Oda Russian Commercial Law 2007-1
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482 |
PRIVATE INTERNATIONAL LAW |
the relationship between the parties should be subject to Russian law. Absence of the expression of will of the parties means that the choice of the applicable law was left to the court. In such cases, the court is guided by the con ict of law rules of its own law – Russian law. Thus, the court applied the Fundamental Principles of Civil Legislation which was in force at that time and applied Belgian law, which was the law of the seller’s country.18
(2)Applicable Law in the Absence of the Agreement of the Parties
In the absence of agreement on the governing law between the parties, the law of the country with which the contract is most closely connected is applied. This means the law of the country where “the party which performs the act with the decisive meaning for the contract” is domiciled, or has the basis of business, unless otherwise provided by law, or unless another conclusion emerges from the terms or the content of the contract, or the entire circumstances of the case (Art.1211, paras.1 and 2).
“The party which performs the contract, and has the decisive meaning for the contract” varies. The Code has a list of such parties for basic types of contracts (ibid., para.3):
i)contracts of sale – the seller;
ii)contracts of gift – the donor;
iii)contracts of lease – the lessor;
iv)contracts of gratuitous use – the lender;
v)work contracts – the owner;
vi)contracts of carriage – the carrier;
vii)contracts of freight forwarding – the freight forwarder;
viii)contracts of credit – the creditor;
ix)contracts of nancing under assignment of claims – the nancial agent;
x)contracts of bank deposit – the bank;
xi)contracts of storage – the bailee;
xii)insurance contracts – the insurer;
xiii)contracts of mandate – the agent;
xiv)commission contracts – the commissionaire;
xv)agency contracts – the agent;
xvi)contracts of commercial concession (franchising) – the franchisee;
xvii)contracts of pledge – the pledgor;
xviii)contracts of suretyship – the surety;
xix)licensing contracts – the licensor.
18 Item 5, Information Letter, supra.
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483 |
As for “the law of the country with which the contract is most closely connected”, the following rules apply (ibid., para.4):
i)design and construction contracts – the law of the country where the object of the work is located:
ii)contracts of simple partnership (joint venture contracts) – the law of the country where the basic activities are performed;
iii)contracts concluded on the basis of tender, auction, or in the exchange – the law of the country where the tender or auction took place, or where the exchange is located.
(3)Consumer Contracts
In cases where a party to a contract is an individual who uses, obtains, or orders movables, or has such an intention for personal, family, or domestic purposes unrelated to entrepreneurial activities, the mandatory norms of the law of the country where the consumer is domiciled are applied, if e.g. i) the conclusion of the contract was preceded by an offer made to the consumer or an advertisement in that country and the consumer performed acts needed for the conclusion of the contract in this country, or ii) the opposite party or the agent of the opposite party received the order of the consumer in this country (Art.1212, para.1).
(4)Contracts regarding Immovables
In the absence of an agreement on the governing law between the parties, the law of the country which is most closely connected to the contract is applied. Unless otherwise provided by law, or unless another conclusion emerges from the terms or the content of the contract, or the entire circumstances of the case, such a law is deemed to be the law where the given immovable is located (Art.1213, para.1).
Contracts concerning pieces of land, acreage of sub-soil resources, divided water resources and other immovables are governed by Russian law.
(5)Assignment of Claims
The law applicable to the agreement between the previous and the new creditors is determined in accordance with the above general rules of the choice of law (Art.1216, para.1 and Art.1211, paras.1 and 2). Problems of the permissibility of assignment, the relationship between the new creditor and the debtor, the presentation of the claim to the debtor, and the appropriate performance by the debtor are governed by the law which is applicable to the claim that is the object of assignment (Art.1216, para.2).
484 |
PRIVATE INTERNATIONAL LAW |
(6)Interests
Grounds for charging interest, the manner of calculation and the amount of interest for monetary obligations are determined by the law of the country which is applicable to the obligation (Art.1218).
(7)Matters to be Determined by the Chosen Law
When the law of a particular country has been chosen or determined to be applied to a contract, this law speci cally covers the following matters (Art.1215):
i)interpretation of the contract;
ii)rights and obligations of the parties;
iii)performance of the contract;
iv)outcome of non-performance or inappropriate performance of the contract;
v)termination of the contract;
vi)outcome of the voidness of the contract.
4)Obligations arising from the Causing of Harm (Tort)
To obligations arising from tort, the law of the country in which the tortious act was carried out, or the circumstances which gave rise to the claim for compensation took place, is applied. If, as a result of such an act or such circumstances, the damage emerged in another country, the law of that country may be applied, provided that the tortfeasor has foreseen or should have foreseen that the damage would emerge in another country (Art.1219, para.1).
Concerning product liability, in claims for compensation based upon defective products, works and services, the victim may choose from the law of the country where the producer or the seller resides or has the basic place of business, the country where the victim resides, or the country where the work was performed, the service was provided or the product was obtained (Art.1221, para.1).
5)Unjust Enrichment
The law of the country in which unjust enrichment took place is applicable to obligations based upon unjust enrichment. However, parties may agree to have the lex fori applied.
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485 |
6)Competition Law
Whether this is a problem of private international law or not is questionable, but there is a provision to the effect that the law of the country whose market was penetrated by unjust competition is applicable, as a rule, to obligations arising from such relations (Art.1222).
INDEX
A |
|
|
Abuse of Rights |
73, 74, 268, 271, 334 |
|
Accounting Standards |
185, 381 |
|
Advocates and Lawyers |
11, 57-61, 229, |
|
230, 310, 466 |
|
|
Applicable Law |
42, 474-476, 479, 481, |
|
482 |
|
|
Arbitration, International Commercial 20, 26-28, 30, 40-53, 74, 81, 90, 209, 211, 230, 234, 235, 272, 383, 396, 449, 456, 457, 467, 468, 474, 476, 477, 478, 480, 482
ARKO |
361, 377, 378 |
|
Auction |
112, 113, 115-117, 142, 206, 207, |
|
221-223, 225, 250, 259, 260, 317, 318, |
||
324, 329, 382, 390-393, 483 |
||
Audit |
119, 124, 135, 150, 151, 153, 154, |
|
161-163, 166-169, 180, 183-185, 200 |
||
Audit chamber |
411, 412 |
|
B |
|
|
Bank Guarantee |
73, 217, 237, 243, 266, |
|
268, 363
Banking Supervision 371-373
C
Central Bank 127, 227, 231, 243, 250, 269, 300, 356-358, 360-368, 370-378,
436, 445 |
|
Civil Code, General |
63-71 |
Commercial Banks |
73, 251, 265, 297, |
355-358 |
|
Commercial Courts |
24, 26-31, 33-37, 45, |
47-52, 56, 375, 383, 450, 462-464 Commercial Organisations 39, 72, 76, 80,
83, 107, 121, 122, 135, 259, 272, 302, 324, 346, 367
Competition/Competition Law 46, 73, 74, 130, 146, 186, 187, 258, 341, 485
Constitution 1-13, 16, 18, 21, 25, 28, 38, 39, 56, 72, 74, 75, 306, 312-314, 324-328, 362-364, 379, 380, 389, 404, 405, 408, 427-429, 438, 453, 458, 459, 465
Constitutional Court 2, 3, 5, 7-9, 13, 14, 19, 25, 29, 39, 56, 103, 212, 219, 317, 328, 380, 427, 428, 437, 438, 455
Contracts |
|
|
|
|
|
|
Conclusion of |
273-274 |
|||||
Freedom of |
|
48, 265, 271-273, 476 |
||||
Interpretation of |
274-276 |
|||||
- |
of Agency/Agent |
99-101, 293, 294, |
||||
|
296 |
|
|
|
|
|
- |
of Bank Deposit |
|
299-300 |
|||
- |
of Commission |
293, 295 |
||||
- |
of Concession |
70, 302-307, 396, 400, |
||||
|
482 |
|
|
|
|
|
- |
of Credit and Loan |
297-299 |
||||
- |
of Entrustment |
301, 302 |
||||
- |
of Joint Venture |
49, 50, 54, 55, 152, |
||||
|
196, 307, 308, 432, 446, 474, 483 |
|||||
- |
of Lease |
78, 95, 98, 111, 112, 197, |
||||
|
247, 250, 255, 260, 275, 276, (280), |
|||||
|
286, 288-293, 310-312, 324, 325, |
|||||
|
327, 329-331, 333, 342, (364), 474, |
|||||
|
482 |
|
|
|
|
|
- |
of Mandate |
293, 294, 297, 482 |
||||
- |
of Payment |
300, 301 |
||||
- |
of Sale |
82, 92, 99, 143, 159, 178, |
||||
|
179, 181, 198, 201, 242, 245, 262-264, |
|||||
|
276, 277, 280-288, 316-318, 333, 334, |
|||||
|
475 |
|
|
|
|
|
Court of General Jurisdiction (Ordinary |
||||||
Courts) |
22, 27, 31-36, 45-47, 158, 209, |
|||||
375, 438 |
|
|
|
|
||
Cross-Border Disputes |
36, 37 |
|||||
Custom |
20, 229, 230, 275, 278, 282, 284, |
|||||
295, 364
488 |
INDEX |
E
Economic Management, Right of 76, 78, 79, 286, 287, 312, 314, 321, 332, 342
Environmental Law 30, 384, 403-423
Federal Agency for the Supervision of the Use of Nature (Russprirodnadzor) 384, 411, 413, 416, 422, 423
State Ecological Review 404-408, 412-423
Environmental Impact Assessment 405, 407, 408, 414-420
F
Federal Constitutional Law 7-9, 13, 36 Federal Law 3, 4-8, 9-11, 14, 22, 35, 36, 44, 72-74, 132, 133, 150, 245, 255, 298, 304, 305, 313, 320, 326-328, 330, 362, 368, 379, 380, 393, 428
Foreign Investment Law 53, 55, 130, 273, 319, 327, 351, 385, 396, 432
Foreign Law 22, 47, 49, 53, 65, 73,
474-478 |
|
G |
|
Government Edicts |
6, 12, 13, 273, 325 |
Grandfather Clause |
55, 395, 432 |
H
Hypothec 70, 90, 217, 246-259, 329, 332, 333
I
Independence of the Courts/Judges 2, 19, 23, 24, 37-40, 54
Insider Trading |
189-191, 207 |
|
Insolvency Law |
|
|
Administrator |
40, 127, 132, 207, 208, |
|
210, |
212-220, 223-225, 227, 228, 262, |
|
279, |
368, 374, 377 |
|
Application for Bankruptcy 211, 212 Bankruptcy (konkurs) Procedure
223-227
Cases of 29, 450 External Administration
Procedure 218-223
Financial Restoration 209, 216-218, 374-378
Insolvency of Credit Organisations 361, 363, 366, 368, 375-378
Law of 30, 39, 205-228 Observation Procedure 214-216
Symptoms of Bankruptcy 148, 149, 209
Inviolability of Property 48, 71, 72
J
Joint Stock Companies
General |
43, 35, 68, 70, 71, 76, |
84, 90, 91, 105-110, 114, 118, 121-127, 132-187, 189, 191-193, 198, 199, 201, 203, 204, 218, 253, 355, 367
Appraisal Rights 149, 155, 156 Articles of Incorporaiton 80, 82, 97,
122, 123, 129, 131-136, 140, 141, 146-148, 150, 152, 153, 155, 156, 161-163, 166-171, 176, 180, 183, 186,
187, 218, 475 |
|
|
Audit Committee |
124, 125, 151, 153, |
|
154, 161-164, 167, 169, 180, 183, |
||
194, 185 |
|
|
Board of Directors |
90, 91, 119, 123, |
|
134-138, 140, 147, 148, 151, 153, 156, |
||
159-180, 183-187 |
||
Capital |
136-140 |
|
Closed |
122-124, 132, 133, 139, 145, |
|
184, 253 |
|
|
Establishment of |
132-134 |
|
Executive Bodies |
109, 156, 160, |
|
164-166, 168, |
170-173, 183 |
General Shareholders’ Meeting 108, |
|
134-141, 144, |
146-160, 163, 166-177, |
180-187, 218
Golden Shares 119, 135 Independent Directors 169-171, 180,
181
Interested Party Transactions 161, 167, 178-183, 220
Liability of Directors and Of cers 150,
173, 174, 181, 228 |
|
Liability of Shareholders |
124, 125, |
228 |
|
Liability of the Parent Company |
|
125-127, 228 |
|
Major Transactions 146, 161, 167, 168, |
|
174-178, 181 |
|
Mergers/Reorganisation |
30, 35, 77, 80, |
114, 129, 132, 135, 151, 155, 186, 187, 215, 236, 306, 361, 372, 373, 377, 378, 479
Open 90,122-124, 132, 137, 139, 145, 154, 185
Share Buy-Back 147-148
INDEX
Shareholders’ Rights |
108, 137, 150, |
||
156, 164 |
|
|
|
Jurisdiction of the Court |
19, 25, 28, 30, |
||
33-37, 42, 43, 45, 47, 51, 52, 82, 91, 141, |
|||
211, 428, 449, 450, 454, 456, 481 |
|||
Juristic Acts |
80, 85-100, 271, 273, 293, |
||
294, 316, 333, 352, 479, 480 |
|||
Void and Voidable |
87-99 |
||
Sham/Fictitious |
89, 95, 96, 263-265 |
||
L |
|
|
|
Limited Liability Companies |
|||
General |
70, 71, 75, 105-107, 121-127, |
||
160, 182, 191-204, 367 |
|||
Articles of Incorporation 192-195, 197, |
|||
199, 200, 201, 203 |
|
||
Audit Committee |
200, 203, 204 |
||
Establishment of |
192, 193 |
||
Exclusion of Members |
196-198 |
||
Interested Parties Transaction |
|||
202-203
Liability of Directors and Executive
Of cers |
203 |
|
|
|
Major Transactions 201-202 |
|
|||
Management Bodies |
199-201 |
|
||
Members of |
193, 194, 199, |
|
||
Participatory Shares |
121, 123, 194, |
|||
195, 198 |
|
|
|
|
M |
|
|
|
|
Money Laundering |
368, 369 |
|
||
N |
|
|
|
|
Non-Commercial Organisations |
70, 76, |
|||
77, 81, 121, 128, 189, 213, 407, 408 |
||||
Notary Public |
61-62, 232, 249, 460 |
|||
O |
|
|
|
|
Obligations |
|
|
|
|
Delay of Performance |
74, 238, 239, |
|||
246, 269, 299 |
|
|
|
|
Impossibility of Performance |
236-239, |
|||
270, 283 |
|
|
|
|
Inadequate Performance 30, 229, 238, |
||||
240-243, 305, 306 |
|
|
||
Liability for Breach of |
|
|
||
Obligations |
238-243 |
|
||
Operational Administration, Right of 76,
78, 79, 81, 312-314, 321, 322, 332, 342
Ownership
Private 107, 111, 113, 312, 313,
323-325, 329, 330, 428
489
Right of |
69, 93, 153, 309, 312-321, |
|
|
324, 326, 328, 330-335 |
|
State (Federal and Municipal) 10, |
||
|
313-315, 322, 323 |
|
- |
Foreign, of Land 326-328 |
|
- |
of Land |
10, 313-315, 322-324 |
P
Parent Company 125-127, 215, 397, 433
Partnerships |
31, 76, 107, 121, 194 |
||
Pipe Line 396, 397, 412, 416, 423 |
|||
Pledge |
70, 73, 78, 96, 106, 107, 173, 175, |
||
178, 179, 195, 197, 198, 227, 233, 234, |
|||
236, 237, 245-261, 263-265, 290, 291, |
|||
304, 312, 320, 322, 325, 336, 379, 482 |
|||
Precedents |
14-19, 45 |
||
Prescription Period |
40, 89, 102, 103, 236, |
||
316, 438 |
|
|
|
Presidential Decrees |
12-13, 74, 85, 89, |
||
90, 93, 94, 112, 115, 116, 324, 331, 335, |
|||
408, 421 |
|
|
|
Privatisation |
32, 37, 46, 84, 88-91, 93, |
||
107, 108, |
110-117, 119, 132, 133, 139, |
187, 259, |
276, 286, 287, 289, 292, 293, |
302, 314, 315, 318, 327 Procedure
Adversarial Principle/System 453, 454, 458, 462
Enforcement of Foreign Arbitral
Awards |
17, 42-53, 468 |
||
Enforcement of Foreign Judgments 17, |
|||
29, 35, 43, 45-47, 449, 478 |
|||
Security Measures |
457, 458 |
||
Procuracy/Procurators |
29, 31, 38, 54-55, |
||
57, 58, 116, 275, 286, 287, 349, 375, 415, |
|||
432, 451, 464, 477, 478 |
|||
Product Liability |
283, 343, 350, 484 |
||
Production Sharing |
312, 380, 381, |
||
383-400, 403, 415, 431 |
|||
Public Policy |
44, 46-48, 51, 92, 93, 476, |
||
477 |
|
|
|
R
Real Security Rights (see Pledge) Registration of Immovables 83, 247, 248,
253-256, 285, 287, 290, 292, 293, 318,
331-337, 480
Registration of Juridical Persons 37, 52, 75, 76, 80, 88, 89, 93, 128-131, 133, 187-189, 192, 193, 368, 433, 435, 480 Registration of Shares 109, 141-144,
365
490 |
INDEX |
Rights on Land other than Ownership 330-331
S |
|
Securities |
30, 37, 51, 61, 83, 84, 132, 133, |
136, 138, 139, 141, 142, 146, 148, 154, 166, 167, 175, 178, 184, 187-191, 198, 200, 204, 215, 232, 243, 249, 250, 260, 299, 301, 316, 317, 358, 360, 365, 367
Sovereign Immunity 81, 82
Securities Market 70, 142, 143, 147, 148, 154, 187-191, 367
Sub-soil Law 305, 379-384, 387-391, 400, 403, 405
Suretyship |
217, 245, 246, 265-268, 482 |
T |
|
Tax Code |
398, 399, 406, 427-429, 431, |
433, 434, 436, 438, 441-444, 446, 447 Value Added Tax 341, 394, 395, 398,
425, 427, 430, 442-443, 448 Corporate Pro t Tax 440-442
Taxation of Foreign Companies
446-448
Transfer Pricing 109, 121, 149, 447,
448
Tort Liability
Activities involving Increased danger
(Non-Fault Liability) 339, 341-344,
411, 412, 453 |
|
|
|
General |
339-345 |
|
|
Government Tort Liability |
|||
350-352 |
|
|
|
Moral Damage |
74, 75, 339, 343, 344, |
||
347-350, 352 |
|
|
|
Special Rules |
345-346 |
||
Treasury Enterprises |
76, 79, 209, 267, |
||
310, 322, 480 |
|
|
|
U |
|
|
|
Ultra Vires |
79, 80, 96, 135 |
||
Unitary Enterprises |
70, 76, 78, 79, 81, 83, |
||
110, 121, 135, 312-314, 321, 322 |
|||
Unjust Enrichment |
37, 50, 68, 229, 265, |
||
280, 352-353, 484 |
|
||