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Digest 109

March 27, 2019 Subsribe

SPBILF 2019 News

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Legal Forum Live 2019

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“The reform is now in full swing”

The reform of Investor-State Dispute Settlement System is now in full swing. From debating the mere necessity of the reform, the discussion has currently proceeded to identifying the main concerns that require changes to the system, as well as to elaborating the particular proposals for amendments. This session will examine the main concerns regarding the current state of ISDS, as well as consider potential ways to address them efficiently.

The session may be of particular interest for international arbitration practitioners, lawyers of large corporations investing abroad, as well as for researchers and arbitrators.

“International courts frequently find that their attempts to resolve some factual disputes are hindered or even frustrated by a party’s failure to produce evidence”

There is no unified approach towards the issue of evidence within the system of international courts and tribunals. As a result, courts and tribunals frequently do not have clear rules on the taking of evidence. In practice, judicial bodies have developed specific solutions for some matters. Nevertheless, such methods and approaches may vary on a case-by-case basis. In these circumstances, legal certainty, including the clarity of procedural rights and obligations of the parties as well as of the court’s role in the taking of evidence, may not be provided and ensured.

One of the results is that international courts and tribunals frequently find that their attempts to resolve some factual disputes are hindered or even frustrated by a party’s failure to produce evidence. One of the ways in which a party may prevent the production of evidence is by refusing to disclose it on the grounds of privilege. As a result, the following questions may arise: (1) means of a court or tribunal to ensure the delivery of evidence by the parties; (2) non-disclosure of evidence and good faith; (3) non-disclosure and the burden of proof; (4) non-disclosure and duty to cooperate; (5) refusal to produce evidence and adverse inferences.

Solution of the mentioned questions may define the outcome of dispute and, therefore, their study requires special attention. In this regard, it should be noted that the issue of evidentiary privileges in international courts and tribunals is also becoming relevant in view of the increasing number of disputes involving the Russian Federation

The round table will be of particular interest to practicing lawyers (advisors and councils of the parties) and researchers in the field of international dispute resolution, judges, as well as representatives of state authorities responsible for representing the interests of the Russian Federation in various international courts and tribunals.

“It is time for the development of standards for good contractual practice of structuring such warranties and clarifying the most important issues”

As of June 1, 2015, Article 431.2 appeared in the Civil Code of the Russian Federation. This article regulates contractual warranties and liability for their inaccuracy. These new rules are aimed at regulating the common practice of including in the contracts of warranties by which the parties guarantee each other the accuracy of some information that is crucial for the partner’s decision to conclude the contract. Inclusion in the contract of such warranties is a common practice in the conclusion of a number of commercial contracts (including contracts for the sale of shares, shareholder agreement, and many others). Over the past period, judicial practice began to form, which raised a number of important questions of the interpretation of the law. Some explanations were formulated in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 49 of December 25, 2018.

In this regard, it is time for the development of standards for good contractual practice of structuring such warranties and clarifying the most important issues. This round table is aimed at the analysis of key aspects of the design of contractual warranties and the development of proposals for case-law development, optimization and standardization of contractual work. During the round table, participants will exchange views on the agenda items, assess the relevant legal risks and put forward their proposals.

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