Procedural Means of Interference in Guarantee Legal Relations

The paper analyzes the balance between the procedural institution of acceptance of interim measures by the courts and the material institution of ensuring the fulfillment of obligations by issuing independent (bank) guarantees. The author raises the issue of the intrusion of interim measures into the independent nature of the guarantee relationship and justifies the approach according to which such interim measures may be permissible if there are signs of abuse of the right by unscrupulous beneficiaries. The paper analyzes the practice of both arbitrazh courts and courts of general jurisdiction and the approaches of courts to the adoption of interim measures prohibiting banks from making payments under a bank guarantee. The author also touches upon the issues of the standard of proof when courts apply interim measures in guarantee relations. In conclusion, it is substantiated that alternative methods of restoring the rights of the principal or guarantor in the form of collecting unjustified enrichment from an unscrupulous beneficiary may not be effective enough.

Recognition of Arbitral Awards as Prejudicial Decisions

The paper deals with the problem of such a characteristic of arbitral awards as prejudice in relation to the consideration of cases by courts of general jurisdiction and arbitrazh courts. Despite the fact that more and more researchers and practitioners are inclined to recognize the decisions of arbitrazh courts as prejudicial, the work substantiates that such decisions cannot have a prejudicial significance for the consideration of cases in state courts. This takes place due to the fact that arbitrazh courts do not belong to the agencies for the administration of justice, and therefore arbitral awards represent the result of a private-law method of dispute resolution and, accordingly, do not have a public-law character. However, the prejudice of the circumstances established by the arbitral awards is not excluded if the State courts comply with a certain procedure. The paper attempts to describe the procedure for recognizing the circumstances contained in the arbitral award as prejudicial.

Правовые последствия квалификации нескольких товарных знаков в качестве серии

The article analyzes the methodology of Rospatent and the current practice of Russian arbitrazh courts in recognizing several trademarks as components of a single registrations series and provides a brief comparison with the approach adopted in the UK. The author considers all the legal consequences of such qualification in the context of infringement disputes and disputes on the existence of an exclusive right to a trademark.

The Arbitrazh Court as a Subject of a Procedural Legal Relationship

The author makes an attempt to analyze the status of an arbitrazh court that enters into a procedural legal relationship with the participants during consideration of a particular case. The study was conducted on the basis of both general theoretical approaches and approaches developed by the science of civil procedure law to the essence of legal relations and civil procedural legal relations. Taking into account the place and role of the arbitrazh court in the system of judicial authorities, the work identifies specific features of this subject of procedural legal relations. In the author’s opinion, the fact that judicial power is exercised by the arbitrazh court through a procedural legal relationship is of particular importance for the characterization of the arbitrazh court. The status of the arbitrazh court as a judicial authority, in turn, determines the form of its procedural activity. Through the performance of procedural actions, the arbitrazh tribunal exercises its powers. The question of the competence of the arbitrazh court is considered as its characteristic, which determines the ability to become a subject of a procedural legal relationship and, at the same time, to act as the basis for its entry into a procedural legal relationship. The author analyzed legal institutions, as a result of which, when considering a particular case, two arbitrazh courts acquire mutual procedural rights and obligations.

Dispositivity in Russian Business Law

The principle of dispositivity is developed based on the concept of party autonomy that is characteristic of civil law regulation that covers business activities and is realised through the application of, in addition to directly applicable imperative norms, dispositive norms that imply the freedom of the parties to perform (to acquire, realise and dispose of) their rights on their own discretion. Particularly in respect of the civil law relations the law provides the parties with large possibilities to determine their relations in accordance with their autonomy of will and in default of such determination offers the applicable rules. Essentially important in realisation of the principle of dispositivity in the civil law are also initiative norms through the application of which the civil law relations emerge, change and cease. Related particularly to the contract and corporate law regulation in Russia, the traditional totality of the legislative law has been challenged in the pragmatic approach supported by the Russian highest judicial body. According to the Ruling of the Plenum of the Supreme Arbitrazh Court of 2014, the norm that determines the rights and obligations of contractual parties but does not include the expressed provision of its dispositivity or imperativity, ought to be recognised as dispositive or imperative in accordance with the interpretation of its aims, and this indicates of favourable attitude towards business activities as well as of reasonable implementation of the pragmatic attitude that is characteristic to common law to Russian law. In particular, the favouring of the principle of dispositivity in respect to business law regulation, by the concentration of the valuation of the dispositivity of a legal norm in the sphere of successive control, instead of previous control, actually promotes the real freedom of business activities, and makes the regulation flexible. This is particularly important for small and family enterprises that are very common in Russia. Keywords: Dispositive Norm; Initiative Norm; Contract Law; Corporate Law; Pragmatic Approach

Компетенция суда по спорам, вытекающим из владения и реализации прав, удостоверенных депозитарными расписками

The economic situation in the world and the challenges of our time forced many Russian issuers to refuse future depository programmes and curtail the existing ones, which were issued by the relevant acts of the Bank of Russia, with the exception of certain issuers listed by the Government of the Russian Federation. The peculiarities of the circulation of the financial instruments under consideration and the procedure for exercising rights certified by these depositary receipts affect the approaches of judicial practice being formed. This article examines the competence of the court in disputes arising from the exercise of rights certified by depositary receipts; related to automatic or forced conversion of depositary receipts into shares of Russian issuers; on recovery of damages, etc. Ways are proposed to form judicial practice in terms of determining the competence of the court and applying the relevant rules of procedural law. The current public legal regime and public interests of the state are analysed, as well as the competence of the state arbitrazh court in disputes involving persons in respect of whom restrictive measures have been introduced. Possible approaches to judicial practice are formulated that meet the challenges of modernity in the stock market in order to protect the rights of investors, as well as the tasks of effective legal proceedings.

Ущерб окружающей среде в интерпретации российских судов

The article discusses the legal problems of compensation for environmental damage on the basis of judicial acts of the Supreme Court and the Constitutional Court of the Russian Federation, as well as the practice of arbitrazh courts. Trends such as the priority of monetary compensation for damage over recovery in kind and the lack of correlation between the amount of compensation and the costs of recultivation have been noted. Assessment of the damage using calculating methods, as well as the way of spending the amounts recovered, in the author’s opinion, deprives monetary redress of its compensatory nature. As a result, the civil law remedy performs an improper fiscal function and provides only general prevention, but not the restoration of the disturbed state of the environment. The author proposes to change approaches to environmental damage redress, taking into account the rules on “colouring” of environmental payments that have already entered into force.

Conditions for Referring Claims to Summarily Triable Cases not Limited to the Amount of the Claim

The paper examines the procedural rules establishing conditions for assigning claims to summarily triable cases that are not limited by the amount of claims, as well as the practice of arbitrazh courts and courts of general jurisdiction on their application, which indicates the lack of uniformity in the interpretation of these conditions. The author concludes that such claims should, according to the documents submitted by the plaintiff, meet the criteria of indisputability. However, indisputability of the claims identified after referring the case for consideration in a summary procedure does not in itself prevent their consideration in the procedure mentioned above. The author points out the need to distinguish between the conditions for the confirmation of debt by the defendant and the conditions for the recognition of monetary obligations by the defendant; the author justifies the guidelines in understanding and evaluating the latter. The paper also highlights inconsistency in the legal regulation of the balance between writ cases and cases of summary proceedings in civil proceedings. If in the arbitrazh procedure all cases of writ proceedings for which a writ has not been issued fall under the category of summary proceedings that do not require the absence of a dispute concerning the issue of law. In civil proceedings this does not occur and the relevant claims are considered in the general claim procedure, since they cannot be attributed to the category of summary proceedings due to the lack of the criterion of indisputability. In conclusion, the author suggests additional explanations be provided to the courts regarding the formal features of this category of summary proceedings and indicate the need in civil proceedings for summary proceedings to set a limit not of 100,000 rubles, but 500,000 rubles.

Judicial Practice as a Formal Basis for Restricting Human Rights and Freedoms

The paper deals with the issue of the formal grounds for restricting human rights and freedoms. Using the cases from the practice of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, the author confirms that judges’ creativity in the form of judicial decisions can restrict rights and freedoms, which means that it can be a formal basis for their restriction. The classic list of formal grounds, containing normative acts of various levels (from the federal constitutional law and the decree of the President of the Russian Federation to the resolution of the highest official of the constituent entity), is supplemented by judicial decisions. Decisions of the Constitutional Court of the Russian Federation and the legal standings of the Supreme Court of the Russian Federation, including reviews of judicial practice, can separately be considered as formal grounds for restrictions of rights and freedoms, whereas the decisions of arbitrazh courts and courts of general jurisdiction separately do not act as formal grounds for restrictions, since they act in a targeted manner. They become formal grounds when judges make many decisions with the same interpretation (reading) of a legal norm that goes beyond its literal interpretation and restricts the rights and freedoms of the man and citizen. The established judicial practice concerning restriction of rights and freedoms must meet the same criteria as other formal grounds for restrictions, i.e., impose proportionate restrictions corresponding to the objectives set out in the Constitution of the Russian Federation.

О квалификации программ для ЭВМ как составных произведений

In a computer programme development it is absolutely normal not to create a programme from scratch. During the development third party’s solutions (software libraries) are often used. Such use has received its legal assessment in the Decree of the Constitutional Court of 16 June 2022 No. 25-P, as well as in the acts of arbitrazh courts. In so doing, courts interpreted it with equating the programme with a composite work. The article is devoted to the analysis of the notion “composite work” under Russian law in the context of a computer programme, the relations with the notions “complex work” and “derivative work”. It is concluded that there are no sufficient grounds for qualifying a computer programme as composite, complex or derivative work when another programme is used. The article offers various ways out of the situation.

Обзор круглого стола «Социальные сети и гражданское право»

On 20 January 2023, the Department of Private Law of the Faculty of Law of the National Research University Higher School of Economics held a round table on the topic “Social networks and civil law”. The round table was moderated by A.A. Ivanov, Academic Supervisor of the HSE Faculty of Law, tenured professor, retired Chairman of the Supreme Arbitrazh Court of the Russian Federation, and organised by T.S. Yatsenko, Head of the Department of Private Law, Doctor of Law, Professor, and M.A. Volchansky, Deputy Head of the Department of Private Law, Candidate of Legal Sciences. Leading Russian experts on civil law took part in the discussion. Abstracts of their reports are presented in this review.

International treaties on assistance in civil matters and their applicability to recognition of foreign judgments on the opening of insolvency proceedings (reflections regarding the Russian national and international experience)

The article examines the question of admissibility of recognition of foreign judgments on commencement of bankruptcy proceedings on the basis of international treaties on legal assistance. It examines the background of these international treaties, as well as the practice of their application in respect of this category of foreign judgments. The authors conclude that foreign court decisions on opening of insolvency (bankruptcy) proceedings should be regarded as “judgments in civil matters” for the purpose of the international treaties on legal assistance. This category of foreign judgments should be recognised on the basis of international treaties in the Russian Federation, despite the existing approach of Russian courts (including the Judgment of the Arbitrazh (Commercial) Court of the Ural District of 09.10.2019 in case No. A60-29115/2019).

РЕШЕНИЕ СУДА О ПРИЗНАНИИ АКТА ОРГАНА ВЛАСТИ НЕЗАКОННЫМ: ПРЕДЕЛЫ ДИСКРЕЦИИ

The article deals with the problem of restoring the violated rights of an applicant or an administrative plaintiff in cases of administrative proceedings considered by arbitrazh courts and courts of general jurisdiction. The author states that at the moment there are two approaches of judicial practice to ways of restoring the rights of a person in cases of challenging an act of an authority: according to the first, the court, recognising the relevant act as illegal, obliges the authority to re-examine the issue on which the decision was made; according to the second approach, the court obliges the authority to resolve the issue in a specific way (to issue a permit, adopt a specific legal act, etc.). At the same time, the degree of prejudging the issue may vary — from a direct prescription to several possible alternatives, as well as to the establishment of only some parameters (conditions) of consideration of the issue. If the authority is obliged to re-resolve the issue, the new act may repeatedly violate the applicant’s rights, being identical in content to the act recognised as illegal.If the court obliges the authority to adopt an act of a specific content, then this runs into objections regarding the substitution of the authority by the court and its resolution of an issue not within the competence of the court, regarding the substitution of the administrative procedure by the court with the judicial procedure, as well as an argument regarding the violation of the principle of separation of powers. The author proposes a set of criteria that could guide the court in choosing one or another option for restoring the legality and violated rights of the applicant. Among such criteria: the completeness of the establishment of the factual circumstances of the case sufficient for the final conclusion; the nature of the violation of the rights of the applicant (administrative plaintiff); the nature of the administrative decision expected to be adopted, namely, the availability of possible alternatives to a new decision when re-examining the issue; the nature of the judicial decision expected to be adopted. The most significant criterion is reduced to the assessment by the court of the ability of the authority to overcome the judicial act that has entered into force by adopting a new decision of similar content.

The Question of the Conceptual Apparatus of the Russian Judicial System

The paper is devoted to the formation of the conceptual apparatus of the Russian judicial system as an independent branch of law with its own specific subject and method of regulation. The current Russian judicial system legislation is a set of normative acts regulating the organization of various types of courts that form the judicial system of the Russian Federation (the Constitutional Court of the Russian Federation and constitutional (statutory) courts of constituent entities of the Russian Federation, courts of general jurisdiction and arbitrazh (commercial) courts). A separate block of judicial laws consists of normative acts on the legal status of judges, jurors and arbitrazh (commercial) courts assessors, as well as on the bodies of the judicial community and the bodies ensuring the activities of the court. All laws contain a certain categorical apparatus, which is often called a conceptual apparatus. The authors draw attention to the fact that, despite its great importance, there is virtually no terminological unity in the sphere of the judicial system. Many doctrinal definitions do not find their legal support, and therefore receive different interpretations and meanings, which is unacceptable in a developed legal system. In addition to analyzing the conceptual apparatus, the authors also make a conclusion about the need to adopt a unified judicial code that would solve many problems of legal science and practice. The study of the issues of the conceptual apparatus of the Russian judicial system makes it possible to summarize that, firstly, the basic and derived definitions of the judicial system are practically absent in the texts of normative legal acts; secondly, the same terms are used in different meanings; thirdly, a clear categorical apparatus has not been developed, which is necessary for any branch of law; finally, it is necessary to adopt a unified judicial code.

Infrastructural Bases for Improving the Activities of the Arbitrazh Court of the Cassation in terms of Analysis and Generalization of Judicial Practice

The paper draws attention to the need for a deeper study of infrastructural conditions for the effective operation of the arbitrazh court of cassation. Based on the analysis of scientific publications, regulatory documents and problems in practical activities on the topic of the work, the author proposes three directions for its improvement for discussion. These include the following. Synchronization of law enforcement and generalization of judicial practice on the basis of scientific research methods require further improvement of the scientific qualifications of judges and court employees. Targeted collection and analysis of statistics require acquisition and study of new judicial metrics. It is important to systematize and improve the work of internal review groups (scientific advisory board, expert advisory groups, working groups, departments, etc.) and publicize the results of their recommendations in reviews, press releases and journals. The role of advanced information resources in studying the opinions of persons involved in the case and receiving feedback is also noted. According to the author, account of these components will lead to the fact that at the stage of cassation consideration of cases, judges will resolve problematic issues of substantive and procedural law and stop legal incidents more accurately, thereby minimizing errors in all parts of the judicial system. It is recommended to develop a regulation on analysis groups in the courts of cassation on issues of judicial practice, as well as on the improvement of arbitrazh legislation. The solution of intra-system infrastructure issues, which are deterrents for obtaining legal leaps, will significantly increase the effectiveness of the entire judicial sphere.

Security transfer of title in the form of a sale and repurchase agreement (repo)

In the article the sale and repurchase agreement (repo) and the purpose of its conclusion are examined. Among others, the credit and collateral purpose of the contract is highlighted. It is recommended to distinguish the repo with the purpose of title financing from the agreement concluded with another purpose. In this regard, the signs that indicate the credit and collateral purpose of the contract are proposed. Then the structure of obligations in repo transaction is described as well as requirements to its subjects and object. The article contains the analysis of arbitrazh (commercial) courts practice on disputes related to repo. Some of the problems faced by courts are discussed, including the recharacterization of repo as a pledge over securities. Certain issues related to repo are examined using the example of the case considered by the Supreme Court of the Russian Federation. While evaluating the court decisions of the case the norms to be applied to the contract are defined. The specific rules on repo are compared with the norms on loan and pledge. As a result of the comparison, it is concluded that the norms on repo in their interpretation in accordance with the credit and collateral purpose of the contract achieve a balanced regulation of the relations and at the same time have regard to the particularity of the securities market. It is also concluded that the norms on loan and pledge should not be applied to repo. At the end of the article, it is recommended that in the repo dispute the legal approaches to the other title-finance devices should be applied. In this respect some examples when the legal approaches to finance lease have been applied to repo in the practise of the Supreme Court of the Russian Federation are noted.

Корпоративный косвенный иск в России: инструмент защиты корпорации от вреда менеджмента или способ вторжения в отношения корпорации с третьими лицами?

Derivative claims in corporate law are claims that participants (shareholders) file ‘on behalf of and in the interests’ of the corporation, and the enforcement is held in favor of the corporation itself. This is an extremely popular way to resolve a corporate conflict: every year Russian arbitrazh (commercial) courts consider about 2,000 such claims, which is 10–15% of all corporate disputes. In Russia, compared to foreign legislations, the participants of the corporation have the right to interfere in the relations of the corporation with third parties. As judicial statistics demonstrate, claims to challenge transactions of a corporation are more popular and more effective compared to a classic damages claim against management.