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The chapter reviews the mechanism of foreign direct investment controls as implemented in Russia under the auspices of the Federal Law “On Foreign Investments in Russia” No. 160-FZ and Federal Law No. 57-FZ “On the procedure for making foreign investments in companies which are of strategic importance for ensuring the country’s defence and state security”. The author examines the definition of the foreign investor provided by the laws, analyzes the types of activities deemed of strategic importance for national defence and security and describes the thresholds triggering obligations of obtaining prior clearance of foreign investment transactions. A separate section of the chapter is devoted to the analysis of the procedures for obtaining clearances and the consequences of non-compliance. The paper also addresses other rules of the Russian legislation that restrict foreign direct investment to Russia. In the last section of the chapter, the author summarizes the experience of 10 years of application of foreign direct investment control mechanisms in Russia and poses questions on the possible implications of Russia’s experience for the EU Regulation establishing a framework for the screening of foreign direct investments into the Union.
The Author proposes to amend the arbitration procedure law by introducing a case management concept, according to which the type of proceedings shall be determined by the court after revealing the respondent’s position.
Dispositive actions of the parties (waiver of claim, recognition of the claim, settlement agreement) are subject to court control, namely verification of compliance with the law. Dispositive actions of the parties have different legal nature and therefore the approach of the court to such verification should be different. The plaintiff’s waiver of claim should be checked only for compliance with the procedural law, while the recognition of the claim and the settlement agreement — both procedural and material. The criteria for such differentiation are the features of the legal force of judicial acts, which are based on the dispositive actions of the parties. A check for compliance with procedural law presupposes that the court determines whether the party freely formed a desire to take an dispositive action, whether it was adequately expressed, whether the party understands the consequences of such dispositive action. Verification of compliance with the material law of the recognition of a claim or a settlement agreement concluded involves an ex officio determination by the court whether the transaction underlying the said dispositive actions is invalid, regardless of whether it can be considered null and void or voidability.
The author discourses on the question of how shall be realized a restitutional claim to a counterparty who himself is subject to bankruptcy proceedings: 1) the property that was alienated on grounds of an invalid transaction is excluded from the bankruptcy estate of the counterpart; or 2) the debtor, who effectively challenged a transaction, acquires a non-monetary claim to a debtor, that is transformed into a monetary claim. It is asserted in the article, that the answer to this question depends on whether to consider a transaction of a property transfer causal or abstract.
The author touches upon the issue of unequal rights of participants of shared construction during the bankruptcy of a builder. For instance, according to the literal interpretation of the rules on bankruptcy, the construction participants, who invested money into the cottage and apartment building in townhouses consisting of two blocks, are deprived of the right to include the requirement into the register of requirements for the premises transfer. In this regard, the author considers the concepts of an apartment house and a house of blocked building enshrined in law; determines whether the provisions of the Federal Law «On Insolvency (Bankruptcy)» (subparagraphs 3 and 3.1 of paragraph 1 of article 201.1) meet the requirements of the constitutional principle of equality; analyses the possible reasons for deviating from this principle; explores the present-day judicial practice on the inclusion into the register of requirements for the premises transfer the ones that concern cottages; specifies the conditions under which such requirements may be included in the register. The author concludes that the right to include the requirement into the register of requirements for the premises transfer should be also given to the construction participants who deposited money under the agreement on participation in shared construction. This agreement might concern: 1) flats in the apartment houses consisting of two blocks; 2) cottages under the condition that there is a unitary construction project; the general housing infrastructure is created; funds of construction participants are accumulated for building up the territory.
Training new lawyers with stronger knowledge and skills is a crucial part of the development of Russian law. Professional legal education has to consider current needs and changes in the intellectual profile of prospective students, responding quickly by revising their curricula. It is time to improve instructional methods and examination formats by moving from memorising current statutory provisions and oral exams to problem analysis and written exams. Therefore, law schools and universities should have freedom of choice as to what to teach in order to ensure transition from competition among university names and traditions to competition among degree programmes.
The author asserts that the legal nature of a bankruptcy administrator’s activities is investigation aimed at identifying the debtor’s assets and obligations; and determining the cause of insolvency. It is argued that the debtor’s director or former director could be forcefully taken to court in case of non-appearance.
The principle of justice of administrative proceedings as a
procedural principle should have its own specific content.
Without this content, the courts cannot apply this principle
in administrative cases. Comparison of the possible content
of the principle of justice with the principles of legality and
equality and analysis of the possibility of disclosure of the
principle of justice through the characteristics of consideration
(through the active role of the court and the distribution of the
burden of proof) and resolution (identification with the means
of checking the administrative discretion) of administrative
cases show that the principle of justice does not have its
procedural content and does not bear any meaning that allows
to apply it in administrative proceedings.
As a result of the unified essence of regulatory affairs as a logical operation
for comparing the meaning of several normative legal acts, disagreements
have yet to cease about whether it is possible to realize normal and constitutional
direct regulation according to unified rules for administrative legal
proceedings. There is a difference of the subject of legal action within the
framework of the named types of direct regulation that are mainly seen in
the method with the help of which they are realized. These differences define
the main legal-procedural characteristics of direct constitutional regulation,
among which is (1) the need to consider a case by the court in a wide
collegial bench of judges that are equal to each other, (2) the subsidiary
character of constitutional legal proceedings for this category of cases, and
(3) the need to appeal the decision of the court. These create specific characteristics
for legal proceedings for constitutional justice, specifically: the need
to introduce special requirements for candidates for judgeships and guarantees
for the status of judges presiding in constitutional legal proceedings,
and empowering the court apparatus with quasi-judicial functions. These
differences in the subject of legal action prove that there are no dogmatic,
political, or legal grounds for conclusions regarding the principal similarities
between constitutional and general direct regulation and on the possibility
for general jurisdiction courts to perform constitutional regulation.
The possibility of revising judicial acts that have entered into legal force and that differ from the positions
of the Constitutional Court is subject to the criterion developed in the practice of the Constitutional
Court, according to which judicial acts may be reviewed for new circumstances at the request of
persons who did not participate in the constitutional proceedings only if these judicial acts are not
executed or are partially executed. However, the content of this criterion has not yet been clarified.
What does execution mean in relation to a judicial act that does not require execution? The article
argues that the criterion of execution in this case should be interpreted independently: a judicial act
should be considered as non-executied (partially executed) only when, despite its entry into force, its
legal effect was not fully realized (the purpose constituting the content of the claim was not achieved).
Only one case falls under the criterion of the execution of judicial acts: when a judicial act that has
entered into force, based on the provision of the law, is subsequently recognized by the Constitutional
Court as unconstitutional directly or indirectly, the person is obliged to give, do, or provide something,
and this person who did not participate in the constitutional proceedings did not fulfill this obligation.
The Author differentiates lawsuit proceedings and proceedings on establishing of claims in bankruptcy cases in two dimensions: 1) the division of claims into register claims and current claims; 2) inside register claims the question of when such claims can be considered in lawsuit proceedings is analyzed. The article is aimed at systematization of existing court practice on the question.
The author grounds the thesis that satisfaction of several claims aimed at protection of a single subjective right doesn't contradict to the current legislation. If one of such judgements is fulfilled, the respondents on the other judgements can file anti-enforcement claims, which in the present situations can be realized by application of article 327 of the Arbitration Procedure Code of the Russian Federation.
The author on the example of a particular case, considered by the Arbitration Court of Saint-Petersburg and Leningradskaya Region, grounds the need of introducing into the Arbitration Procedure Code of Russian Federation a norm, providing the adoption of interim judgements, and proposes the draft of such a norm.
The author analyzes the norms of budget legislation on the provision of subsidies and budget investments to enterprises
and institutions, reveals their legal nature. Having come to the conclusion that there is no system of budget and legal
regulation on these issues, he sees the related imperfection of the tax legislation, which provides for the legal consequences of receiving subsidies and investments by VAT payers.
This article is devoted to the special feature’s legal regulation of the leasing relations in Russia and China. The purpose of this article is to research the problems connected with legislative approaches to the legal regulation of leasing relations in Russia and China.
It is stressed that the legal regulation of leasing relations is based on two directions. The first direction is the regulation of the status leasing subjects by establishing requirements for them. In particular, there are special features of regulation, which is based on the criteria of presence/ absence of foreign capital in the legal entity or the status of a subsidiary. The second direction of еру regulation is the establishment the contract’s models for the leasing relations and legislative requirements for the terms of these contracts.
It is reported that in China the legal regulation of leasing relations is establishing requirements for leasing companies and contractual forms. In Russia, the legislator focuses mainly on the contractual forms but it being discussed the introduction of a special regulation to the leasing companies.