ARCHIVE FOR 2017 RUSSIAN
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Сентябрь 2017
CONTENT
FREE TRIBUNE
Yuriy Fogelson Principle of Good Faith in Russian Judicial Practice It has long been discussed whether Russian Civil law needs to have the general obligation to behave
in good faith (the principle of good faith) included in the Civil Code (CC). In 2008, the Supreme
Arbitrazh (Commercial) Court of the Russian Federation proposed viewing bad faith behavior as a
form of abuse of rights. Based on the analysis of judicial practice, the article shows that this proposal
has generated broad interpretation of the abuse of rights, extension of the scope of its application on
various new types of relationship. In 2013, understanding of bad faith as a form of abuse of rights was
included in the CC along with the principle of good faith. This extended the abuse of the rights to new
types of relations; and the principle of good faith has been in very little demand in practice despite the
fact that in 2015 the Plenary Session of the Supreme Court of the Russian Federation detailed its use
to the courts. A comparison of the principle of good faith in the Supreme Court’s interpretation with
the understanding of bad faith as a form of abuse of rights points to their inconsistency. However,
the available tool and experience of its expansion into new types of relationships did not help resolve
the inconsistency and maintained the existing instrument. As a result, there are first signs of rather
arbitrary court control over different types of relations. This development was predicted at the
beginning of the 20th century. The article explains that it could have been avoided if the authors of the
CC Reform had undertaken an opportune review of relevant court decisions.
Keywords:
principle of good faith, abuse of rights, civil law reform, judicial statistics
Alexander Kuznetsov On Reforming the Rules on Takeover in Public Joint Stock Companies The article looks at the main directions of the reform of Chapter XI.1 (voluntary and mandatory
bids, squeeze-outs) of the Joint Stock Company Law. The author discusses the existing problems in
judicial practice and the need to revise some principal rules of this chapter. He also draws practical
conclusions and in the light of these conclusions critically reviews the draft amendments to the federal
law on this issue.
Keywords:
company law, voluntary bid, mandatory bid, takeover bid, squeeze-out
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Anna Arkhipova Judicial Interference in Insurance Contracts The article analyses practical cases where courts evaluate terms of insurance contracts that allow
insurers to avoid payment of insurance compensation. The author believes that the number of existing
trends is unsatisfactory. Similar provisions of insurance contracts may be either applied or ignored by
courts. Court acts are based on repeating arguments that elaborate on an unprecise interpretation
of law. In particular, the author finds erroneous the position of the courts whereby only articles 961,
963 and 964 of the Russian Civil Code may release the insurer from its payment obligations. In many
cases the courts find the controversial terms of insurance contracts void, although, as author aims to
prove, there is no legal ground for such conclusion. In many other cases courts simply ignore certain
provisions of insurance contracts without providing any legal argumentation at all — a practice that
is, according to author, not acceptable.
Russian law has a number of more appropriate mechanisms that allow the courts to protect insureds.
They include interpretation contra proferentem and the judicial control of unfair contract terms as per
article 428 of the Russian Civil Code. Under some circumstances insureds may contest controversial
terms of insurance contracts referring to substantial error (article 178 of Russian Civil Code). Courts
may also invoke the breach of the good faith principle.
However, in practice these instruments are still seldom applied. To improve the situation, the author
suggests that the insureds should take more initiative in contesting unfair contract terms. Author
also proposes to introduce into Russian legislation a rule whereby, prior to the conclusion of the
insurance contract, the insurer should inform the insured of all circumstances where no insurance
compensation will be payable. Where this obligation is not properly performed, it is proposed that the
insured should be entitled to contest the insurance contract.
Keywords:
insurance contract, unfair contract terms, ex post judicial control
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Mikhail Tserkovnikov On Tort Liability for a Double Sale The article analyses tortious liability of a seller who sells his property to two different purchasers. This
liability has recently been accepted by the Supreme Court of Russia in the context of real property.
Such a sale commences two chains of resales and ultimately a final purchaser in one of the chains will
gain nothing in exchange of his money. If his immediate seller cannot return the price, the purchaser
is allowed to recover the damages from the initial seller. The author argues that the Supreme Court
was right when allowed this type of direct claim because the initial seller is the main person to blame
for the problem. It is also suggested that one should not expect large number of such claims in the
future as the court outlined the conditions of the liability quite restrictively.
Keywords:
sale and purchase, double sale, tort, eviction
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