Oda Russian Commercial Law 2007-1
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RUSSIAN COMMERCIAL LAW
Russian Commercial Law
Second Edition
by
Hiroshi Oda
Sir Ernest Satow Professor of Japanese Law, University of London (University College), Professor of College d’Europe (Brugge), Attorney at Law (Japan)
Member of the ICC International Court of Arbitration
LEIDEN • BOSTON 2007
On the cover
Artist: Bazopiomp
Engraver: R. Watts
A perspective view of the borders of the Neva going up to the Rive between the Admiralty and the buildings of the Academy of Sciences at St. Petersburg, circa 1750
From the private collection of Hiroshi Oda
A CIP record for this book is available from the Library of Congress.
This book is printed on acid-free paper.
ISBN 978 90 04 16253 2
Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands.
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher.
Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center,
222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.
PRINTED IN THE NETHERLANDS
TABLE OF CONTENTS
|
ABBREVIATION OF RUSSIAN PERIODICALS |
xv |
|
|
FOREWORD TO THE SECOND EDITION |
xvii |
|
|
LIST OF TABLES |
xiii |
|
|
CHAPTER 1 – SOURCES OF LAW |
|
|
1 |
The Concept of the Law-Governed State |
1 |
|
2 |
The Federal Structure |
2 |
|
3 |
The Constitution |
5 |
|
4 |
Federal Law |
6 |
|
5 |
Law of the Constituent Entities |
8 |
|
6 |
Presidential Decrees |
12 |
|
7 |
Edicts of the Government |
13 |
|
8 |
Acts of Local Self-Governments |
14 |
|
9 |
Court Judgments |
14 |
|
10 |
Custom |
20 |
|
11 |
International Treaties |
20 |
|
12 |
Foreign Law |
22 |
|
|
CHAPTER 2 – THE SYSTEM OF SETTLING DISPUTES – INSTITUTIONS |
|
|
1 |
The Courts |
23 |
|
|
1) |
Historical Background |
23 |
|
2) |
Commercial Courts |
26 |
|
3) |
Ordinary Courts (Courts of General Jurisdiction) |
31 |
|
4) |
Jurisdiction of the Ordinary Court and the Commercial Court |
33 |
|
5) |
Jurisdiction of Russian Courts in Cross-Border Disputes |
36 |
|
6) |
Independence of the Courts and Integrity of the Judges |
37 |
2 |
International Commercial Arbitration |
40 |
|
|
1) |
Arbitration Law and Institutions in Russia |
40 |
|
2) |
Statutory Framework for the Enforcement of Arbitral Awards |
42 |
vi |
TABLE OF CONTENTS |
|
3) |
Judgments of the Ordinary Courts (1990–2002) |
46 |
|
4) |
Decisions of the Commercial Courts |
47 |
|
5) |
Decisions of the Supreme Commercial Court |
49 |
|
6) |
Arbitrability of Disputes |
50 |
3 |
The Procuracy |
54 |
|
4 |
Legal Professions |
55 |
|
|
1) |
Judges |
55 |
|
2) |
Advocates and Lawyers |
57 |
|
3) |
Notary Public |
61 |
|
CHAPTER 3 – BASIC PRINCIPLES AND RULES OF PRIVATE LAW |
|
|
1 |
Historical Background |
63 |
|
2 |
The Civil Code as the Primary Source of Private Law |
67 |
|
|
1) |
The Uni cation of Civil and Commercial Laws |
67 |
|
2) |
The Primacy of the Civil Code over other Laws in “Civil Law |
|
|
|
Relations” |
70 |
3 |
Basic Principles of Russian Private Law |
71 |
|
4 |
Participants of Civil Law Relations |
75 |
|
|
1) |
Individuals |
75 |
|
2) |
Juridical Persons |
76 |
|
3) |
The State as a Participant of Civil Law Relations |
80 |
5 |
Objects of Civil Law Rights |
83 |
|
6 |
Juristic Acts |
85 |
|
|
1) |
General |
85 |
|
2) |
Forms of Juristic Acts |
86 |
|
3) |
Defective Juristic Acts |
87 |
|
4) |
Primary Categories of Null and Void Juristic Acts |
90 |
|
5) |
Primary Categories of Voidable Juristic Acts |
96 |
|
6) |
Representation and Power of Attorney |
99 |
7 |
Periods of Time and Limitation Periods |
101 |
|
|
1) |
Periods of Time |
101 |
|
2) |
Prescription Period for Litigation |
102 |
|
CHAPTER 4 – COMPANY LAW |
|
|
1 |
History of the Russian Company Law |
105 |
|
2 |
Privatisation of State Enterprises |
110 |
|
3 |
Structure of Corporate Ownership in Russia |
117 |
|
4 |
Types of Companies |
121 |
|
5Common Rules on Joint Stock Companies and Limited Liability
Companies |
124 |
TABLE OF CONTENTS |
vii |
||
|
1) |
Liability of Shareholders (Participants) |
124 |
|
2) |
Liability of the Parent Company |
125 |
|
3) |
Registration |
128 |
|
4) |
Af liates of Foreign Companies |
131 |
6 |
Joint Stock Companies |
132 |
|
|
1) |
Procedure of Establishment |
132 |
|
2) |
Articles of Incorporation |
134 |
|
3) |
The Capital and Shares |
136 |
|
4) |
Bonds and other Securities |
148 |
|
5) |
Dividends |
148 |
|
6) |
Shareholders’Rights |
150 |
|
7) |
The Management Structure |
160 |
|
8) |
Audit – Audit committee (revizionnaia komissia) and the |
|
|
|
External Auditor |
183 |
|
9) |
Reorganisation of Companies |
186 |
7 |
The Russian Securities Market |
187 |
|
8 |
Limited Liability Companies |
191 |
|
|
1) |
The Procedure of Establishment |
192 |
|
2) |
Articles of Incorporation |
193 |
|
3) |
The Rights and Duties of the Members |
193 |
|
4) |
The Capital and Participatory Shares |
194 |
|
5) |
Dividends |
198 |
|
6) |
Issuing of Bonds and Securities |
198 |
|
7) |
Rights and Duties of Members |
199 |
|
8) |
Management Bodies |
199 |
|
9) |
Restraints on the Power of the Executive Bodies |
201 |
|
10) |
Liability of Directors and Executive Of cers |
203 |
|
11) Audit |
203 |
|
|
CHAPTER 5 – INSOLVENCY LAW |
|
|
1 |
Historical Background |
205 |
|
2 |
The Law on Bankruptcy |
208 |
|
3 |
The Procedure |
211 |
|
|
1) |
Initiation of the Procedure |
211 |
|
2) |
Administrators |
212 |
|
3) |
Observation (nabliudenie) |
214 |
|
4) |
Financial Restoration ( nansovoe ozdorovlenie) |
216 |
|
5) |
External Administration |
218 |
|
6) |
Bankruptcy (konkurs) |
223 |
|
7) |
Amicable Settlement |
227 |
|
8) |
Subsidiary Liability |
228 |
viii |
TABLE OF CONTENTS |
|
CHAPTER 6 – GENERAL RULES OF THE LAW OF OBLIGATIONS |
|
|
1 |
General |
229 |
|
2 |
Performance of Obligation |
229 |
|
|
1) |
Manner of Performance |
229 |
|
2) |
Time of Performance |
230 |
|
3) |
Place of Performance |
231 |
|
4) |
Currency of Performance |
231 |
|
5) |
Performance by Deposit |
232 |
|
6) |
Counter-Performance |
232 |
3 |
Obligation with Multiple Debtors/Creditors |
233 |
|
4 |
Change of the Parties |
234 |
|
|
1) |
Assignment of Claims |
234 |
|
2) |
Assumption of Debt |
235 |
5 |
Termination of Obligation |
235 |
|
|
1) |
General |
235 |
|
2) |
Substitute Performance |
236 |
|
3) |
Set-off |
236 |
|
4) |
Novation |
237 |
|
5) |
Impossibility of Performance |
237 |
6 |
Liability for the Breach of Obligations |
238 |
|
|
CHAPTER 7 – MEANS OF SECURING OBLIGATIONS |
|
|
1 |
General |
245 |
|
2 |
Real Security Rights (Pledge) |
246 |
|
|
1) |
The Concept |
246 |
|
2) |
The Laws |
248 |
|
3) |
Objects of Pledge |
248 |
|
4) |
Form of Contracts and Registration |
251 |
|
5) |
Multiple Pledges |
253 |
|
6) |
Transfer of Collaterals |
255 |
|
7) |
Transfer of the Right of the Pledgee |
256 |
|
8) |
Enforcement of Real Security Rights |
256 |
|
9) |
Real Security Rights and Bankruptcy Procedure |
260 |
3 |
Atypical Security Rights |
261 |
|
4 |
Suretyship and Bank Guarantee |
266 |
|
5 |
Other Means of Securing Performance of Obligation |
269 |
|
|
1) |
Penalty |
269 |
|
2) |
Withholding of the Object |
269 |
|
3) |
Earnest Money |
270 |
TABLE OF CONTENTS |
ix |
||
|
CHAPTER 8 – CONTRACT LAW |
|
|
1 |
General |
271 |
|
2 |
Freedom of Contract |
271 |
|
3 |
Conclusion of a Contract |
273 |
|
4 |
Interpretation of Contracts |
274 |
|
5 |
Revision and Rescission of a Contract |
276 |
|
6 |
Individual Contracts |
280 |
|
|
1) |
General |
280 |
|
2) |
Contract of Sale |
280 |
|
3) |
Contract of Lease |
288 |
|
4) |
Commission, Agency, and Mandate Contracts |
293 |
|
5) |
Contracts Related to Banking |
297 |
|
6) |
Concession Contracts |
302 |
|
7) |
Joint Venture Contracts |
307 |
|
CHAPTER 9 – PROPERTYAND LAND LAW |
|
|
1 |
Ownership Right and other Real Rights |
309 |
|
2 |
The Right of Ownership |
312 |
|
|
1) |
The Content of the Right of Ownership |
312 |
|
2) |
Owners |
313 |
|
3) |
Acquisition and Termination of the Right of Ownership |
316 |
|
4) |
Joint Ownership |
320 |
3The Right of Economic Management and Operational
|
Administration |
321 |
|
4 |
Land Law |
322 |
|
|
1) |
The Abolition of the State Ownership of Land |
322 |
|
2) |
Legal Framework of the Land Law |
325 |
|
3) |
The Land Code |
327 |
|
4) |
Rights on Land other than Ownership |
330 |
|
5) |
Land and Buildings |
331 |
5 |
Registration of the Right of Ownership and other Real Rights |
331 |
|
|
CHAPTER 10 – TORT (OBLIGATIONS ARISING FROM CAUSING OF |
|
|
|
HARM) AND UNJUST ENRICHMENT |
|
|
1 |
General Rules of Tort |
339 |
|
2 |
Special Rules |
345 |
|
|
1) |
Liability for Damage Caused by a Minor Below 14 Years |
|
|
|
of Age |
345 |
|
2) |
Liability for Damage Caused by a Minor Between 14 and 18 |
|
|
|
Years of Age |
345 |