News of Moscow District Courts
Interview of the issue
V.V. Kulakov. “Recently, our courts have been confronted with certain problems that have led us to consider the recognition of insurance as a means of enforcing obligations, or at least some of their features”
Personal insurance as a means of enforcing obligations
Analytics: Enforcing obligations: issues of theory and practice
Charge of corporate rights and the status of the chargee
The article discusses the nature of the rights of the chargee when encumbered by a charge of corporate participation rights. The author comes to the conclusion that the chargee, when exercising charged corporate rights, is not in a corporate legal relationship with a legal entity. The chargee cannot be held liable by the participants of the legal entity and the legal entity itself for improper performance of corporate obligations.
Keywords: charge, title security, corporate rights, fiduciary duties, subsidiary liability
A.V. Kukin, O.P. Pleshanova
Redeemable leasing and bankruptcy issues: theory and case law
The authors examine the SC RF legal views on buy-out leasing from the standpoint of the theory of leasing relations and practical implications. Particular attention is paid to the issues of bankruptcy of the lessee: the fate of the leased asset, super-collateralisation of obligations to the lessor and super-priority they get before other creditors. The authors conclude that the highest court has significantly developed previous case law and has developed approaches that allow for successful resolution of specific disputes. However, the theoretical foundation of these approaches has not yet been clearly formed, the institution of buy-out leasing is in an active stage of development.
Keywords: buy-out lease, lessee’s bankruptcy, netting of mutual obligations, supercollateralisation, superpriority of lessor
Balancing outside bankruptcy proceedings: theoretical and practical approaches
This article is devoted to the possibilities of balancing claims or netting under a work contract outside bankruptcy procedures. On the example of a lawsuit that has passed all stages of the claim proceeding, the admissibility of netting is considered and the principles of applying and preventing the application of netting in general court procedures are formulated.
Keywords: netting, legal claim, offset of counterclaims
Analytics: Open Tribune
The Problem of Interim Measures in Arbitration Proceedings: Ways of Resolving
The article is devoted to the adoption of interim measures in arbitration proceedings. Interim measures taken by a state arbitrazh (commercial) court enable preservation of the subject matter of an arbitration dispute, execution of a decision made in the course of arbitration etc. However, this institute is poorly used in modern practice of arbitration proceedings. The author considers the necessary changes in the procedural legislation. The article can be useful for those who is interested in problems of law in the field of commercial and arbitration procedure.
Keywords: institution of interim measures, concept of interim measures, ways of taking interim measures, legally significant circumstances in a case, reasons for refusal of the state arbitration court to take interim measures, legal regulation of arbitration proceedings
The model of negatory protection in Russian law and common law states. Comparative legal analysis.
Actio negatoria is a classic property law claim. The scope of its application are violations of property rights, which are not related to deprivation of possession. At the same time, the analysis of the practice of applying Article 304 of the Civil Code of the Russian Federation demonstrates that when deciding on settling actio negatoria claim, courts often apply the tort law approach. This is largely due to the similarity of conflict situations to which a tort law and actio negatoria lawsuit are applied. Thus, for the common law system of England and the USA actio negatoria claim is terra incognita. Equivalents of actio negatoria in common law are represented in the group of tort claims — private nuisance and trespass to land. This article is devoted to the analysis of these torts, as well as the comparison of approaches of negatory protection in Russian and English law.
Keywords: actio negatoria, tort of private nuisance, common law, property law, tort law
The main powers of the Superior Council of the Magistracy of the People’s Democratic Republic of Algeria
Studying the foreign experience of legal regulation of functioning of bodies of judicial community, the author examines the basic powers of the High Council of Magistracy of the People’s Democratic Republic of Algeria, which is the supreme body of the community of magistrates of that country. The article analyses the regulations, the powers of the Council regarding the appointment, transfer and promotion of magistrates, the powers relating to the discipline of magistrates and other powers. The author dwells upon disciplinary offences of magistrates, the sanctions to be imposed for them and the disciplinary procedure.
Keywords: foreign experience, organs of the judiciary, People’s Democratic Republic of Algeria, Supreme Council of the Judiciary, basic powers, disciplinary procedure
Court Practice Reviews
Protocol No. 171 of the working group meeting to discuss the application of the Arbitrazh (Commercial) Procedure Code of the Russian Federation
Scientific Advisory Council
Protocol No. 22 of the meeting of the Scientific Advisory Council of the Moscow District Commercial Court, held via web conference
Protocol Decision No. 11 of the Presidium of the Moscow District Commercial Court