ARCHIVE FOR 2017 RUSSIAN
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Декабрь 2017
CONTENT
Sergey Budylin Lord Nottingem and Electronic Mail, or The Case about Signed E-mail Commentary to the Case Golden Ocean Group Ltd v. Salgaocar Mining Industries PVT Ltd & Anor
[2012] EWCA Civ. 265 (9 March 2012)
In English law, a guarantee must be in writing and signed by the guarantor. In 2012, the Court
of Appeal (England and Wales) held that the writing requirement was satisfied in the contract
of guarantee made up by exchange of emails which included the sender’s name. Thus, the Court
adapted the seventeenth century statute to the modern settings as it recognised the enforceability of
current commercial practice in relation to binding transactions.
Keywords:
guarantee, writing, email, electronic signature
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Vladislav Starzhenetskiy Recognition and Enforcement of International Investment Arbitration Awards and Jurisdictional Immunities of Foreign States Recognition and enforcement of international investment arbitration awards against a foreign state
in Russian courts raises a whole range of complex legal issues related to jurisdictional immunities
of foreign states. As a sui generis court proceeding, the recognition and enforcement of arbitral
award against a foreign state affects its immunity from both jurisdiction and execution. Entering
into arbitration agreement per se does not mean the state’s express consent to jurisdiction of
foreign courts in proceedings concerning recognition and enforcement of arbitral awards, although
this point of view is actively challenged by those who rely on the concept of «implied waiver» of
state immunity which is common in Western jurisdictions. The adoption of measures of constraint
against a foreign state in the execution of an arbitral award creates a significant risk to stability and
comity in international relations and requires a very cautious and balanced approach that should
also take into account alternative mechanisms for execution of international investment arbitration
awards.
Keywords:
jurisdictional immunities, recognition and enforcement of international arbitral awards, international investment arbitration
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Vadim Alexeev Continuous Connection to Land as the Single Characteristic of Real Estate» The article reviews provisions of the Russian Federation Supreme Court Plenary Resolution No. 25
«On Application by Courts of Certain Provisions of Section I, Part One of the Russian Federation Civil
Code» dated 23 June 2015 with Respect to Real Estate, and concludes that only natural properties
can be used as criteria for classifying items as real property. The author criticises the idea that an
item which is intended to be used for limited period of time should for this reason only be excluded
from the group of immovable things. The article also suggests that unauthorized constructions should
be regarded as immoveable things as well.
Keywords:
immoveable thing, continuous connection to land, unauthorised construction, action on invalidation of title, action on demolition of unauthorised construction
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Ekaterina Bibikova Contract in Favour of a Third Party in Russian and European Private Law: A Comparative Account Generally, a contract cannot confer rights on a third party. However, there are several legal
concepts that enable a person who is not a party to a contract to acquire the right stipulated for
that person by the contracting parties or to enforce the contract. Most of our present-day systems
of law implemented this idea in the concepts of representation, cession, agency and contracts in
favour of a third party. As to contracts in favour of a third party, historically Roman law did not
accept the idea because of various maxims that constituted serious obstacles to the enforcement
of rights stipulated in favour of a third party. Therefore, contracts in favour of third parties obtained
their legality in Europe in its modern sense only at the end of the 19th century. There are several
different models of contracts in favour of third parties adopted by different systems of law which
provide that a third party derives its rights directly from the contract itself (Germany, England)
or an explicit acceptance by the third party is needed (Netherlands, Russia). There are certain
differences between genuine and non-genuine third-party benefit contracts, and contracts with
protective effect for third parties that have practical implications for their application. It is material
to be aware of the structure of relationships dictated by contracts in favour of third parties, namely
cover ratio (Deckungsverhältnis), donation or currency (Zuwendungsverhältnis) and performance
(Vollzugsverhältnis). It is only recently that this concept has been acknowledged in Russia, but it is
rather narrow in its scope.
Keywords:
obligation, performance, third party rights clause, protective effect of contract
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Daria Petrova Frustration of Purpose as the Special Case of Frustration of a Contract in English Law The article analyses the frustration of purpose as the ground for application of the English doctrine
of frustration of contract. The author considers the Coronation cases that started the history of the
doctrine of frustration. Thus the author identifies the features of frustration of purpose in English law.
Relying on the actual English case law the article explores the potential scope of application for the
doctrine of frustration of purpose. In particular, the author analyses the cases of import and export
restrictions as well as the subsequent change to the real property regime in the light of the English
doctrine of frustration of contract.
Keywords:
doctrine of frustration of contract, contract, purpose of contract, frustration of purpose
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Artem Berlin Conclusion of Settlement Agreement under Influence of Substantial Error Based on Judgment of the RF Supreme Court Chamber on Economic Disputes
No. 309-ЭС15-3840, 14 September 2015
The article is devoted to two major issues: limits of the enforceability of settlement agreement,
and invalidity of settlement agreement concluded under the influence of party’s error in substantial
fact. First, based on the commented judgment and historical statutory review, the article proves
that the view that a court settlement agreement should be enforceable without further judgments is
wrong. Such enforceability does not necessarily follow from the nature of the settlement agreement.
Given this, the requirements to such agreements should be relaxed to include, for example, «frame
clauses». Second, the article analyzes existing approaches of developed jurisdictions to the issue of
challenging settlements concluded under the influence of error in factual background. It is suggested
that legal significance should be attached only to the facts that had been considered by the court at
trial hearing.
Keywords:
settlement agreement, enforceability, mistake
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