News of Moscow District Courts
Interview of the issue
A.A. Kostin. “Despite Different Legal Cultures, Experienced Arbitrators Are Able to Find Acceptable Solutions”
Analytics: Application of Foreign Law: Current Practice
Certain Issues of Application of Foreign Law Norms by Commercial Courts of the Russian Federation
The article deals with certain aspects of application of foreign law by commercial courts in economic disputes with foreign elements. Among them are definition of applicable foreign law and ways of establishing its content. In particular, the author relies upon the official explanations of the higher courts.
Keywords: commercial court, application of foreign law, methods of establishing the content of foreign law, interpretation, private international law
Foreign law: To Apply or not to Apply?
The article deals with issues arising from application of foreign law by courts. The author researched three grounds for legal non-application of foreign law, i.e. (1) non-establishment of the foreign law content, despite the implementation of all possible measures by the court, (2) infringement of public order, (3) force of the overriding mandatory provisions. Based on the analysis of the existing arbitration practice, the author come to the conclusion that the courts often refuse to apply foreign law and switch to the use of Russian legislation arbitrarily. Neither in practice, nor in the legislation the clear criteria for determining of “sufficiency” of the measures carried out by the court (in the context of article 14 (2) of the Russian Arbitration Procedural Code) are not formulated. The public order clause and application of the overriding mandatory provisions have extraordinary nature and should be used in exceptional cases.
Keywords: application of foreign law, establishment of foreign law content, public order, overriding mandatory provisions
Application of Foreign Law: Current Practice
The article examines current trends in the practice of application of foreign law by Russian commercial courts. The problems of establishing the content of foreign law and restrictions on its application were analyzed. The authors identify and analyze how the courts establish the content of foreign law, as well as why they refuse to apply it in cases prescribed by law.
Keywords: application of foreign law, establishment of foreign law content, norms of direct application, super-imperative norms, public policy
Influence of Russian procedural rules on the course of limitation period determined by foreign law
The author attempts to substantiate the existence of a problem of interaction and influence of the Russian procedural law upon the running of a limitation period determined by foreign substantive law chosen by the parties to the contract. The reason for the conflict is that Russian law ascribes the institution of limitation (and the rules for its calculation, interruption and suspension) to substantive law, while the rules of Russian procedural law, for example due to the existence of a specific procedural institution such as the pre-trial procedure, may affect the course of limitation. The author illustrates the problem on the example of recent practice of commercial courts and suggests possible ways to overcome it.
Keywords: foreign law, limitation period, limitation period, claim procedure, abandonment of claim
Organizational and Procedural Aspects of the Establishment of Foreign Law Content
The authors analyze problem issues of the procedure of foreign law content establishment and discover basic procedural and organizational obstacles to follow this procedure. The authors point out the necessity of a few measures that would allow to solve disputes with foreign element more effectively and to identify the correct interpretation of foreign legislation.
Keywords: foreign element, foreign law norms, expert opinion, request to authorized bodies, flexibility of procedure
Analytics: Open Tribune
The Order and Terms of Manufacturing of a Reasoned Decision in Cases Considered in Summary Proceedings
The author focuses on the (a) observance of basic principles and norms at administration of justice, (b) necessity of manufacturing of a reasoned judicial act if a case is considered according to the order of summary proceedings, © balance of interests of the parties and (d) formation of respectful attitude to the court.
Keywords: information technologies, judicial activity, summary proceedings, procedural terms, good faith, reasonableness, judicial authority
Unification of the Notion “Arbitration (Arbitral Proceedings)” as the Final Stage of the Arbitration Reform
The article is devoted to the actual problem of development of the Law on arbitration and the associated important problem of unification of the basic terminology in the field of arbitration proceedings. The author considers the following issues: the development of alternative forms of consideration and resolution of disputes in the Russian Federation; lack of differentiation in the interpretation of some basic legal concepts (“arbitration”, “arbitration procedure”, “arbitration court” etc.) in the doctrine and judicial practice; the legal nature of arbitration proceedings; norms of foreign legislation in matters of terminology; the need for changes in the Law on arbitration. The article’s logic and conclusions are supported with references to the laws, resolutions and reviews on the particular issues of the Russian legislation.
Keywords: development of the Law on arbitration, legal nature of the arbitration in the doctrine, legal nature of the arbitration in the judicial practice, alternative form of the legal conflicts resolution, non-distinction of the terms “arbitration” and “arbitration process”, analysis of the foreign legislation
Shaping the Authority of the Judiciary in Times of Mediatization of Society as a Field of Concern of the Council of Judges of the Russian Federation
The article discusses the reasons for the development, strategic and tactical aspects of information policy of the judiciary at the beginning of the XXI century. It is concluded that the Conceptions of 2001 and 2019 are an adequate answer to challenges of modern world and, correctly used, and effective tool to increase the authority of judicial system.
Keywords: court and media interaction, mediatization, Council of Judges of the Russian Federation, mass media, court, judicial system
Scientific Advisory Council
Minutes No. 20 of the Meeting of the Scientific Advisory Council of the Moscow District Commercial Court