Журнал ЗАКОН

The Minister of Justice of the Russian Federation Mr. Alexander Vladimirovich KONOVALOV answers the questions of the Editor-in-Chief of "The Law" Journal Mr. Yan Piskunov

On March 22, 2012 the Grand Chamber of the European Court of Human Rights delivered its final judgment in the case "Konstantin Markin v. Russia" which escalated the discussions regarding the correlation of over national and national elements in the legal systems of sovereign states, in particular the Russian Federation. The European Court established a violation of the Convention as the result of administration to the applicant of those provisions of the Russian legislation which were not recognized by the Constitutional Court as contradicting to the Constitution. On the one hand, the Russian Federation bears the responsibility to enforce the European Court's decisions. On the other hand, will in this particular case such enforcement actually mean recognition of the priority of the provisions of international conventions over the provisions of the Constitution? The President of the Constitutional Court of the RF Mr. V.D. Zorkin has earlier outlined the problem of the limits of the competence of the European Court, pointing out to the inadmissibility of interference of the Court with the authority of the national legislator and the national Constitutional control. How can the conflict of interpretations be solved, and does it contain any violations of the state’s sovereignty?

H.M.Lawyer Michael Swainston, member of the Bar Representation Committee of the Barristers' Chamber Lincoln's Inn answers the questions of the Editor-in-Chief of "The Law" Journal Mr. Yan Piskunov

Some participants of the Saint Petersburg International Legal Forum shared their opinion on the Forum and answered the questions of the Steering Committee.

Mr. Sergey Gennadievich PEPELYAEV, Managing Partner of the legal company "Pepelyaev Group", answers the questions of Chief Editor of "The Law" Journal Mr. Vladimir Rumak

Mr. Sergey Yurievich CHUCHA, President of the Moscow Arbitration Court, answers the questions of the Editor of "The Law" Journal Mr. Alexey Belousov

Prof. Alexander Lvovich MAKOVSKY, LLD, First Deputy Chairman of the Civil Legislation and Codification and Improvement Council under the President of the Russian Federation, honoured scientist of the RF, answers the questions of the Editor-in-Chief of "The Law" Journal Mr. Yan Piskunov

The article, based on several examples of contractual and corporate law institutions which were most acutely discussed at the final stage of elaboration of draft amendments to the Civil Code of the RF, proves that the major part of the amendments actively supported by the Russian business community and representatives of the Ministry of Economic Development of Russia, by the Working Group on creation of the International Financial Centre, the Non-Commercial Partnership "Assistance to Corporate Legislation Development", do not at all lie entirely in the domain of the English law but are known to most Continental legal systems. That is why modernization of the CC of the RF should rely upon recent foreign developments, and the civil legislation itself should get rid of the Soviet approach in regulation of property relations, which supposes excess paternalism and does not allow any freedom of entrepreneurship.

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Keywords: the Civil Code, civil legislation, corporate law, freedom of agreement, corporate agreement

The author analyzes the main characteristics of the modern model of Latin notariat based on its development history and foreign experience, and outlines the directions of the notary reform in the Russian Federation.

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Keywords: notary, Latin notariat, legal safety, notary profession characteristics, notary reform in Russia

The authors examine the legislative requirements to the defence and use of personal data placed in the Internet, as established in the Russian Federation. The article gives an analysis of legal problems of social networks and media as well as studies the foreign experience in protection and use of personal data of Internet users.

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Keywords: personal data, Internet, social networks and media, confidentiality policy

The article describes the main stages of development of the Russian anti-monopoly legislation. The author notes the particular role of the foreign experience in the process of development of the third anti-monopoly package as the closing stage of the anti-monopoly legislation reform in Russia, as well as the amendments brought in by this package.

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Keywords: anti-monopoly legislation reform, protection of competition, anti-monopoly package

The authors considered separate aspects of anti-monopoly regulation in the global economy in view of two different phenomena: internalization of regulation on the one part and preservation of national features on the other part. The first part of the article deals with the processes of globalization of anti-monopoly requirements in different countries, the second part discloses some factors influencing the unique and distinctive character of national systems.

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Keywords: anti-monopoly regulation, internationalization, unification, national features

The author analyzes pending issues of trans-national acceptance and enforcement of legislative acts and, based on the most recent changes in the international law and case law doctrine, outlines the problems on which depends the success of the initiatives for creation of an international legal field in the sphere of enforcement proceedings.

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Keywords: international civil process, enforcement proceedings, international treaties

This article written by an actively practising arbitrator deals with the main tendencies of international arbitration development, including both global tendencies (related to increasing number of disputes and the costs of their support) and purely Russian tendencies (related to the hostile approach of state courts to arbitration courts, ignoring by the judges of the legal stances of the Constitutional Court, escaping of disputes to foreign arbitration platforms).

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Keywords: МКАС, LCIA, ICC, Presidium of the Supreme Arbitration Court of the RF, certification of judgments, public order, arbitrability

The article considers the essence of the "collaborative law" concept which has appeared recently and is more and more actively being used for settlement of disputes abroad. This concept allows combining the techniques and mechanisms of both mediation and legal consulting in settlement of disputes and, according to the author, is a new word in the legal support of the parties' interests during legal conflicts.

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Keywords: collaborative law, ways of settling disputes, mediation

Fast development of international economic relations results in changes of legislative regulation, consequently, some legal categories and notions are changed as well. The article traces the changes of the notion "foreign investments". The general concept of foreign investments as investment of capital in one country by a subject of the other state has become so complicated and wide that in many cases it includes such relations between the parties where there are no capital investments while a national company is recognized as an investor.

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Keywords: Key words: foreign investments, capital investments, foreign investor, nationality of legal entities

The article analyzes the main provisions of the Hague Convention on the Civil Aspects of International Child Abduction: the objectives of the Convention, the conditions of its applicability, the notions of parental care, the place of residence of the child, unlawful transportation and abduction, the circumstances allowing to refuse to return the child as well as some other issues which the Russian lawyers are facing in connection to Russia's joining the Convention.

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Keywords: the Hague Convention on Child Abduction, international child abduction, rights and obligations of the parents, the right of the child for communication with his/her parents

The article provides different points of view of scientists and practising lawyers to judicial precedent in Russia. The author believes that judicial precedent is a phenomenon not alien to the Russian legal system, however it holds a particular position among the sources of the law. In this quality, judicial precedent must acquire "legal registration", that is why definite measures aimed at its practical use are required. At that, making amendments to the Constitution is not obligatory.

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Keywords: judicial practice, judicial precedent, legal system, sources of law, legal system reform

The author characterizes the types and specific features of corporate disputes in their historical aspect and singles them out into a separate category; in this connection the reasonableness for stipulating a special procedure for their settlement is underlined. The article examines the basic arguments of adversaries and adherers of arbitrability of corporate disputes, taking into consideration the materials of the vast Russian legal practice.

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Keywords: arbitrability, corporate disputes, commercial proceedings, arbitration procedure, arbitration clause, jurisdiction

The article considers particular problems related to administration of the regulations on pre-contract responsibility, from the point of view of comparative legal analysis. The author examines the features of the behaviour of the parties to negotiation process satisfying the "good faith" requirements. The analysis of the obligation of logical behaviour and the obligation to present information (providing informational openness) in the process of negotiations, taking into consideration the specific features of the Russian legal system.

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Keywords: pre-contractual responsibility, good faith, reasonable (grounded) expectations, the obligation of logical behaviour, the obligation of provision of information (provision of informational openness).

Within the framework of this article the existing legislation regarding recognition and compulsory enforcement of the decisions for taking provisional measures adopted in support of an international commercial arbitration is analyzed. The author defends the reasonableness and actual necessity of accepting the decisions of an international commercial arbitration court with regard to provisional measures equally with settlement of an arbitration dispute on its merits.

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Keywords: commercial arbitration, arbitration tribunal, recognition of commercial courts' decisions, provisional measures, compulsory enforcement

The article is dedicated to promissory estoppel in the Russian judicial practice. It also deals with the main characteristics of this legal institution in the general law countries as well as with the problems of its application by Russian courts.

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Keywords: promissory estoppel, judicial practice