ARCHIVE FOR 2018 RUSSIAN
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Июль 2018
CONTENT
Sergey Budylin Damage for Breach of Confidentiality, or the Fall of the Arctic Fox Project Commentary on the Case CF Partners (UK) LLP v. Barclays Bank Plc & Anor [2014] EWHC 3049 (Ch)
In this case of the High Court of England and Wales a bank received some confidential information
from a client. This happened during negotiations on providing a credit to purchase shares in
a company that was, according to the client, seriously underestimated. The negotiations were
unsuccessful as the credit was not provided and the purchase did not go through. Soon after that,
however, the bank itself purchased the supposed target. The would be borrower sued the bank
for the breach of confidentiality agreement. The pursuant could not prove that they have a clear
confidentiality agreement with the bank. Neither could he show any damages caused to him by the
bank’s purchasing of the company. Despite this the court eventually found that the bank violated the
client’s rights when it used for its own purposes the information entrusted to it by the client. The judge
estimated the damages by supposing what amount the bank would have paid for lifting the ban on
the use of the information if it had freely negotiated this amount with the client.
Keywords:
confidentiality agreement, England, carbon credits, damages
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Elena Ostanina The Case of a Common Fence German Federal Supreme Court Judgment V ZR 42/17 of 20 October 2017 and Case Commentary
The right to use an object standing between adjacent land plots is the most typical case of neighborhood
rights. In this case, one neighbor replaced a low metal fence with a high, non-transparent wooden
fence. Despite the lack of information about who and when raised the disputed fence, the German
Supreme Court applied a presumption and ordered the defendant to demolish the fence.
Keywords:
neighborhood rights, ownership, land plot, lease
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Kirill Nam Development of the Good Faith Principle. Modern Stage. Internal Systematics Russian civil law has recently introduced the good faith principle. However, the Russian Civil Code
contains some other legal institutes that have once been developed by German law from the same
principle. Those institutes, as well as the good faith principle itself, are new to Russian law. The lack
of research in this area makes it significantly harder to apply the good faith principle and related rules.
The article considers modern German approach to this principle and explains its system. In Germany,
this principle is widely applied by courts and has a solid theoretical background. This makes the
German experience priceless for Russian scholars and lawyers. It should help them to understand
this difficult principle in all its aspects and have a systematic knowledge of it and the rules that are
connected to it.
Keywords:
the good faith principle, Treu und Glauben, functions and system of the good faith principle
Konstantin Sklovskiy, Vladislav Kostko On the Concept of a Thing. Money. Real Estate According to Roman tradition a thing usually means body, tangible object. Also in modern civil law
legal experts talk about natural object. This article shows another understanding, where thing is not
natural but cultural object. It is the embodiment of idea, all its basic characteristics are social. Authors
rely on Arendt’s work and reveal thing as purely human creation which is opposed to nature. Also a
thing can be a commodity just in some cases, this is its accidental quality. All things are material but
they should not always be regarded as a body. Substantial characteristic of a thing — to be subjectmatter
of possession.
Based on this understanding, the authors discuss the problem of money. It is submitted that digital
currency cannot be regarded as money since no one can disturb or take away possession of digital
currency. It could acquire characteristics of money when special means appear by which it will be
possible to take possession of digital currency.
The article also analyses the nature of a land plot. It is argued that it is not a natural object.
Keywords:
thing, possession, digital currency, land plot, money
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Andrey Rybalov Iura in re: numerus clausus vs numerus apertus The article considers different views on the list of property rights in various legal systems. Some of
them adhere to the numerus clausus principle whilst others prefer to see their list opened. Although
numerus clausus is a traditional approach to a list of proprietary rights and is even thought of as
their essential feature, the article shows that certain national legal systems take a different path. It
challenges some arguments in support the numerus clausus principle and draws attention to the
discussions on the list of property rights in the modern private law scholarship. It is submitted that one
should also consider what way is to be taken by property law and registration system in Russia. The
article argues that any burdens on the right of ownership should be registered.
Keywords:
numerus clausus, numerus apertus, property rights, registration of property rights
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Vladislav Starzhenetskiy Parallel Imports in Russia: Differentiation or Erosion of Liability for IP Rights’ Infringements? Commentary to the Ruling of the Constitutional Court of the Russian Federation
No. 8-П, 13 February 2018
On February 13, 2018, the Constitutional Court of the Russian Federation declared judgment No. 8-П
«On Constitutionality of the Provisions of paragraph 4 of Article 1252, Article 1487 and paragraphs 1,
2 and 4 of Article 1515 of the Civil Code of the Russian Federation in connection with complaint of the
limited liability company «PAG», which in many respects is crucial for parallel importers operating on
the Russian market. In addition to the question of the constitutionality of parallel imports per se, the
Constitutional Court of the Russian Federation touched on several other very important legal topics,
including abuse of exclusive rights, individualization of liability for IP infringements, and expressed
its attitude towards sanctions imposed by foreign states against Russia. The Constitutional Court
confirmed that national exhaustion rule prescribed by the Civil Code of the Russian Federation is
not contrary to the Constitution. However, courts must differentiate civil liability when they deal with
counterfeited goods and parallel imports due to the fact that parallel importation does not represent
equal threat to the right holders compared to counterfeiting. Moreover, it was stressed that in cases
of abuse of rights, bad faith behavior or refusal to supply goods to Russia because of compliance with
sanctions regime against Russia courts are authorized to deny claims of the right holders to prevent
parallel imports.
Keywords:
parallel imports, exhaustion of IP rights, civil liability, abuse of rights, economic sanctions
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