Иностранный язык учебный год 2022-23 / Иностранный язык в правоведении / КАФЕДРАЛЬНЫЙ3

The IPR Court of the Russian Federation

The IPR Court was ..1.. by the Federal constitutional law of 6 December 2011 № 4-FKZ that amended the Federal constitutional law “On the Judicial System of the Russian Federation”, and the Federal constitutional law “On Commercial Courts of the Russian Federation”.

According to Article 26.1 of the ..2.. Federal constitutional law of 1 December 1996 № 1-FKZ “On the Judicial System of the Russian Federation” the court for intellectual property rights is a specialized commercial court that has jurisdiction to adjudicate cases related to the protection of intellectual property rights as a court of first instance and cassation instance.

According to Article 43.3 of the amended Federal constitutional law of 28 April 1995 № 1-FKZ “On Commercial Courts in the Russian Federation”, as a court of first instance, the IPR Court will in particular ..3.. the following cases:

I. Appeals against legal regulations of the Russian Patent O ce related to intellectual property rights.

II. Disputes concerning the registration or cancellation of intellectual property rights (except copyrights and related rights) including:

•appeals against the decisions, actions or a failure to act of the Russian Patent O ce;

•appeals against decisions of the Federal Antimonopoly Service on recognition of actions concerning the acquisition of exclusive rights of means of individualisation of ..4.. entities, goods, works, services and enterprises as acts of unfair competition;

•establishment of the patent ..5..;

•declaration of invalidity of a patent on an invention, industrial design, unless other proceedings in consideration of invalidity are stipulated by the Federal Law;

•cancellation of a trademark due to non-use.

The IP Court will exclusively consider the above listed cases regardless whether the parties involved in a dispute are legal entities, individual entrepreneurs or ..6.. persons1.

Exercise 3. Read the following text. Use the words in the box to the right of the text to form one word that fits in the gap. Finally, in pairs say what you have learned about the reformed Russian Supreme Court.

Russian Law No. 2-FKZ of 5 February 2014 “On the Russian High Court and the Russian Public Prosecution O ce”

(the “Law”) provides for the ..1.. of the Russian Supreme 1. liquidate Arbitrazh Court (the “SAC”) and vesting its powers under

the auspices of the new Russian High Court (the “HC”).

1 http://www.ip-watch.org/2013/03/01/russia-establishes-specialised-court-for- intellectual-property-rights.

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*It should be noted that the name “arbitrazhniy court” is misleading as it does not relate to arbitration tribunals but is inherited from the Soviet Law. In the USSR any di erences between state enterprises could be settled by the State Arbitrazh, which was a quasijudicial governmental body. Today the term “arbitrazhniy court” relates to a State court that is competent to hear disputes between commercial entities.

Exercise 4. Read the following text. Choose the best word to fill in each gap. Finally say what you have learned about the mediation procedure in the Russian Federation.

Alternative Dispute Resolution and Mediation

The “Law on Mediation” regulates dispute resolution procedures involving the ..1.. of a mediator on the basis of voluntary consent of the parties. The mediation procedure may be ..2.. to civil (including disputes arising out of economic relations), labor (except for collective employment disputes) and family law disputes. However mediation is not possible in the above-named disputes if they ..3.. public interests or the rights and legitimate interests of third parties that are not participating in the mediation procedure.

(Doing Business in Russia )

Key terms and Use of English

Exercise 5. Match the expressions (1–4) with the definitions (a-d).

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Exercise 6. Suggest English equivalents of the following word partnerships.

мировой судья; субъект РФ; надзорная инстанция; предпринимательская деятельность; недействительность патента; арбитражный суд; Федеральное Собрание; принимать закон; споры по экономическим вопросам; назначать судей; конституционность нормативных актов; давать разъяснения; имущественные споры; защита прав интеллектуальной собственности; добровольное согласие сторон; трудовые споры

Exercise 7. Complete the sentences with prepositions. Translate them.

1.Most claims subject ..1.. courts of general jurisdiction are heard ..2.. first instance ..3.. a district court.

2.The court of appeal reviews a judgment ..4.. the grounds stated in the appeal.

3.New evidence is accepted only when the party succeeds ..5.. proving it was unable to present such evidence to the trial court for reasons ..6.. its control.

4.The rulings of the court of appeal become e ective immediately ..7.. issuance.

5.The cassation court may set ..8.. or modify court resolutions only when it finds material violations of substantive or procedural law rules that have a ected the outcome of the case.

6...9.. contrast ..10.. courts of general jurisdiction, arbitrazh courts tend

..11.. rely primarily ..12.. documentary evidence rather than ..13.. witness statements.

7.Judgments of the Russian courts of general jurisdiction and of Russian arbitrazh courts are enforced ..14.. the state baili service.

Exercise 8. Render the sentences into English.

1.Суд общей юрисдикции — это суд, осуществляющий правосудие по гражданским, уголовным делам и делам, возникающим из административных правонарушений, а также иным делам, подсудным судам общей юрисдикции.

2.5 февраля 2014 года Президент РФ подписал закон, упраздняющий Высший Арбитражный Суд РФ.

3.В юридическом сообществе мнения по поводу реформирования судебной системы разделились. Одни считают, что это шаг к упразднению арбитражных судов в целом. Другие поддерживают изменения, надеясь, что объединение высших судебных органов наконец-то внесет единообразие в решение спорных вопросов судебной практики.

4.В обосновании необходимости принятия этой поправки к Конституции РФ указано, что реорганизация судебной системы позволит обеспечить единство подходов при отправлении правосудия как в отношении граждан, так и в отношении юридических лиц; исключить возможность отказа в судебной защите в случае спора о подведомствен-

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ности дела; установить общие правила организации судопроизводства; добиться единообразия в судебной практике.

5.Несмотря на то что суды общей юрисдикции и арбитражные суды часто руководствуются одними и теми же нормами материального права, случается, что подход к решению определенных вопросов у них различен.

6.Вновь образованный суд осуществляет судебный надзор за деятельностью судов, рассматривая подведомственные ему дела в качестве суда надзорной инстанции, а также в пределах своей компетенции в качестве суда апелляционной и кассационной инстанции.

7.В целях обеспечения единообразного применения законодательства Верховный Суд РФ дает судам разъяснения по вопросам судебной практики на основе ее изучения и обобщения и осуществляет иные полномочия, предусмотренные ч. 7 ст. 2 Закона № 3-ФКЗ «О Верховном Суде РФ».

Speaking

Exercise 9. Choose a topic related to the Judicial System of the Russian Federation and in pairs talk about it at length with follow-up questions. Practise using linkers to build a topic (See Annex 1).

Namely; for example (instance); as well as; moreover; besides; in brief; in a nutshell; in short; firstly; lastly; because; since; as; due to the fact that; even though; as a result; in practice, etc.

1.Merger of Russia’s high courts: the pros and cons.

2.Commercial courts: a twenty-first century necessity or ine cacy.

Exercise 10. Answer the competency-based questions.

1.Will the merger of the Supreme Court of the Russian Federation and the Supreme Commercial Court of the Russian Federation help to promote the quality of administering justice?

2.Why do foreign investors prefer resolving cases in the commercial courts of the Russian Federation to settling their disputes in the courts of general jurisdiction?

Exercise 11. Make a full mindmap of the Judicial system of the Russian Federation 2016 and prepare a presentation on an aspect of the Background of the IPR Court of the Russian Federation.

Summarizing

Exercise 12. Read the article about class actions in Russia and summarize it reducing to 25%.

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When America’s meat is Russia’s poison

Amendments to the Code of Arbitration Procedure that came into e ect introduce class actions, the legal technique controversial even in the United States, the country of its origin.

The changes were supposed to give a sword to the small and weak. Instead, they handed a shield to the strong and powerful. Yet, the peculiarities of the law — so paradoxical to be anything but a typing error — may trigger massive abuses and turn the resolution of corporate disputes into a mess.

In an ordinary suit each litigant is a party in his own right. In a class action, one person, a representative plainti , starts a legal battle on behalf of other persons, those who have — or might have — a claim for the same or similar wrong. In the eyes of law only the representative plainti is a party. The others are the members of a ‘class’: they are bound by the outcome of the litigation even though they do not, strictly speaking, participate in the proceedings.

The peculiarities of the law are too paradoxical to be anything but a typing error.

By allowing one person to sue for an entire group, sometimes thousands of people, the law — it is often argued — opens the door to the actions that otherwise would have been too small and uneconomical to pursue by individual claimants. Thus, one of the most contentious legal techniques is favoured for lowering barriers to justice, and for the simple and efficient mechanism of dealing with a large number of similar claims. For the government, on the other hand, the class action laws are a way to dump the load of regulation from its shoulders onto the maze of private litigations. Yet, on the Russian soil the perceived benefits are being paid for by stretching the conventional view of a fair trial. The law appears to substitute the murky waters of defining who and how may decide other people’s rights for the rules of procedure.

Do it the Russian way

What a representative plainti does a ects the members of a class. An important question, then, is how a claimant can get into the class, or stay out and proceed with their personal battle.

International practice revolves around two basic choices, ‘opt in’ or ‘opt out’: should potential class members be automatically included in the class but given an opportunity to leave the proceeding, or should they be required to take a positive step in order to be included in the litigation?

The choices vary from country to country. The ‘opt out’ solution, for instance, can be selected for it reduces social barriers to justice for vulnerable class members: they are automatically included but can leave and bring in their own actions. The ‘opt in’ approach can be justified if the intention is that only those are to be bound who want to be and to this e ect have shown some minimal interest.

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Whatever choice is adopted by the national legislation, the fundamental right of an individual claimant to stay out and pursue his or her own action is recognised and respected.

It appears that Russian law follows the ‘opt in’ way. A closer look, however, suggests that an individual plainti does not have a choice: once a class action started an individual claimant is not allowed to file a separate claim relating to the same defendant but has to join the class action and throw himself on mercy of a representative plainti .

Moreover, article 225.16 of the Сode of Arbitration Procedure, as in force from October 21, does not allow an individual claimant ‘who did not use his or her right to join the class’ to pursue a legal action if a similar claim to the same defendant had been resolved as a class action. This is so incredible, so against the Constitution and the common sense, that it cannot be true. But it is.

Blind trade

In the heart of a class action lies the delegation of rights by multiple claimants to a representative plainti ; class members typically play a small role in the litigation. This ‘clientless’ litigation may lead to open or discrete abuses of law.

The representative plainti is self-proposed and, in essence, self-appointed. It falls to the class members, who usually get involved in the proceeding at a later stage when the action has started and the representative has taken his post, to prove that he cannot represent their interests adequately and fairly.

It is not that class members can’t dispose of the representative they don’t like but doing so is not easy. The law is remarkably brusque on the grounds for dismissal. The plainti , it says, can be discharged by court on the application of the majority of class members if it is proven that ‘he or she grossly neglects his or her duties or is not capable to represent the interests of the class’.

Essentially, the law has traded good old rules of court representation for a wishy-washy jabber that might work — complemented by the mass of precedents — in the USA but in Russia it would mean an unbridled discretion of a judge.

So far, the laws that left too much to a judge to decide have not worked. Where judges have a wide discretion, in appointing a receiver or corporate governance disputes for example, the level of corruption is somewhat too high.

It is remarkable that conflict of interest does not appear as a reason for discharge of a representative plainti . Perhaps, it has something to do with a certain weakness of Russian law on a liation.

Why

Class actions in Russia have limited scope: disputes from commercial relations, including those on corporate governance or those that originate from capital market transactions, can be heard under the new regime. The claims of general public, on the other hand, cannot. Social justice, therefore, is hardly the real beneficiary of the law.

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It is not possible to say how many class actions will be considered in Russia. Yet, keeping in mind international statistics and underdevelopment of the national stock market, there won’t be many. The e ect from the judicial economy, therefore, will be minimal and cannot excuse the door the law opens to abuse.

Although the adoption of western legal institutions is usually enriching, sometimes what is good for Americans, is not so for Russians1.

Writing

Exercise 13. Write a mini-composition on the topic Russian Courts in Practice developing the sentences below into a text. Use appropriate linking words to help structure a piece (See Annex I).

particularly (focusing); even more so (contrasting); on the contrary (contrasting); on top of that (adding information); what is more (adding information); more/most importantly (ordering points); to some extent (generalizing); basically (generalizing); by and large (generalizing); mostly (generalizing); in other words (generalizing)

Russian courts in practice

Specific features / Russian court system / be mentioned. Obvious trait / among judges / tendency / contractual provision / literally. Court proceedings / other countries / tendency / like a chess game / in Russia / to send briefs / three days / hearing. Distribution of briefs / not common. Judges / not to take into account / arguments / not easy to explain. Litigation / other regions / Moscow / legal professionalism / level. Tendency / formalistic arguments / non-legal considerations / decisions.

1 http://russianlawonline.com/business.

Unit 3

Establishing a Legal Presence in Russia

Discussion

1. Here is a “word cloud” that comprises the words that will frequently appear in the texts below. What are these words associated with? Generate ideas about each word.

2.What kind of person do you have to be to engage in business?

3.What di culties do you expect to face in running your own business?

4.What are the advantages and disadvantages of working for someone else?

5.Do you think specializing in corporate law may create good career opportunities? Why? Why not?

6.Would you like to be an in-house lawyer? Why? Why not?

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Legal terms

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