<<
>>

practice of the Russian vessels in sphere legal regulation of a transboundary inconsistency

Having considered theoretical and legal bases of the doctrine of the basic manufacture and distribution of powers of the states on its excitation, we believe expedient to consider the problem on how it is regulated transboundary nesostoja telyjust in the Russian Federation, namely - what theory is taken as a principle the EC of a regulation what the generated practice of application of not numerous norms about a transboundary inconsistency what a regulation of distribution of powers of vessels and definition of the international jurisdiction on business about a transboundary inconsistency, further to define, what changes it is necessary to bring in the current legislation.

In the Russian Federation of a pas today is absent system legal regulation of a transboundary inconsistency, a number national-rules of law, not in full a Mercedes of public relations corresponding to development in dajnoj to sphere operates only. It is possible to carry to number of such rules of law first of all item 6 of item 1 of the Federal act from 26.10.2002 № 127-FZ (red. From 01.12.2007) «About an inconsistency

(Bankruptcy) »(further - the Law on bankruptcy), where in development of positions ch. 4 items 15 of the Constitution of the Russian Federation are specified, that if the international treaty of the Russian Federation establishes other rules, than the hardware which are provided by the present Federal act, rules of the international treaty of the Russian Federation are applied; item 5 of item 1 of the same law in which it is provided, that to the adjustable Law on bankruptcy to relations with participation of foreign persons as creditors are applied positions of the present Federal act if other nanosecond is provided by the international treaty of the Russian Federation. Also, operates with item 6 of item 1 of the specified law, establishing, that decisions of vessels of the foreign states on affairs about an inconsistency (bankruptcy)
Admit to a pas tsrrijurii the Russian Federation according to international treaties of the Russian Federation. In the absence of international treaties of the Russian Federation of the decision of vessels of the foreign states on affairs about an inconsistency (bankruptcy) admit in territory of the Russian Federation on the basis of reciprocity if other nanosecond is provided by the federal act. Besides, the Circular of Presidium YOU the Russian Federation from 22.12.2005 № 96 «the Review of practice of consideration by arbitration courts of affairs about a recognition and execution of decisions of foreign vessels, about contest of decisions of the arbitration courts and about delivery of court orders on enforcement of decisions of the arbitration courts» is provided, that the statement for a recognition and execution of the foreign judgement, taken out against the person in which relation the statement for a recognition is handed in by its bankrupt and definition about supervision introduction is taken out, considered in business about bankruptcy. On a sou ti the affairs, by the given positions special legal regulations of legal relations in sphere transboundary несоетояіельности it is settled. Thus, certainly, for them reglamentny norms more the general character are used also: norms of the remedial legislation on manufacture on affairs with participation of foreign persons, a recognition and execution of foreign judgements, etc.

All it testifies that the transboundary inconsistency in the Russian Federation is regulated a pas to a basis of the theory of territoriality. As it has been established in chapter 1, basic "parametres" of the given theory are following characteristics: 1) an applicable law, despite presence in legal relation of a foreign element, the national law acts; 2) at definition of the international jurisdiction I apply і sja the norms operating in given national-legal system and specifying in the competence of own court, at ejum criteria of jurisdiction are defined by each state independently, that
Leads to possibility of occurrence of several parallel manufactures on business about an inconsistency; 3) exterritoriality of action of norms of an applicable law is absent, i.e. action of norms of the corresponding legislation on an inconsistency is limited by state territory of their creation that causes impossibility of inclusion of the property located in territory of the given state, in the bankrupt's estate of the manufacture initiated in the relation of the given debtor in territory of other state and made ia to a basis of the right of other state, and also impossibility of the account of a share of satisfaction of requirements of creditors in foreign manufactures at distribution of the bankrupt's estate among the creditors participating in bankruptcy proceedings in data gosudars tve; 4) the recognition and execution of foreign judicial certificates is carried out in the general order: Or by means of reception of the special permission from the state in which territory the recognition and execution (ekzekvatury) is required, or by means of execution of court orders that influences efficiency of execution of certificates and commissions, and in some cases in general excludes such possibility.

Further we believe expedient to confirm each of parametres judiciary practice materials (the most known affairs - company business «Kalinka Trade Aps», business «National nuclear energogenerirujushchej companies" Energoatom "and a number other) to confirm an inefficiency of the theory of territoriality in the Russian Federation. The analysis such pravoprimenenija is remarkable and from a position of verification of the thesis about necessity of creation for the given sphere of adequate international legal regulation, including in a question distribution of powers of the states (definition of the international jurisdiction) on excitation of the basic manufacture.

For the territoriality concept national law application, nesmotrja ia presence in legal relation of a foreign element is characteristic. In norms of the Russian right there is no direct decision of a question on what right of the state comes under to application in legal relations,

Connected with an inconsistency a linden. To the Russian legal system conflict rules in the given sphere in this connection pravoprimenitel cannot pe test difficulties since first, possibility of statement of a conflict question is not settled are not known, in other words, not clearly, whether suppose basically the granted legal relations possibility of application of the foreign right. And secondly, if possibility of application of the foreign right nevertheless exists, is not clear, the pas to a basis of what connecting factor it should be defined and to what volume of legal relations to be applied [291].

In judiciary practice in the given occasion it is not observed unities. So, in the decision from 03.06.2004 № КГ-А40/4299-04 on business of the debtor of Open Society "nuclear heating plant" the Federal arbitration court of the Moscow district has noted possibility of application of the foreign right in business about an inconsistency, but not foreign bankrotnogo legislations, and the foreign right, the applicable bond creditor to the requirement shown during bankruptcy proceedings. The court has specified, that to the adjustable legislation on bankruptcy to relations with participation of foreign persons as creditors norms of the Russian legislation if other is not provided by the international treaty of the Russian Federation are applied. Such position is quite logical and completely corresponds to the concept of territoriality and protection of public interests of the state.

Meanwhile in the Decision of the Thirteenth arbitration appeal court from 24.08.2006 on business № А56-14945/2004 concerning the company «Kalinka Trade ApS» the Appeal court pe has agreed with application to the foreign legal body whom the respondent was, norms of the Russian legislation on bankruptcy. It has been established, that joint-stock company "Company" Kalinka Trade Aps »is

The legal body founded in territory and under the legislation of Denmark. According to article 1202 GK the Russian Federation is considered the personal law of the legal person the country right where the legal body is founded, and on the basis of the personal law of the legal person questions of creation, reorganisation and liquidation of the legal person, including assignment questions, the maintenance of the legal capacity of the legal person, an order of acquisition by the legal body of the civil rights and assumptions of civil duties, ability of the legal person to answer under the obligations are defined, in particular, the status of the organisation as the legal person. As bankruptcy procedures (without dependence from application of the right of this or that country) regulate the relations, concerning possibilities to execute legal body obligations on civil-law transactions and as an end result of process of bankruptcy can lead to the termination of the legal person, that is loss of the status by it, that, is obvious, that proceeding from specified article to the legal body should be applicable bankrotnoe the legislation of the country of a place of its establishment. Application to the foreign legal body as to the poor debtor of the legislation on bankruptcy of the country of its establishment proves to be true also that according to a part 5 items 1 of the Federal act «About an inconsistency (bankruptcy)» № 127-FZ from 26.10.06 of the present federal act of position are applied to adjustable them to relations with participation of foreign persons, only if they act thus as creditors. Thus, the court has come to conclusion that to joint-stock company "Company" Kalinka Trade Aps »should be applied the law on bankruptcy of Denmark including regarding application of consequences of a recognition by its bankrupt in this connection the trial court could not leave Joint-Stock Company" BEACON "statement of claim (the claimant on business) without consideration referring to Federal act item 126« About an inconsistency (bankruptcy) », and should investigate consequences

Recognitions of joint-stock company "Company" Kalinka Trade Aps »” the bankrupt under the law of Denmark.

The given case is remarkable on several aspects. First, this judicial certificate - one of the few in judiciary practice of the Russian Federation when the court in the legal relations connected with an inconsistency, has asked a conflict question and began to solve a question about applicable the bankrupt the legislation. Thus the court has defined the statute of an inconsistency on the basis of the conflict rule defining the personal law of the company, in other words, has included in conflict rule volume about the personal law of the legal person, except other, and legal relations, its concerning inconsistencies.

It was above noticed, that the international community starts with application of other connecting factor in cases of a transboundary inconsistency, namely a binding to a place of excitation of manufacture on business (lex Готі concursus). In this case the same state, as an incorporation place that happens often enough since as criterion of jurisdiction of manufacture on business about an inconsistency the place of incorporation of the company acts in a number legal systems was a place of excitation of manufacture on business. But, as it was marked in the previous paragraphs, it is far not in all cases the given rule, and Reglamen t EU - bright to volume an example in this connection it is represented not quite correct to use the personal law of the company for definition applicable bapkrotpogo legislations as it can "tear off" an applicable law from the state right where manufacture on business in the relation of the debtor has been initiated operates.

The second basic conclusion which is necessary for making, analyzing the given judgement, concerns the following. In spite of the fact that the position according to which the court has defined the applicable legislation on an inconsistency on the basis of the company personal law is not quite correct, the court nevertheless has quite right revealed indissoluble communication of the relations entering into the personal law of the company, and relations,
Regulated by the legislation on bankruptcy in this connection has specified, that they should be regulated by the same right. The given position is represented correct, that already was above marked and proved, but the unity of the applicable right to the granted legal relations should be reached otherwise. Applicable bankrotioe the right, both material, and remedial, should be defined on a basis lex fori concursus, and here the criterion of the international jurisdiction of manufacture should coincide with the criterion defining the personal law. Optimum the basic for this purpose acts the incorporation theory.

Coming back to the analysis of regulation of the transboundary

Inconsistencies in the Russian Federation, we notice, that the following characteristic of the theory of territoriality is the decision of a question on jurisdiction of affairs on an inconsistency. In territoriality at definition of the international jurisdiction the norms operating in given natsionalnoyopravovoj to system and specifying pases the competence of own court are applied, at this criterion of jurisdiction are defined by each state

Independently, that leads to possibility of occurrence of several

Parallel manufactures on business about an inconsistency.

The Russian Federation is not the participant of any international treaty directed by a pas regulation of legal relations in given sphere, and, accordingly, carrying out of uniform or basic manufacture regulating possibility, so, and establishing any kri tery the international jurisdiction for the given manufactures. In this connection the judiciary practice concerning pravoprimenenija of criterion of definition of the international jurisdiction of the basic manufacture, it is not created. The given situation completely corresponds to the territoriality theory.

The norm regulating definition of jurisdiction on business about an inconsistency in the Russian Federation, is national-legal and is fixed in item 1. Item 33 of the Federal act from 26.10.2002 № 127-FZ (red. From 01.12.2007) «About an inconsistency (bankruptcy)» (further - the Law about
Bankruptcy) where it is specified, that affairs about bankruptcy of legal bodies and citizens, including individual businessmen, considers arbitration court on the location of the debtor - the legal person or on a residence of the citizen. Item Z of same article supplements the above-named position ' with that forbids business transfer about bankruptcy on consideration in the arbitration court.

Analyzing the specified norm, it is possible to draw following conclusions: in - the first, opa provides definition of interstate jurisdiction of business about an inconsistency. As a matter of fact, the given positions do not concern a question on distribution of powers of vessels various

The states, but in case of absence of special legal regulation and at complicated ™ legal relations by a foreign element in remedial sphere the question on definition of the international jurisdiction will be defined on the basis of the given norm. Accordingly such unilateral regulation can lead described above si tuatsijam conflicts of jurisdictions and excitation of parallel manufactures in case norms of the foreign right provide possibility of excitation of manufacture on business about an inconsistency concerning the foreign debtor. In particular, such situation is quite possible and at application, for example, EU analysed above Regulations and criterion of "the centre of the basic interests of the debtor». If the court of the state-participant of EU recognises, that the Russian company-debtor has the centre of the interests of a pas of territory of NANOSECOND the court of the corresponding state quite can excite manufacture on business about an inconsistency of such company, and it will be legitimate in territory of the state-participants of EU.

Secondly, the given norm establishes exclusive jurisdiction both in aspect interstate, and in aspect of the international. From the given thesis the conclusion about ' volume follows, that it cannot be changed under the agreement of parties, that corresponds to specificity of adjustable legal relations, in particular, oposredovaniju in them not only private, but also
Public interests. Besides, it can generate копфликіьі exclusive jurisdictions that involves impossibility of a recognition of legal effects behind judgements of a pas of territory of the states, whose exclusive jurisdiction has been broken. Accordingly, in described above a situation of parallel manufactures concerning the same debtor of a pas of territory of the Russian Federation and the state of EU the last will extremely ieskoordiiiovaiy and the validity of the judgements taken out in their frameworks will be limited by jurisdiction or the Russian Federation, or according to Regulations - EU territory.

Thirdly, it is a question nanosecond of jurisdiction of the basic manufacture, and jurisdiction of manufacture but to business about an inconsistency that means, on

Essences, jurisdiction of territorial manufacture, so, absence of automatic exterritorial effect of the last (the recognition of that is possible only at the coordination of will of the states, i.e. by means of international treaties). The international jurisdiction of the basic manufacture on business about a transboundary inconsistency in the Russian Federation is not defined, as not ї regulations of carrying out of the basic manufacture basically, and for lack of it the problem разі rapichepija the competence of vessels pe rises.

Fourthly, as it was specified above, the given norm is national-legal, means, pe assumes the coordination of will of the states, hence, e conflicts of jurisdictions, including conflicts of exclusive jurisdictions will arise inevitability,

Described above.

Fifthly, as criterion of jurisdiction in this case acts «mssju findings of the debtor - the legal person». There is a question, chju is understood as the location of the debtor and whether there can be a given criterion is taken for a basis as criterion of the international jurisdiction of the basic manufacture.

Here it is necessary otmstit, that the term «the location of the debtor - the legal person» in this case is used for the purpose of interstate localisation of the debtor (as the norm is calculated on interstate application). The concept «the location of the legal person» in such context is given in item 2 of item 54 of the Civil code of the Russian Federation [292] (further - GK the Russian Federation) where it is specified, that the location of the legal person is defined by a place of its state registration. The state registration of the legal person is carried out on the location of its constantly operating executive office, and in case of absence of constantly operating executive office - other body or the person, having the right to operate on behalf of the legal person without the power of attorney. Also, in item 2 of item 8 of the Federal act from 08.08.2001 № 129-FZ «About the state registration of legal bodies and individual businessmen» [293] it is defined, that the state registration of the legal person is carried out on the location specified by founders in the statement for the state registration of constantly operating executive office, in case of absence of such executive office - on the location of other body or the person, having the right to operate on behalf of the legal person without the power of attorney.

Thus, the location of the debtor is a place of its state registration which should coincide with the location of constantly operating executive office. In context MCHP it is possible to make two basic conclusions of the given thesis. First, manufacture excitation on business about an inconsistency in the Russian court probably only concerning the Russian persons, as registered in a statutory order in territory of the Russian Federation

There can be only Russian legal bodies (that follows from and. 1 items 1202 GK the Russian Federation about personal law definition, and consequently, nationalities of the legal person in a place of establishment of the last). And in - the second, as criterion of the international jurisdiction of territorial manufacture on business about an inconsistency by the Russian right the place of the state registration of the legal person, i.e. its incorporation as according to the above-stated norms the fact of registration of the legal person will be defining, instead of the location of constantly operating executive office, thus, acts. The chain of localisation of the company in space is built as follows: the location is defined in a place of registration which is defined on the location of constantly operating executive office. If the last it does not mean automatic change of the second and the first changes.

As it is represented, from the point of view of the theory, the criterion «the location of the debtor» has no independent value and is reduced to the criteria analysed above: or to the location of the central controls, or to an incorporation place where the last sees more preferable as the criterion of incorporation for use as criterion of the international jurisdiction of the basic manufacture on business about a transboundary inconsistency is represented to the most effective that has been proved in the second chapter of the given research.

But thus the criterion «the location of the debtor» is not quite comprehensible to use with a view of MCHP as in all cases demands the explanatory. In this connection at the formulation of the textual maintenance of norm of the international treaty, concerning definitions of court of competent jurisdiction on excitation of the basic manufacture, it is necessary to use other ' the term more accurately reflecting an essence of criterion of incorporation, namely a place of establishment of the legal person.

218.

As it has been above established, the criterion of incorporation is optimum in use as criterion of the international jurisdiction of the basic manufacture at use of the similar connecting factor defining the personal law of the legal person. In this connection it is necessary to note again item 1 of item 1202 GK the Russian Federation in which it is established, that the personal law of the legal person considers the country right where the legal body is founded. Thus, the Russian legislator fixes the formula according to which there is no rupture between the applicable legislation on an inconsistency and the right, applicable to the legal body. Hence, in the Russian Federation there are preconditions and necessary conditions for fastening of the given rule on mezhdunarodnoyopravovom level by creation of the unified criterion of the international jurisdiction of the basic manufacture and the unified connecting factor by definition of the personal law of the company on the basis of the incorporation theory.

Following two characteristics of the theory of territoriality - absence of exterritoriality of action of norms of an applicable law and absence automatic (without delivery ekzekvatury) recognitions and executions of foreign judicial certificates on business about an inconsistency, that as a result leads to absence of exterritorial effect of manufacture concerning the debtor and limitation of the last the state territory which court is manufacture initiated.

Point 6 of item 1 of the Law on bankruptcy establishes, that decisions of vessels of the foreign states on affairs about an inconsistency (bankruptcy) admit in territory of the Russian Federation according to international treaties of the Russian Federation. In the absence of international treaties of the Russian Federation of the decision of vessels of the foreign states on affairs about an inconsistency (bankruptcy) admit to a pas of territory of the Russian Federation of a pas the reciprocity beginnings if other nanosecond is provided by the federal act. Similar norm

Contained and in earlier operating Federal act from 08.01.1998 № 6-FZ «About an inconsistency (bankruptcy)» [294] (ch. 2 items 7 of item 1).

The given norm of the Law on bankruptcy ustanavlivast recognitions special an order in investigated sphere of decisions in comparison with the general order provided by item 241 of agrarian and industrial complex of the Russian Federation where it is told, that decisions of vessels of the foreign states, accepted by them on disputes and other affairs arising at realisation of enterprise and other economic activities (foreign courts), admit and carried out in the Russian Federation by arbitration courts if the recognition and execution of such decisions is provided by the international treaty of the Russian Federation and the federal act [295].

Such special order, on the one hand, nanosecond puts in dependence a recognition and execution of foreign judgements on business about bankruptcy completely in dependence on presence or absence of the international treaty of the Russian Federation, that as it is represented, expands possibilities for a recognition of such decisions. But thus, under the certificate of experts, in judiciary practice of the Russian Federation there was an approach [296], according to which remedial reciprocity (unlike conflict, provided item 1189 GK the Russian Federation where the reciprocity presumption) nanosecond prezjumiruetsja is established, and come under '! ’ to an establishment, and if in the foreign

The state there is no legal possibility of reduction of the decision of the Russian court in execution the decree of this foreign state be carried out in Russia cannot.

All it does inconvenient and long procedure of a recognition and execution of a foreign judgement, and in business about песостояіельпости similar delay I do і peeffekzhvnym the mechanism of the subsequent execution of these decisions whereas debtors for long time of procedure of a recognition of the decree have time to realise property.

Also Decision FAS of the Moscow district from 01.03.2007, 09.03.2007 № КГ-А40/11729-06-Б on business № А40-11836/06-88-36Б on business «Moravel Iivestments Limited» is remarkable. The specified company has addressed in court with the statement for inclusion of requirements of the applicant in the register of requirements of creditors of the debtor of Open Society «Oil company" YUKOS ", thus ' requirements of the applicant have been based a pas the decision of the London international arbitration court. According to positions of item 71 of the Federal act« About an inconsistency (bankruptcy) »requirements krsdijurov with the appendix of the judicial certificate or other documents confirming validity of these requirements, are considered by arbitration court which checks validity of requirements and presence of the bases for inclusion of these requirements in the register іребований creditors of the debtor. The company leant against norms of the Circular of Presidium YOU the Russian Federation from 22.12.2005 № 96« the practice Review

Considerations by arbitration courts of affairs about a recognition and execution of decisions of foreign vessels, about contest of decisions of the arbitration courts and about delivery of court orders on enforcement of decisions tre ї Yeysk vessels »in which it is provided, that the statement for a recognition and execution of the foreign judgement which has been taken out against the person in which relation the statement for a recognition is handed in by its bankrupt and is taken out definition about supervision introduction, considered in business about bankruptcy.

However the specified Decision the Federal arbitration court of the Moscow district has proved a position of the court below which has given up to the company «Moravel Ipvestmepts Limited» in inclusion of the requirement of the company in the register of requirements of creditors of Open Society «Oil company" YUKOS "because of absence of the judicial certificate about a recognition and execution of the foreign arbitral award of a pas of territory of the Russian Federation, accepted as chapter 31 of the Arbitration code of practice of the Russian Federation as the company« Moravel Ипвесімепіс Limiged »has addressed in court pe with the statement for a recognition and execution of the decision London international arbitrazhnoju vessels in a statutory order, and with the statement for inclusion of requirements of the applicant in the register of requirements of creditors of the debtor. Hence, the positions provided by chapter 31 of agrarian and industrial complex of the Russian Federation and regulating an order of a recognition and execution of foreign judgements, pe have been observed.

Thus, rules of a recognition other і rapnyh judgements on business about несостоягсльпосіи are supplemented with norms of the Circular of Presidium YOU the Russian Federation from 22.12.2005 № 96 that the statement for a recognition and execution of the foreign judgement which has been taken out against the person in which relation the statement for its recognition bapkrojum is handed in and is taken out definition about supervision introduction, is considered in business about bankruptcy. Thus it is necessary to address initially with the statement for a recognition and execution of a foreign judgement then already there will be a legal possibility about inclusion of the requirements confirmed with such judgement, in the register of requirements of creditors.

Also business «National ajumnoj energogeperirujushchej companies" Эпергоатом "is rather remarkable. By the decision of the Thirteenth arbitration appeal court from 14.07.2005 on business № А56-7455/2000 it is established, that final process,
Issued ia the basis of the court order, does not come under to stay in case of excitation of manufacture by court of the state of Ukraine but to business about an inconsistency (bankruptcy) of the debtor in view of absence in the Agreement of the CIS countries from 20.03.92 «About an order of the resolution of disputes, connected with economic activities realisation» reservations on possibility of application of the foreign legislation on an inconsistency (bankruptcy) arbitration court of the Russian Federation.

Handing in statements for stay of final processes, «National nuclear energogsnsrirujushchaja companies" Эпергоатом "has addressed in the Russian court with the statement for stay of final process and was guided operating before item 1 of item 20 FZ« About final process »№ 119-FZ from 21.07.1997 according to which final process comes under to obligatory stay in a case, except other, excitation by manufacture arbitration court on business about an inconsistency (bankruptcy) of the debtor. The basis for final process stay, io to opinion of the applicant, was definition of Economic court of of Kiev from 02.12.03 about opening concerning it manufacture about bankruptcy (business № 43/167).

The appeal court has disagreed with arguments of the applicant because owing to item 13, 241 agrarian and industrial complexes of the Russian Federation the arbitration court applies norms of the foreign right, and also recognises and executes decisions of vessels of the foreign states only according to the international treaty of the Russian Federation and the federal act.

Application of the legislation of Ukraine about an inconsistency (bankruptcy) arbitration court of the Russian Federation is not provided by the Agreement of the CIS countries from 20.03.92 «About an order of the resolution of disputes, connected with economic activities realisation» and the Decision of the Supreme body of the Russian Federation from 09.10.92 №
3620-1 about ratification of the given Agreement. Possibility of such application does not follow and from any federal act of the Russian Federation.

Besides, from the literal maintenance of item 241 Arbitration protsessualnoju the code of the Russian Federation it is visible, that the recognition and a carrying out are come under by decisions of vessels of the foreign states, accepted by them on the substance of dispute. Positions of agrarian and industrial complex of the Russian Federation ie I provide! Reduction possibilities і? Execution of others, besides decisions, certificates of vessels foreign jusudarstv, ирипяіьіх them to or after dispute consideration on

To being.

Norms of the Agreement, concerning questions of a mutual carrying out of decisions of the state vessels, in particular item 7-8, also nanosecond contain instructions on possibility of reduction of others, besides decisions, judicial certificates of vessels of the agreeing states.

As definition about opening concerning the enterprise of manufacture for business about bankruptcy and moratorium introduction not sootvstsgvuet to the criteria set forth above, it ie has been recognised and led to execution in an order provided by norms of the Arbitration code of practice of the Russian Federation and the Agreement. The court of cassation Federal арбітражно ї about vessels of Northwest district from 29.09.2005 on business № Л56-7455/00 has confirmed with the Decision legality and validity of the given position

The given judgements show a position Russian pravoprimenitelja concerning refusal in a recognition and execution of the foreign judicial certificate, nanosecond being a judgement, that, in turn, means, that foreign manufacture in territory of the Russian Federation admits only some part, concerning decree executions about bankruptcy of the person. Other norms of the foreign right and other certificates iios ' і rapnyh nanosecond vessels will generate pas legal effects terri torii the Russian Federation.

It is remarkable, that in the subsequent attempt to bypass the specified norms of the Russian legislation on impossibility of a recognition and execution of the foreign court order on business about an inconsistency has been undertaken. The economic court of a city of Kiev has addressed to Arbitration court of a city of St.-Petersburg and Leningrad region with the court order about final process stay about collecting from enterprise "Energoatom" of 23,08 million US dollars to a legal investigation about bankruptcy of the last. Such business has been initiated by definition of Economic court of a city of Kiev from 02.12.2003 the Same definition on the basis of item 1 1 of the Law of Ukraine «About restoration of solvency of the debtor or a recognition its bankrupt» the moratorium on satisfaction of requirements of creditors of a pas all proceedings about bankruptcy has been entered. The request the Economic court of a city of Kiev motivated the item 6 and 7 Conventions on legal aid and legal relations on civil, criminal and to family proceedings of 1993

The economic court of a city of Kiev has specified the request and asked court to render legal aid by a recognition of definition of Economic court of a city of Kiev from 02.12.2003 on business № 43/167 regarding distribution of the moratorium on satisfaction of requirements of creditors of enterprise "Energoatom" on territory of the Russian Federation, and also to suspend final process as finishing stage of litigation on execution of judgement from 24.12.2002 on the given case.

The court has given up in satisfaction of the petition of Economic court of a city of Kiev about a recognition of definition of the given court on business about bankruptcy of the state enterprise regarding distribution of the moratorium on satisfaction of requirements of creditors of the enterprise of a pas territory of the Russian Federation as the current legislation supposes a recognition and a carrying out only decisions of foreign vessels, and nanosecond of their definitions. Also the court has specified, that neither item 256 of agrarian and industrial complex of the Russian Federation, nor nanosecond international treaties provide fulfilment
Court on the instructions of a foreign court of such legal proceeding, as stay of execution of a judgement on the basis of the circumstance which have come a pas of territory of the foreign state.

The court has noticed, that the Economic court of a city of Kiev actually asks to carry out the court ruling about introduction of the moratorium of a pas satisfaction іребовапий creditors of enterprise "Эпергоатом" in territory of the Russian Federation as to be entered the moratorium should by court ruling removal about final process stay. Such stay not mozheg to be considered as recognition procedure, predusmo§repnaja ch. 1 items 52 of the Minsk convention.

At the same time the agreement «About an order of the resolution of disputes, connected with economic activities realisation» (Kiev, 20.03.1992) provides a mutual recognition and execution of decisions of vessels, and nanosecond of their definitions. In the Minsk convention enforcement possibility only decisions of vessels also is provided. As it is correctly marked in the appeal for review, the decisions of vessels accepted under merits of case mean. In force ch. 1 item 241 of agrarian and industrial complex of the Russian Federation also is supposed a recognition and a carrying out only decisions of foreign vessels.

The Supreme Arbitration Court of the Russian Federation from 23.06.2008 № 11934/04 on business № А56-7455/2000 has confirmed with definition a position of courts below, having specified, that judicial certificates of foreign vessels about application obespechitelnyh nanosecond measures come under to a recognition and pas enforcement zerrijurii to the Russian Federation as pe are definitive judicial certificates on real gvu the dispute, taken out in adversary procedure.

Thus, it is possible to notice, that exterritoriality of foreign manufactures does not admit the Russian Federation and pe possibility automatic (without delivery ekzekvatury) recognitions of foreign judgements on business about an inconsistency admits. We believe, that in the conditions of the theory of territoriality existence of the given norms quite defensible, since possibility of an automatic recognition and execution
Foreign judgements and their exterritorial action should be mutual from the various states and, hence, cannot be entered in itself without change of all system of legal regulation ірансграничной nesos goja gelposti. But the theory of territoriality in the Russian Federation, shown in the specified norms as it is represented, protects only state public interests while private persons for lack of predictability and definiteness of legal regulation for years cannot achieve satisfaction svoshh requirements. Besides, given situation shows dissociation of legal regulation of a transboundary inconsistency as manufacture on business in the relation of the debtor ie has entailed legal effects of a pas of territory of other state.

Meanwhile it is possible to notice, that in single instances courts, realising lacks and an inefficiency of the theory of territoriality, in certain cases apply some elements of the theory universalizma, that has found display in a number of decisions on already analizirovannomu above to company business «Kalinka Trade Aps».

Joint-Stock Company "Beacon" (further - the Society) has addressed in court with the requirement about collecting from the debts Company on a rent under the rent contract from 01.04.1998 the Trial court has left on the present business the claim without consideration, having established, that the company «Kalinka Trade Aps» (further - the Company) has been declared by the bankrupt the decision of Sea and Commercial court of Copenhagen from 09.08.2001 Definition of Arbitration court of a city of St.-Petersburg and Leningrad region from 26.02.2006 on business № А56-56528/2005 the specified decision of foreign court is recognised by a pas of territory of the Russian Federation. The Society requirement about debts repayment on a rent at a rate of 1342178,48 Danish crones is included in the register of debts of the Company at number 36. In this connection the Society requirement to the Company should be considered by specialised foreign court within the limits of cases about bankruptcy.

The court of appeal instance has cancelled the court ruling and has satisfied claims in full, having drawn a conclusion that the recognition of the Company the bankrupt the decision of Sea and Commercial court of Copenhagen is unreasonably recognised by the trial court as the basis for leaving of the claim without consideration. At the moment of reference Общееіва in the Russian arbitration court with the present claim the decision of foreign court has not been recognised by a pas of territory of the Russian Federation, and the subsequent recognition of the decision of foreign court has no retroactive effect. Besides, the court has specified, that the debts recovery suit on rent payments and the requirement about a recognition of the debtor insolvent regardless of the fact that within the limits of the specified business requirements about validity of the statement of requirements about collecting of rent payments are considered, nanoseconds are identical claims.

The federal arbitration court Northwest okru ї and the Decision or on business № А56-14945/2004 has disagreed 20.09.2007 with arguments of court of appeal instance, having specified the following: the recognition of a foreign judgement is meant in this case, that by the Russian Federation, being guided by reciprocity and international comity principles, recognises and takes into consideration presence in foreign state court of business about the Company inconsistency.

In this connection that circumstance, that the decision of Sea and Commercial court of Copenhagen from 09.08.2001 is recognised by a pas ісрригории the Russian Federation in 2006, i.e. after the reference of the Society with the present claim in the Russian arbitration court (13.04.2004), the pas the decision of a question on presence of legal grounds for consideration by the Russian court of dispute on collecting from the foreign legal person - the debts bankrupt on a rent does not influence.

Inclusion in the debt sheet of the requirement of the Society testifies to granting of the Russian organisation of access to justice of a pas of territory of the foreign state and confirms the fact
Participations of the Society in procedure of bankruptcy of the Company. Proofs of infringement of the rights of the Society during lawsuit consideration about an inconsistency of the respondent are not presented.

Dispute on duty default on payment of rent payments is obligations and is not connected with the permission of a question on the rights to objects of the real estate. In this connection the given dispute pe is carried to the exclusive competence of Arbitration court of the Russian Federation (item 248 of agrarian and industrial complex of the Russian Federation).

Thus, the court has come to conclusion that the trial court has legally left without consideration Joint-Stock Company claim about collecting from the foreign company of debts under the rent contract as the company is recognised by the bankrupt the decision of Commercial court of Copenhagen, and the society requirement about debts repayment on a rent is included in the register of requirements of debts of the company in this connection the specified requirement of Joint-Stock Company should be considered by specialised foreign court within the limits of cases about bankro tstve.

The Supreme Arbitration Court of the Russian Federation from 11.03.2008 № 14334/07 on business № А56-14945/2004 has confirmed with the Definition legality before the taken out decisions, having specified the following. As it is established by vessels, the decision of Sea and Commercial court of Copenhagen from 09.08.2001 the Company it is declared by the bankrupt. The given decision is recognised in territory of the Russian Federation by definition of Arbitration court of a city Sankt - Petersburg and Leningrad region from 26.02.2006 on business № А56-56528/2005. Joint-Stock Company "Beacon" requirement about debts repayment on a rent at a rate of 1342178,48 Danish crones is included in the register of debts of the company. Thus, the society rights as creditor of the company have been protected in foreign court within the limits of business about bankruptcy.

Thus, courts, nesmotrja a pas absence in the Russian right of accurate rules of behaviour about a recognition of foreign manufactures on business about an inconsistency, fixed in rules of law, have gone nevertheless on a way
Recognitions of foreign manufacture and, considering that fact, that the rights of a society of Joint-Stock Company "Beacon" as creditor of the company «Kalinka the Trade of Foxes» have been protected in foreign court, courts have not considered possible to bypass norm inostrannoju legal regulation of an inconsistency of the debtor. In our opinion, it testifies to the transition tendency to ispolzvaniju universalistskih concepts in regulation трапсіраничной inconsistencies, but the given tendencies should receive legitimation in

Kind of their fastening in rules of law.

The analysis of judiciary practice of the Russian vessels shows

Inefficiency used ' theories of territoriality for regulation of a transboundary inconsistency, that свидстельствусі about necessity of working out of is standard-legal model of a regulation of the given relations with participation of the Russian Federation and first of all - for the states CIS. As it was already marked, such model can be based on the doctrine of the basic manufacture (modified universalizma) as a pas of the most preferable, as much as possible effective and real from the point of view of practical realisation.

Also the analysis of norms of the Russian right and their application by vessels shows, on суіи, vacuum in a question differentiation I of the competence of vessels of the various states on excitation of the basic manufacture. From all possible criteria of definition of the given jurisdiction within the limits of the concept modified universalizma, in our opinion, the most comprehensible is the criterion of incorporation. Use of the given criterion for model of regulation of a transboundary inconsistency in the state-participants CIS should be interfaced to unification of the connecting factor for definition of the personal law of legal bodies of a pas to a basis of the theory of incorporation, and the precondition for this purpose all are created. Such approach will allow to reach maintenance of primary predictability, minimisation forum shopping, and also to level rupture between the right, applicable to regulation of an inconsistency of the company, and the right,

Applicable to regulation of the personal law of the company. Generated by such approach «a regulation competition» legislators within the limits of the CIS should not be essential as in the CIS the Modelling law on an inconsistency (bankruptcy) from 06.12.1997 is passed, [297] which does not allow to diversify essentially feature of legal regulation of the designated legal relations and, hence, represents itself as "restriction" such «a regulation competition». In this connection, use of criterion of incorporation as criterion of the international jurisdiction of the basic manufacture on business about a transboundary inconsistency sees proved and perspective.

<< | >>
A source: Mohova Elena Viktorovna. the DOCTRINE of the BASIC MANUFACTURE AT the TRANSBOUNDARY INCONSISTENCY of LEGAL BODIES. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2009

More on topic practice of the Russian vessels in sphere legal regulation of a transboundary inconsistency:

  1. Chapter 3. THEORETICAL BASES And NORMATIVNOYOPRAVOVOE REGULATION of DISTRIBUTION OF POWERS of VESSELS ON EXCITATION of the BASIC MANUFACTURE AT the TRANSBOUNDARY INCONSISTENCY of LEGAL BODIES
  2. §3. Tendencies of development of legal regulation of an inconsistency of transboundary groups of the companies in the Russian Federation.
  3. Traditional doctrines legal regulation of a transboundary inconsistency
  4. §3. Sources of legal regulation of an inconsistency of transboundary groups of the companies.
  5. THE APPENDIX № 2 COMPARATIVE CHARACTERISTIC OF CRITERIA OF DISTRIBUTION OF POWERS OF VESSELS. THE VARIOUS STATES ON EXCITATION OF THE BASIC MANUFACTURE AT THE TRANSBOUNDARY INCONSISTENCY OF LEGAL BODIES
  6. distribution of powers of vessels of the various states but to excitation of the basic manufacture at a transboundary inconsistency: efficiency problems
  7. Is standard-legal models of regulation transboundary insolvent ti and distributions of powers of vessels of the various states on excitation of the basic manufacture
  8. §1. Models of regulation of an inconsistency of transboundary groups of the companies.
  9. THE APPENDIX № 1 COMPARATIVE CHARACTERISTIC OF THEORIES OF LEGAL REGULATION OF THE TRANSBOUNDARY INCONSISTENCY
  10. CHAPTER 2. PRACTICE OF REALIZATION OF SEPARATE POWERS OF THE CONSTITUTIONAL (AUTHORIZED) VESSELS OF SUBJECTS OF THE RUSSIAN FEDERATION IN SPHERE OF SELECTIVE LEGAL RELATIONS
  11. Chapter 2. The DOCTRINE ofthe BASIC MANUFACTURE In the ratio With OTHER THEORIES of LEGAL REGULATION of the TRANSBOUNDARY INCONSISTENCY
  12. §2. Features of disposal of legal proceeding about an inconsistency of transboundary groups of the companies: world experience.
  13. Lipaj Konstantin Anatolevich. «Features of an inconsistency of transboundary groups of the companies in the Russian and foreign right», 2014
  14. influence of judiciary practice of the European court under human rights on judiciary practice of vessels of the Euroasian member states of the Council of Europe (on an example of the Azerbaijan Republic and the Russian Federation)